author: Jayne, S. C. C.

text:
    THE ORDINARY OF THE STATE OF NEW JERSEY, PLAINTIFF, v. DANIEL BASTIAN, MABEL HOGUE, LAURA COIA, DEFENDANTS.
    Decided September 17, 1938.
    For the plaintiff, Nathaniel S. Hyman.

    For the defendant, Martin Bloom.

   Jayne, S. C. C.

This action is caused to be prosecuted by the Ordinary to establish the alleged forfeiture of the bond of an administrator. Rev. Stat. 1937, 3:8-20. The complaint alleges the execution and delivery of the bond to the Ordinary by the defendants and exhibits as a part of the complaint a a true 'copy of the bond which, in form and substance, is identical with those commonly presented. The breaches of the bond assigned are that the administrator has not administered the estate and has not made a just and true account. The present motion is made on behalf of the defendant Mabel Hogue, requesting the allowance of a rule striking out the entire complaint for the sole reason that ‘The complaint fails to set forth whether or not the person who has filed suit in the name of the Ordinary of the State of New Jersey is a creditor or a distributee.” It is not pretended that there is an absence of an order by the Ordinary to put the bond in suit. Counsel assure me that there was such order, although the granting of such an order is not alleged in the complaint. The complaint is not challenged by reason of. this omission. Nevertheless, cautious pleading in these cases recommends an averment that the action is brought by leave of the Ordinary for that purpose first had and obtained.

The pith of the argument in support of the motion seems to be that the complaint is insufficient in law unless it discloses that a party having an interest in the administration of the estate is aggrieved as a result of the particular breach assigned in the complaint. Ordinary v. Cooley, 30 N. J. L. 271, is adduced to substantiate this contention.

It is to be primarily recognized that under the statute the Ordinary does not assign the bond to an aggrieved party who thereafter institutes and prosecutes the action. The Ordinary becomes himself the plaintiff and the prosecution of the action continues to be under his discreet control. Lee’s Case, 43 N. J. Eq. 175; Borden v. Wolf Silk Co., Inc., 108 Id. 438; 155 Atl. Rep. 623.

In the Matter of Conrad Honnass, 14 N. J. Eq. 493, Chancellor Green, sitting as Ordinary, stated: “It is the duty of the Ordinary to see that the bond is not prosecuted at the instance of a stranger, or for the purpose of vexation or oppression.” In Ordinary v. Poulson, 43 N. J. L. 33, Chief Justice Beasley remarked: “The surrogate-general is the plaintiff on this record, and it would be a strange thing for this court to say that although he has exhibited a legal cause of action in his declaration, he is here without right. The power to decide when an administrator’s bond shall be put in suit is one of the prerogatives of the Ordinary.”

This court is not concerned with the determination of the Ordinary to put the bond in suit. His decree upon that subject must be regarded here as conclusive. In the action at law, however, the complaint must necessarily allege facts which constitute a breach of the bond. It has been held that the failure to render an account, in due form of law, is a breach of an administrator’s bond and may be assigned as such in an action by the Ordinary. Dickerson v. Robinson, 6 N. J. L. 195; Ordinary v. Snook, 10 Id. 65; Ordinary v. Barcalow, 36 Id. 15. Likewise the failure to administer the estate is a breach which may be assigned in an action on the bond. Ordinary v. Cooley, supra.

It is interesting to notice that in the Cooley case the declaration, like this complaint, failed to disclose whether the action was prosecuted at the instance of creditors or distributees. The judgment on the demurrer rested upon the conclusion that in the light of the undisputed facts expressed in the pleadings either, in the one event, the plea constituted a positive defense or, in the other event, there was no breach of the bond. The complaint at hand seems to present an incident quite converse to the circumstance in the Cooley ease. Here the complaint alleges a breach of the obligation to administer the estate which is a condition of the bond designed for the security of creditors and also assigns a breach of the duty to render an account which is a condition to secure the rights of persons entitled to share in the residue after payment of debts. Thus it may be said that whether the interest of the person at whose request this action is instituted is that of a creditor or distributee, the complaint alleges .the breach of at least one condition for his security. This idea nevertheless ignores the veritable and salutary object of pleadings. All pleadings should be such as to ultimately educe the actual controversial issue.

Moreover, this defendant is not the administrator and she is responsible only in case her principal has committed a breach of the bond. In actions of this purpose, the bond is sought to be forfeited to protect or secure the rights of some party who has, ex parte, represented to the Ordinary that he or she is aggrieved. Injury and loss resulting from the breach of the bond to one whose interest in the estate entitles such party to complain sets up the justification for the demand for indemnity. These facts become significant at the trial and therefore preferably should be pleaded to the end that it may be initially disclosed in virtue of what right the party claims to be aggrieved.

In the present aspect of this case, it seems discreet to afford the attorney for the plaintiff an opportnnity to promptly amend the complaint. The final disposition of the present motion will be deferred with that aim in view.

It is also observed that in the present complaint breaches of two conditions of the bond are alleged in the one count. At common law the plaintiff could not assign more than one breach in the same count and to have done so rendered the declaration bad for duplicity.


source: Caselaw Access Project

author: Jayne, C. C. J.

license: Public Domain

text:
    Atlantic County Circuit Court.
    FRANCES BROWN, PLAINTIFF, v. WALTER COMER, DEFENDANT.
    Decided September 27, 1938.
    For the plaintiff, Wm. Elmer Brown, Jr.

    For the defendant, Samuel Morris.

   Jayne, C. C. J.

This action is prosecuted to recover the principal and interest alleged to 'be due and owing to the plaintiff on the promissory note of the defendant. To the complaint an answer has been filed embodying two separate defenses, the first of which may be described as a general denial of all the allegations of the complaint and the second avers that the alleged cause of action accrued more than six years prior to the commencement of the action and that the action is therefore barred by the applicable provisions of the statute of limitations.

The plaintiff by this motion seeks the allowance of a rule striking out the answer and authorizing the entry of a summary judgment for the plaintiff. To sustain the motion, an affidavit of the plaintiff is submitted which verifies all the material and essential allegations of the complaint. The affidavit of the defendant is also presented. This latter affidavit is obviously composed to aid the counter-motion to amend the answer to which reference will be presently made.

The second defense is manifestly and palpably sham. The defendant in his affidavit admits the making and delivery of the promissory note on July 29th, 1932. The present action was commenced on June 14th, 1938.

A motion is made on behalf of the defendant to amend the answer. The defendant asserts in his affidavit that the transaction evidenced by the note in suit was tainted with usury. Hence the request to now implant in the answer an averment of usury.

The defense of usury must, of course, be specially pleaded by averments which declare the particular facts and circumstances of the supposed usurious agreement. Holdman v. Tansey, 8 N. J. Mis. R. 73; 148 Atl. Rep. 195; affirmed in this particular, 107 N. J. L. 378; 151 Atl. Rep. 873; Borok v. Colfer, 11 N. J. Mis. R. 430; 166 Atl. Rep. 637; Supreme Court rule 58.

It is the settled rule, however, that the time for answering will not be extended in order to allow the defense of usury to be interposed. It must be timely pleaded. Marsh v. Lasher, 13 N. J. Eq. 253, 255; Boehme v. Rall, 51 Id. 541, 546; 26 Atl. Rep. 832; Dunlap v. Chenoweth, 88 N. J. Eq. 496; 104 Atl. Rep. 822; Kobrin v. Hull, 96 N. J. Eq. 41; 124 Atl. Rep. 365; Mooney v. Petnick, 104 N. J. Eq. 357; 145 Atl. Rep. 641; Pitman Title and Trust Co. v. Bateman, 119 N. J. Eq. 595; 183 Atl. Rep. 479. This rule is recognized and adhered to at law as well as in equity. West Hoboken v. Syms, 49 N. J. L. 546; 9 Atl. Rep. 780.

Ho terms being voluntarily suggested, the motion to amend the answer must be denied.

An examination of the affidavits reveals that, aside from the asserted payment of usury, there is a dispute concerning the amount owing on the note. The defendant states that lie has made certain payments on account of the principal and interest and admits that he is indebted to the plaintiff for some balance. The first defense in the answer is a general denial. At the common law partial payments made prior to the institution of the action might be proved under the general issue, yet the defendant was not bound to plead generally but might also plead specially and thus create by such plea a distinct issue relating solely to the partial payments therein averred. 1 Chit. PI. *478, *480.

The plea of general issue was, of course, commonly regarded as a denial of the whole substance of the declaration. Therefore a plea purporting to be an answer to the whole declaration and which only averred partial payments or credits was bad on demurrer. A plea so composed as to answer only part of the plaintiff’s count was regarded as sufficient as far as it extended and the plaintiff might then enter a nolle prosequi as to that part of his alleged claim disputed by the plea or he might reply and thereby put the averments of the plea in issue. 1 Chit. Pl. *523; Flemming v. Hoboken, 40 N. J. L. 270; Grafflin v. Jackson, 40 Id. 440. Our Supreme Court rule requires a defendant to specially deny in his answer such allegations of fact in the complaint as he intends to controvert. He may deny all of the allegations of the complaint generally when and only when he intends in good faith to controvert all of them. Supreme Court rule 58. The beneficial object of pleadir.gs is to ultimately educe the true and actual controversial issue.

In the circumstances the application for summary judgment must be denied. The defendant may amend the answer by the averment of the payments claimed by him to have been made on account of the principal of the note and the interest thereon.


author: Grosman, A. M.

text:
    Elizabeth P. Parmly, petitioner, v. J. Frank Parmly, defendant.
    [Decided September 21st, 1938.]

      Messrs. Smith & Slingerland (by Mr. Frederick W. Smith), for the petitioner.

      Mr. Otto A. Stiefel, for the defendant.
   Grosman, A. M.

This is an application by the petitioner to reopen a final decree of divorce entered herein on the 1st day of March, 1920, and to amend the decree nisi so as to include a provision for alimony.

The petitioner obtained a decree nisi on the ground of desertion on December 20th, 1918. An allowance of alimony at the rate of $50 per month was included therein. Thereafter, the parties entered into an agreement bearing date October 20th-23d, 1919, purporting to settle said alimony in gross. This agreement was submitted to our late chancellor, Edwin E. Walker, for his consideration and he is alleged to have approved the same without any formal hearing of the parties, but merely by an inspection of the alimony provisions of the decree nisi and of the agreement itself. On the 31st day of December, 1919, a decree was entered modifying the decree nisi, by deleting therefrom the provision for the payment of alimony. Subsequently said decree nisi, as modified, was made final by a decree entered herein on the 1st day of March, 1920.

The parties rested under said “alimony agreement” until November 12th, 1937, some seventeen years, when the petitioner, finding herself on the verge of destitution, initiated the instant proceedings. The defendant has filed an answer in lieu of plea, setting up said “alimony agreement” and the decree of this court, allegedly approving same. He contends that this court is powerless to grant the petitioner any relief in the premises because:

1. A final decree having been entered herein, the present proceeding is in the nature of a bill of review and as such cannot be initiated by petition, but only by a strict bill of review, which will not lie at this late date, the time for appeal having expired.

2. A final decree having been entered in this cause, the defendant had and has a right to rely upon its finality and this court is without power to amend its decree at this late date.

3. An agreement to settle the petitioner’s alimony in gross having been entered into between the parties with the approval of the court, the petitioner has no right to ask for any further allowance and this court is without power to make her a^r award whatsoever.

The answer in lieu of plea was supplemented by the defendant’s motion to strike the petition, challenging the jurisdiction of this court to entertain petitioner’s application. In the present state of the ease, the defendant admits, for the purpose of this motion, all the facts properly pleaded. I shall consider the issues presented herein seriatim:

A decree in a matrimonial suit awarding alimony is at all times subject to the control of this court for the purpose of either increasing or reducing the amount allowed, in accordance with the altered circumstances of the parties. It differs in this respect from a final decree in a property suit. A matrimonial decree is final merely in respect to the status of the parties, but is at all times -open to modification in respect to alimony.

As far back as the year 1838, Chancellor Pennington, in the case of Richmond v. Richmond, 2 N. J. Eq. 90 (at p. 94), held:

“My impression, from looking at the statute is, that this court has the power at an3¡- time, on a changing of circumstances, to vary this allowance, by increasing or diminishing it; as the act speaks of ‘such maintenance and allowance as to the said court shall, from time to time, seem reasonable and just.’ * * *”

This rule has been consistently followed through the years. In Dietrick v. Dietrick, 99 N. J. Eq. 711; 134 Atl. Rep. 338, Vice Chancellor Bentley held that a final decree awarding alimony may be modified at any time.

ISTor is an application to modify a final decree in respect to alimony to be considered proceedings in the nature of a bill of review. A petition similar to the instant one is sufficient to invoke consideration of the issue.

In the case of Barrett v. Barrett, 41 N. J. Eq. 139, Chancellor Runyon entertained an application “by petition” to modify a final decree for the payment of alimony.

In Rigney v. Rigney, 62 N. J. Eq. 8; 49 Atl. Rep. 460, Chancellor Magie, in considering an application to modify a final decree of divorce, in respect to alimony (at p. 13), held:

“Application to vary a decree in this respect may be made by petition in the cause, Snover v. Snover, supra; S. C. 2 C. E. Gr. 85. Such an application is not one involving a review of the propriety of a decree as made. * * *”

It was further held in this case that an application for such modification would be entertained even though the decree for alimony does not reserve to the parties a right to apply for a modification of the amount awarded, when their circumstances have changed.

In Swallow v. Swallow, 84 N. J. Eq. 411; 93 Atl. Rep. 885, Backes, V. C., entertained and granted an application for alimony ten years after the entry of a final decree; and Ingersoll, V. C., in the case of Sweeney v. Sweeney, 95 N. J. Eq. 192 (at p. 194); 122 Atl. Rep. 877, held that:

“* * • * Even if the final decree is silent on the subject, application may be made concerning alimony at any time after final decree and after enrollment of the decree. (Oases cited.)”

The Divorce act itself specifically provides (1 Rev. Stat. p. 269 title 2:50-87) as follows:

“Pending a suit for divorce or nullity, or after decree of divorce, the court of chancery may make such order touching the alimony of the wife * * * as the circumstances of the parties and the nature of the case shall render fit, reasonable and just * *

I must therefore conclude that a final decree of divorce awarding alimony is at all times subject to modification by this court in respect to alimony, as the circumstances of the parties may require and equity and good conscience dictate; and that proceedings to effect such modification may be initiated by petition and not by bill of review.

My conclusions on the defendant’s first contention are dis-positive of his second argument.

The defendant’s third and last contention, that the petitioner having obtained an agreed sum in gross, in lieu of alimony is now without further rights in the premises; and that this court is without power to afford her relief, must be likewise decided adversely to its proponent.

It will be observed that the decree nisi, as originally entered herein on December 20th, 1918, awarded the petitioner alimony at the rate of $50 per month “having regard to other arrangements made between the parties for the support and maintenance of the said petitioner.” The decree modifying said decree nisi was entered on the 31st day of December, 1919, a year later, while the parties were still husband and wife. Sobel v. Sobel, 99 N. J. Eq. 376; 132 Atl. Rep. 803. This last mentioned decree merely provides in its ordering part for the deletion from the original decree nisi of the provision for alimony. It is wholly devoid in its decretal portion of any approval of the alleged alimony composition agreement between the parties. It is true that by way of recital, the decree of December 31st, 1919, states that:

“It appearing to the court upon inspection of an agreement between the above named parties, bearing date the 20th day of October, 1919, and duly acknowledged by the said Elizabeth P. Parmly that she has consented to the modification of the decree nisi in the above entitled cause in the maimer hereinafter set forth and that the said J. Prank Parmly has, by said agreement, provided for the payment a sum in gross to be paid to the said Elizabeth P. Parmly in lieu of alimony and maintenance, both now and at all times in the future and that such agreement should receive the approval of this court.”

But there the order stops. It is to be observed that the modifying decree of December 31st, 1919, does not in fact give any approval whatsoever to the agreement between the parties in lieu of alimony. The recitals contained in the decree are not a necessary part thereof and do not amount to an approval. They may in fact be omitted entirely. Bull v. International Power Co., 84 N. J. Eq. 209; 98 Atl. Rep. 86. In this case Walker, C., after reciting with approval Dan. Ch. Pl. Pr. (6th Am. Ed.), classification of the component parts of a decree (p. 211, supra- — at p. 215), further endorses that learned author’s statement to this effect:

“The ordering or mandatory part of the decree contains the specific directions of the court upon the matter before it.”

Recitals in a decree are permissible to explain briefly the reasons upon which the decretal or mandatory part of the decree is based, but they are not a substitute therefore. Standing alone, such recitals are of no legal effect. There is a marked difference between what a court thinks should be.done and what the court actually does.

The subject of alimony is one of peculiar concern to this court. It is an award made to a wife who has established by a preponderance of evidence that she has been grievously injured by her husband. Such an allowance is grounded in public policy to the end that a husband who has violated his solemn marital obligations by conduct amounting, under our law, to a marital offense shall nevertheless, be compelled to support his outraged spouse. The purpose of alimony has been excellently defined by Bentley, V. C., in Dietrick v. Dietrick, 90 N. J. Eq. 711, wherein (at p. 713), he quotes with approval the opinion of Sir J. P. Wilde, in Sidney v. Sidney, 4 Swab. & T. 178, to the following effect:

“* * * A very large number of the divorce cases since the act have been petitions by the wife for cruelty and adultery, or desertion and adultery. And among certain classes of the community a very common case indeed is that of a young husband who, either not agreeing with his wife or getting tired of her shortly after marriage, endeavors to shake her off. In this endeavor he generally begins by treating her with neglect and contempt, often half starves her, often beats her, often insults her by open adultery, and ends by deserting her and cohabiting with another woman. That the wife should desire a divorce in such case can hardly be a matter of surprise, and that she should obtain it is but bare justice. But is the very thing that the husband wants, too. He has succeeded in shaking off the obligations of marriage, and that by h is own voluntary breach of them. And if ho can part with his wife at the door of the divorce court without any obligation to support her, and with full liberty to form a new connection, his triumph over the sacred permanence of marriage will have been complete. * * * Ho man should, in my judgment, be permitted to rid himself of his wife, by ill treatment, and at the same time escape the obligation of supporting her.”

Pitney, J., speaking for the court of errors and appeals in the case of Lynde v. Lynde, 64 N. J. Eq. 736; 52 Atl. Rep. 694, referred to the allowance of permanent alimony in cases of absolute divorce “as a means of enforcing the continuing duty of support which the husband owed to the wife and of which he was not permitted to absolve himself by his own misconduct, although that misconduct resulted in the dissolution of the marriage.”

So it has been held that the parties may not, by a settlement agreement, withdraw from the chancellor the duty to award alimony on subsequently granting a divorce for adultery. Irwin v. Irwin, 98 N. J. Eq. 454; 131 Atl. Rep. 304 affirmed, 100 N. J. Eq. 347; that it is not a property right, subject to assignment, Greenberg v. Greenberg, 99 N. J. Eq. 461; 133 Atl. Rep. 768; Lynde v. Lynde (Court of Errors and Appeals), 64 N. J. Eq. 763; 52 Atl. Rep. 694; it is not a dischargeable debt in bankruptcy, Bolton v. Bolton, 86 N. J. Law 69; oven the court itself may not award alimony in a gross sum, nor in a portion of the real estate of the husband, without the consent of the parties. Calami v. Calami, 24 N. J. Eq. 440; 25 N. J. Eq. 548; Greenberg v. Greenberg, supra.

It is clearly the public policy of our state that the chancellor shall at all times retain his power to fix alimony unimpeded, to the end that he may reduce or increase the allowance as the circumstances of the parties may require, so that the wife shall be supported by the husband in accordance with his means and station in life, and on the other hand, that the husband shall, if his circumstances alter for the worse, be subject to no unjust exactment.

The only exception to the general rule that alimony is and at all times must remain wholly within the control of the chancellor seems to be that where the parties, on a divorce being granted, have entered into a composition agreement for the settlement of alimony in gross; and such agreement has been submitted to the court for approval; and the court thereupon has found upon investigation, not inferentially but factually, that the provisions for the support of the wife are for her benefit and adequate for her support, then and then only may it be said that the wife is not presently entitled to a further allowance by way of alimony. Sobel v. Sobel, supra; Greenberg v. Greenberg, supra; Irwin v. Irwin, supra.

The legal duty imposed upon the husband by law to support his wife cannot, even by this means, be avoided.

In Greenberg v. Greenberg, supra, the court had before it a practically similar situation. There a composition agreement attempting to settle alimony in gross was entered into between the parties. The sum agreed upon was in full satisfaction of any and all claims for present and future alimony by and on behalf of the petitioner. It seems that upon application for said order the solicitors of both parties and the petitioner personally, appeared; and that she expressed her complete willingness to accept the sum in lieu of any present or future alimony for her support and maintenance. An order was thereupon made by Chancellor Walker, upon the advice of one of his vice-chancellors, directing the payment of said moneys. Subsequently upon a change of circumstances, application for alimony was made. Walker, C., held, at page 468:

“* * * The statute contemplates that a wife cannot preclude herself by an agreement from invoking the aid of the court to obtain further maintenance, and that the subject shall be continuously dealt with according to the varying circumstances of the parties, ihe petitioner before me is, undoubtedly, entitled to seek an award of alimony for herself from the defendant, as well as maintenance for the child, notwithstanding the order for payment to her of a sum in gross in lieu of alimony. However, this petitioner, having appeared before the vice-chancellor, who advised the order for settlement, and ‘expressed her complete willingness to accept the sum of two thousand six hundrd and eighty-seven dollars ($2,687) in lieu of her right to present and future alimony for her support and maintenance/ she will, doubtless, have a heavier burden to carry in showing that she is entitled to have that settlement set aside and further alimony granted to her.
“In view of the law of alimony as established by the cases, if a husband enters into a composition agreement with his wife, whereby alimony in gross is agreed upon in discharge of his future and continuing liability to support her, nevertheless, in changing circumstances, he may be visited with an order for the payment of alimony in excess of any gross sum agreed upon between them in their settlement; and so it would seem if the sum settled upon the wife, through extravagance or misfortune, is dissipated, and she thereby becomes indigent. And it must be true, in any case, that if a wife either loses or squanders any gross sum settled upon her in lieu of alimony, and is driven to seek support from the overseer of the poor, her husband would be liable for her support in proceedings before a magistrate, in exoneration of the liability of the municipality.
“The result reached on this branch of the case is that the petitioner may proceed by application to the court itself for an award of alimony, notwithstanding the composition therefore reached by the parties and sanctioned by the court, for while in Sobel v. Sobel it was held that there would seem to be no good reason why alimony in gross should not be enforced, when assented to by the parties and the court of chancery, if the provisions for the wife were found to be suitable after the court has looked into the arrangement and their surroundings and found the provisions to be for the benefit of the wife and her adequate support, yet the order approving the settlement in this case does not recite or adjudge that the provisions for the wife were suitable and found to be for her benefit and adequate for her support, but, on the contrary, the order only recites that the wife appeared and ‘expressed her complete 'willingness to accept the sum * * * in lieu of her right to any present and future alimony for her support and maintenance;’ and in the ordering part it simply adjudged that the defendant pay to the petitioner the sum agreed upon, in full satisfaction of any and all claims for present and future alimony by or on behalf of the petitioner. It is one thing for a wife to express her willingness to accept a certain sum in lieu of alimony, and quite another for the court to ascertain and adjudge that the sum is suitable and adequate for her support.”

It will be observed that Chancellor Walker laid great stress upon the actual finding by the court of the required elements for the approval of an agreement settling alimony in gross and the incorporation thereof in the ordering part of the decree. The decree entered in the instant case on the 31st day of December, 1919, while the parties were still husband and wife, the final decree not having been entered until March 1st, 1920, contained no such adjudication. In fact said decree fails to make mention of any of the elements required to give a composition agreement of this nature validity, even by way of recital. It merely recites that the agreement between the parties had been inspected by the court, that the petitioner had consented to the modification of the decree nisi in the manner therein set forth; that the defendant had by said agreement provided for a payment of a sum in gross, to be paid to the petitioner in lieu of alimony and maintenance both now and at all times in the future; and that such agreement should receive the approval of this court.

In the Greenberg Case, Chancellor Walker comments on the fact that the wife appeared and “expressed her complete willingness to accept the sum * * * in lieu of her right to any present and future alimony for her support and maintenance” and adverts to this fact:

'“It is one thing for a wife to express her willingness to accept a certain sum in lieu of alimony, and quite another for the court to ascertain and adjudge that the sum is suitable and adequate for her support.”

The language in the Greenberg order was much more in line with the requirements of the law for the approval of an alimony composition agreement. In the case at bar we have not even the semblance of an approval. It is significant that the decree allegedly approving the alimony composition agreement in the instant case was signed by Chancellor Walker personally. Much emphasis is laid upon this fact by the respondent’s counsel. I am unable to attach any import to this circumstance. Judicial determinations are to be taken from judgments and decrees as made. It is the duty of counsel to prepare these pleadings in accordance with the determination of the court and when such decrees are entered they are presumed to fully set forth such adjudications.

It is also to be noted that Chancellor Walker in the Greenberg Case (at p. 468, 3), holds specifically that even if an agreement such as this had been approved by the court, nevertheless “in changing circumstances, he may be visited with an order for the payment of alimony in excess of any gross sum agreed upon between them in their settlement; and so it would seem if the sum settled upon the wife through extravagance or misfortune is dissipated, and she thereby becomes indigent. * * *”

It is true that by way of example the learned chancellor cites the instance of a wife who has dissipated her settlement and is about to become a public charge, in which event her husband would be required to support her in exoneration of the municipality. Nevertheless, he does not limit the husband’s liability, after a settlement of alimony in gross, to this one instance. A careful reading of his opinion indicates clearly that the husband’s obligation to support his wife upon divorce is a continuing one from which he may not escape even though he has attempted by an alimony composition agreement to rid himself of his future obligations to his wife. To this effect is the ease of Walker v. Walker, 118 N. J. Eq. 309. It is true that in that case the decree was one for separate maintenance, but this fact is not significant. Whether alimony is allowed under a decree of separate maintenance, a mensa el Choro or a vinculo, makes no difference. The husband’s duty to support his wife is not predicated upon the nature of the decree entered against, him, but is grounded in the marital status and flows as an incident therefrom. McGuinness v. McGuinness (Court of Errors and Appeals), 72 N. J. Eq. 381; 68 Atl. Rep. 768; reversing 71 N. J. Eq. 1. See, also, Baumgarten v. Baumgarten, 107 N. J. Eq. 274; 151 Atl. Rep. 606.

Seemingly, the only effect of a judicially approved alimony composition agreement is to foreclose a wife from securing any further allowance except in case of absolute and unavoidable destitution. In this event, the chancellor may, under his reserved power, make the petitioner a further award for her maintenance. Under such circumstances the grant made is one of grace and not of right. The burden of showing destitution is, of course, upon the petitioner and her application will be scrutinized with the utmost caution.

I am constrained to conclude that under the doctrine of the Greenberg Case, supra, irrespective of the intention of the parties, the alleged alimony composition agreement was not approved by the court in the manner required by law and consequently is not a bar to the petitioner’s right to apply for alimony at this time; that even if such approval had been properly obtained, nevertheless the husband must respond in alimony in view of the wife’s destitution.

The defendant’s answer in lieu of plea will accordingly be overruled and his motion to strike the petition, denied.

Submit an order on notice, in accordance herewith. I will fix the amount of alimony to be paid by the defendant to the petitioner on proof of her needs and the defendant’s faculties, which proof may be submitted in accordance with the usual practice of this court.

In view of the fact that an appeal may be taken, I will sign an order reopening the final decree and amending the decree nisi, by including therein a provision for temporary, nominal alimony, so that the defendant may present his case for consideration to the court of errors and appeals without delay. Upon determining what the amount of permanent alimony should be, the same will be included in the instant order by addition thereto as a footnote.


author: Rosecrans, C. P. J.

text:
    Warren County Court of Quarter Sessions.
    P. R. THATCHER, DIRECTOR OF WELFARE OF THE COUNTY OF WARREN, AND MARY G. BAILEY, APPELLANTS, v. LEON W. HACKETT, DEFENDANT-APPELLEE.
    Decided September 14, 1938.
    For the appellants, Robert B. Meyner.

    For the appellee, Saul N. Schechler.

   Rosecrans, C. P. J.

(Orally.) This is an appeal purporting to have been taken by the director of welfare from the finding of a magistrate sitting with a jury in a bastardy case under the statute. Rev. Stat. (1937), 9:17-1, &c. The defendant moves (1) to set aside the appearance entered by the director of welfare and dismiss the appeal on the ground that it was made by an attorney acting without authority and in this motion he is joined by the director of welfare; and (2) to dismiss the appeal because the record is barren of any finding by the jury, any order of discharge by the magistrate or any final judgment below.

The director of welfare was sworn and cross-examined and other oral testimony was taken in open court without objection in support of the first motion. In passing it may be observed that such motion is in the nature of a plea and when a motion must be supported by facts extrinsic the record the established practice at law is to take depositions in response to a rule — in Chancery by ex parte affidavits. Baldwin v. Flagg, 43 N. J. L. 495. The court may, however, direct otherwise.

There are two notices of appeal, one by the director of welfare and the other by Mary G- Bailey. Appearances for both were entered by the same attorney. The director of welfare testified that he did not authorize this attorney nor anyone else to take the appeal for him; that the attorney neither represented him nor the mother before the magistrate and that he never determined that the municipality was aggrieved by the decision below; that by reason of the evidence before the magistrate his opinion was changed as to the likelihood of the child becoming a public charge. He stated that he never ratified the act of the attorney in taking the appeal for him and objected whén he learned of the fact. His legal representative was and is the county counsel. The appellant’s attorney testified that he filed the notice of appeal in the name of the director of welfare prior to receiving authority from him but that in a subsequent telephone conversation with the officer his act was ratified.

Hnder the Bastardy act the proceedings are civil in nature (Montclair v. Eason, 92 N. J. L. 199; 140 Atl. Rep. 291) although strangely the statutory appeal is committed to the Quarter Sessions, a superior court of general jurisdiction in criminal matters. Hnder the modern rule long recognized in this state, courts may inquire into the authority of an attorney to appear for a party. Matera v. Hauptmann, 13 N. J. Mis. R. 483, 488; 179 Atl. Rep. 626. The authorities enunciating various phases of that rule are succinctly set forth in a recent opinion by Vice-Chancellor Berry in Lafetra v. Beveridge, 124 N. J. Eq. 184; 1 Atl. Rep. (2d) 68. A party plaintiff or the prosecutor of an appeal, as well as a defendant, may attack an unauthorized appearance entered for him. Anderson v. Crawford, 94 S. E. Rep. 574; L. R. A. 1918B 894.

An appeal under the statute may be taken by “the reputed father * * * or any municipality aggrieved * * Rev. Stat. 9:17-20. The director of welfare acts for the municipality in taking an appeal but he stands in a somewhat different position from an ordinary suitor for it is solely within his discretion to determine for the municipality whether it is aggrieved. Donnelly v. Passaic, 6 N. J. Mis. R. 247; 140 Atl. Rep. 561; Finnhandler v. Watts, 7 N. J. Mis. R. 889; 148 Atl. Rep. 880. In reaching such conclusion he may determine if anything has changed his previous opinion that the child is likely to become chargeable to the municipality.

The facts indubitably lead to the conclusion that the appearance for the director of welfare was entered without his authority. It is set aside and the notice of appeal is therefore a nullity. The result should in nowise be taken as any reflection upon the good faith of the attorney. There was a misunderstanding.

The court is without jurisdiction to entertain the individual appeal of the mother. It has been clearly pointed out by our Court of Errors and Appeals in an opinion by Judge (now Vice-Chancellor) Kays that the only proper parties to a bastardy proceeding are the municipality and the putative father. Kaufman v. Smarthers, 111 N. J. L. 52; 166 Atl. Rep. 453. On behalf of the mother it is contended that under section 3 of Rev. Stat. 9:16-1, &c., she has equal authority with the director of welfare to take an appeal. That argument is without substance, if for no other reason than that the original proceedings were not maintained under that act.

Determination of the second motion becomes unnecessary. It may be controlled by the reasoning in Nutt v. Arbitelli, 3 N. J. Mis. R. 1194; 131 Atl. Rep. 64.

The appeals are dismissed, but without costs.


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MORRIS SAVITT, PETITIONER, v. L. & F. CONSTRUCTION COMPANY AND NEW JERSEY MANUFACTURERS CASUALTY INSURANCE COMPANY, RESPONDENT.
    Decided July 19, 1938.
    For the petitioner, David Roskein.

    For the respondent, George E. Meredith.

   The facts, as disclosed by the testimony, indicated that on January 13th, 1936, the petitioner was employed by the respondent and while so employed, sustained an accident which arose out of and in the course of his employment. He was in an elevator on premises No. 106 Market street, Newark, New Jersey, in and about his duties of carpenter, when the said elevator dropped, causing severe and permanent injuries to the petitioner. The injuries sustained by the petitioner included fractures of both os caléis, together with injuries to his back and body. Petitioner was compelled to cease work immediately and was removed in an ambulance to the St. Michael’s Hospital where he remained until May 20th, 1936, under the care of Dr. J. Irving Port, and upon release from the said hospital, he continued under the care of Dr. Port until October 5th, 1936.

I find and determine, from the facts as stipulated and admitted and as disclosed by the testimony, as follows:

Petitioner suffered a permanent disability, for which petitioner is entitled to receive compensation to be paid by the respondent, for a period of four hundred weeks, at the compensation rate of $20 per week, in the amount of $8,000.

It appears that the said accident of the petitioner is alleged to have been proximately caused by the negligence of certain third parties, and by reason thereof, the petitioner became vested with a cause of action at common law against the said third parties in addition to his right of action under the Workmen’s Compensation act. The petitioner retained Harold Heller, Esq., a member of the bar of New Jersey, to investigate, institute and prosecute a common law action against said third parties and agreed to pay said attorney for the services to be rendered under said retainer, a sum equal to one-third of the amount of any settlement or recovery had against said third parties plus costs and expenses of investigation and suit, not to exceed $200. I find that the fees and expenses agreed to be paid by the petitioner to his said attorney, are reasonable fees and charges and are not in excess of those referred to in chapter 162 of the laws of 1936. Rev. 8tai. 1937, 34:15-40.

In March, 1936, a suit in the Essex County Circuit Court of New Jersey, was instituted by the said Harold Heller as attorney for the petitioner herein, against the said third parties and which suit or action was settled on or about May 27th, 1937, by the payment by the third parties in the sum of $12,000, and by reason of said settlement, and in accordance with his agreement aforesaid, the petitioner became obligated to pay his said attorney, Harold Heller, the sum of $4,200, being $4,000 as and for his fee, and $200 as and for his expenses and costs incurred. Upon execution and delivery of the release of the petitioner and in consummation and in payment of said settlement, the said third parties and their insurance carrier delivered to the petitioner a series of checks totaling $12,000. One of the said checks was that of the Maryland Casualty Co., the insurance carrier of one of the said third party tort feasors, in the amount of $1,382, to the order of the petitioner herein, Harold Heller, Esq., his attorney, and the New Jersey Manufacturers’ Casualty Insurance Co., the insurance carrier of the respondent herein. This check was issued, drawn and delivered as aforesaid for apparently the following reasons:

From the date of the accident and for a period of thirty-eight weeks thereafter, and until approximately October 5th, 1936, the New Jersey Manufacturers’ Casualty Insurance Company paid to the petitioner on account of his temporary disability, the sum of $20 for each week, or a total of $760, and subsequent to October 5th, 1936, to approximately May 3d, 1937, the said respondent’s carrier paid to the petitioner on account of his permanent disability, the sum of $20 for each week, totaling $600. In addition thereto, the said New Jersey Manufacturers’ Casualty Insurance Company paid a $22 medical bill. These payments so made, therefore, amount to $1,382. The said New Jersey Manufacturers’ Casualty Insurance Company served notice of the making of said payments upon the third party tori feasors and the Maryland Casualty Company, the insurance carrier of one of the third parties and claimed reimbursement therefor. The said Maryland Casualty Company apparently made and delivered the aforesaid check of $1,382 payable in the manner above indicated, in order not to become involved in a dispute between the petitioner and the petitioner’s attorney and the respondent herein or its insurance carriers, with reference to the rights in said check and the sum 'of $1,382 represented thereby.

The petitioner received the balance of said settlement after the deduction of the aforesaid check, which sum received by him amounted to $10,618. He paid out of this sum to his said attorney, Harold Heller, the sum of $4,200, being the fee, expenses and costs due the said attorney under the retainer agreement entered into as aforesaid. In addition, liens therefore having been filed, the petitioner paid out of said sum of $10,618, medical fees to Dr. J. Irving Fort, in the amount of $500, to St. Michael’s Hospital, $923, and to the Hewark City Hospital, $7, all of which total $1,430. Thus, the net amount had and received by the petitioner, was the sum of $4,988.

It becomes necessary to determine the amount and the extent of credit to which the respondent is entitled to be released from its liability under the Workmen’s Compensation act in this case, by reason of the moneys paid to the petitioner in settlement of the third party action.

The petitioner contends that the respondent is entitled to a credit of $7,800 on account of its liability herein, and asserts that the respondent is released of its liability only to the extent of the petitioner’s net recovery from the third parties, that is, the sum of $12,000, less $4,200 for expenses of suit and attorney’s fees, as aforesaid. The petitioner relies upon and contends that the rights of the respective parties hereto are controlled by chapter 162 of the laws of 1936 {Rev. Stat. 1937, 34:15-40), and not by chapter 279 of the laws of 1931, and this notwithstanding the fact that the accident occurred approximately five months prior to the enactment of chapter 162 of the laws of 1936. The respondent contends and makes claim for a credit .of $12,000 which is the full amount paid by the third parties in settlement of the common law action brought by the petitioner, and predicates its claim upon the fact that on the date of the occurrence of the accident herein, the statute applicable was chapter 279 of the laws of 1931.

1 find and determine that it is not material or dispositive of the rights of the parties that the accident herein occurred prior to the passage of chapter 162 of the laws of 1936. I hold and determine that the rights of the respective parties herein are controlled by the aforementioned statute and not by chapter 279 of the laws of 1931.

Chapter 162 of the laws of 1936 releases respondent or its insurance carrier from liability only to the extent of the recovery of the third parties after expenses of suit, not in excess of $200, and attorney’s fees, not in excess of thirty-three and one-third per cent., have been deducted therefrom. Chapter 162 of the laws of 1936 does not change the substantive rights of the parties hereto and impairs no obligation of contract. It does not violate any federal or state constitutional provisions. The contractural obligation of the employer has always been to pay full compensation to' the employe in accordance with the act. Chapter 162 of the laws of 1936 does not enlarge this liability. It merely regulates to the end that the employe will receive full compensation for his injuries in accordance with the statute. If chapter 162 of Pamph. L. 1936 effects a change in the law, the change effected is merely a procedural or remedial change and, therefore, violates no constitutional rights of the respondent. J. W. Ferguson Co. v. Seaman, 119 N. J. L. 575; 197 Atl. Rep. 245.

It is not material that the accident herein occurred prior to the passage of chapter 162 of the laws of 1936. It seems to me that either the date of the payment by the third parties, which is May 27th, 1937, or the date of the entry of the award in this court, is controlling. Ho rights accrued to respondent or its insurance carrier until actual payment by the third parties. In a very analogous situation in McLaughlin v. Hahne & Co., 12 N. J. Mis. R. 6; 169 Atl. Rep. 543; affirmed, 130 N. J. L. 32; 172 Atl. Rep. 566, it was held that the date of the occurrence of the accident is not determinative of the rights of the parties, but that the rights of the parties are determined as of the date of the award. This doctrine was repeated with approval by the Court of Errors and Appeals, in J. W. Ferguson Co. v. Seaman, supra.

The right of reimbursement sought by the respondent, in my opinion, is an action in rem. The right of the respondent is against the moneys collected by the petitioner in the third party action hereinbefore referred to. The res was not cheated until subsequent to the adoption of chapter 162, laws of 1936, in that the settlement was not made until some time subsequent thereto. It is my opinion that the law in effect at the time of the creation of the res is applicable. For the foregoing reasons, I find and determine that the respondent, by reason of the third party settlement, is entitled to a credit of $7,800 on account of its liability to the petitioner under the Workmen’s Compensation act.

In the instant case, the recovery herein, under the Workmen’s Compensation act, exceeds the amount recovered from the third parties, less costs and attorney’s fees. Under such circumstances, the rights of the parties are governed by section 23 (f)-3, as amended by chapter 162 of the laws of 1936. Rev. Stat. 1937, 34:15-40(c). This section holds that the employer is liable only for the difference between the amount of the employer’s or insurance carriers’ liability under the statute a'nd the sum recovered by the employe from the third parties less attorney’s fees and costs. This section further provides that the employer or his insurance carrier “shall be entitled to be reimbursed as hereinafter provided for so much of the medical expenses incurred and compensation payments theretofore paid to the injured employe or his dependents as exceeds the amount of such difference.” The petitioner concedes that the respondent is entitled to an additional credit on account of its total liability hereunder to the extent of $1,382, heretofore paid out by the respondent’s insurance carrier. With this contention, I agree and I therefore find and determine that the respondent is entitled to an additional credit in the amount of $1,382 on account of its total liability under this act.

After deducting from the said sum of $12,000 paid by the third parties to the petitioner in settlement as aforesaid, the legal fees and expenses in the sum of $4,200 and the medical and other charges actually paid by the petitioner and which should have been properly paid by the respondent in the sum of $1,430, the petitioner has actually left only $6,370 which should be applied toward the disability payments under the Workmen’s Compensation act; that in addition thereto, petitioner has received from the respondent or its insurance carrier, the sum of $1,360 toward his temporary and permanent disability payments, thus making a total of $7,730 already received by the petitioner which represents disability payments for a period of three hundred eighty-six and one-half weeks, from January 13th, 1936, at the rate of $20 per week.

I therefore find and determine that payments by the respondent or its insurance carrier on account of disability, shall be deferred and postponed until there shall have been exhausted by the application of $20 per week, for a period of three hundred and eighty-six and one-half weeks from January 13th, 1936, the net proceeds hereinabove referred to already received by the petitioner in the sum of $7,730.

It is therefore, on this 19th day of July, 1938, ordered that judgment final be entered in favor of the petitioner and against the respondent, and its insurance carrier, the New Jersey Manufacturers’ Casualty Insurance Company, as follows:

For temporary disability, a period of thirty-eight weeks, at the compensation rate of $20 per week, commencing January 13th, 1936, to October 5th, 1936 ............................... $760.00

For permanent disability, one hundred per cent, of permanent total disability, equivalent to a period of four hundred weeks at the rate of $20 per week, in the amount of............. 8,000.00

For medical and hospital expenses hereinabove referred to .............................. 1,430.00

$10,190.00

And it is further ordered, that on account of said judgment aforementioned in the total sum of $10,190 the respondent is entitled to a credit of $7,800, being the net recovery from the third parties hereinabove referred to, after deducting attorney’s fees and costs, and the respondent is entitled to an additional credit and not reimbursement, of $1,360, heretofore paid by the respondent, leaving therefore $1,030 remaining to be paid hereunder by the respondent.

And it is further ordered, that at the expiration of three hundred and eighty-six and one-half weeks from January 13th, 1936, the respondent pay to the petitioner the balance of $1,030, in weekly payments of $20 each until the said balance is paid in full.

$$$$$$$

John J. Stahl, Deputy Commissioner.


author: Per Curiam.

text:
    BOROUGH OF NEPTUNE CITY, PROSECUTOR-APPELLANT, v. RULIF V. LAWRENCE, JUDGE, ET AL., DEFENDANTS-RESPONDENTS.
    Submitted May 3, 1938
    Decided July 22, 1938.
    Before Justices Case, Donges and Porter.
    For the prosecutor, Joseph R. Megill.

    For the defendants, Durand, Ivins & Carton.

   Per Curiam.

This writ brings up for review an order of the judge of the Monmouth Circuit Court correcting assessments for local improvements in the borough of Neptune City, upon appeal under the Home Rule act (Pamph. L. 1917, ch. 152), and the amendments thereof.

The improvement involved was a sanitary sewer system completed in 1929, consisting of a disposal plant, outfall line, ehloriuator and treatment plant, and sewer mains. The net cost of the entire project was $] 99,858.16, which cost was apportioned to treatment plant in the sum of $101,846.33 and for sewer service in the sum of $98,011.19. The cost of the sewers was assessed against the properties to be served by dividing the cost by the front footage of such properties. The cost of the treatment plant was apportioned to the area determined to be available for drainage to the sewer lines by dividing such area into units of one hundred square feet and the total number of units divided into the cost of the plant.

We are asked to reverse and set aside the order of the Circuit Court on the ground that it is not supported by the weight of the evidence before the Circuit Court on the appeal.

The Circuit Court judge carefully weighed the evidence and concluded that the assessments appealed from were not just and fair assessments, having regard to the benefits conferred, and made an order correcting same. Carton v. Borough of Neptune, 16 N. J. Mis. R. 5; 196 Atl. Rep. 672.

A careful review of the evidence and proofs satisfies us that the order of the Circuit Court judge was warranted and that this court should not set aside the order under review on the ground that the conclusiveness of the proofs does not sustain it.

The order under review is affirmed, and the writ of certiorari is dismissed.


text:
    Burlington County Circuit Court.
    THE PEOPLE OF THE STATE OF NEW YORK v. ELLIS PARKER, Jr., ET AL., DEFENDANTS.
    Decided May 25, 1936.
    For the state, Joseph Lanigan, assistant attorney-general of New Jersey (Francis A. Madden, assistant district attorney).
    For the witness, James Mercer Davis and James Mercer Davis, Jr.

   Jayne, C. C. J.

Application is made to me as a judge of a court of record of the county of Burlington by the district attorney of the county of Kings in the State of New York for the issuance of a “summons” commanding one Anna Bading, a citizen of this state and a resident of the county of Burlington, to personally appear and to testify in a certain criminal proceeding now in progress before the grand jury of the county of Kings. The sessions of the grand jury are being held at the Central Courts Building in the borough of Brooklyn. This is apparently the initial application made to any judge of this state pursuant to the provisions of the recently enacted statute, Pamph. L. 1936, ch. 40. The witness has been afforded a hearing at which the present application was resisted upon several grounds.

Obviously the object of this statute is to promote the enforcement of the criminal laws and the administration of justice in criminal proceedings in the several states. The presumed validity of a duly enacted statute is not destroyed merely because the power sought to be exercised under the statute is novel. It ought, however, to be commonly understood that notwithstanding the recognized object and purpose of a statute, a judge is never at liberty in the enforcement of such statute to disregard any mandate or requirement of the organic law of the state or nation.

In resisting the present application counsel for the witness has projected for consideration several interesting questions relating to the constitutionality of this statute. To dispose of the present application only one of the contentions need be determined.

Article IV, section VII, paragraph 4 of the constitution of this state requires, inter alia, that every law shall embrace but one object and that object shall be expressed in the title. The title of our statute is as follows: "Uniform act to secure the attendance of witnesses from without the state in criminal proceedings.” It will be at once perceived that section 3 of the statute contains complete and adequate provisions for the accomplishment of the precise object stated in the title. Section 2 of the statute relates to witnesses who are present in this state and to the compulsory attendance of such witnesses in another state. The present application is founded upon section 2 of our statute. Our reported cases uniformly hold that by reason of our constitutional provision the title of a statute is a limitation upon the enacting part of the law and that the statute can have no effect with respect to any object that is not expressed in the title. The authorities concerning this subject are too familiar and numerous to require citation here. It remains to consider whether the object of section 2 requiring witnesses in this state to appear and testify in another state is expressed in the title of our statute. It has been said that "the criterion in these cases is to ascertain as nearly as practicable what impression as to the object of a statute its titular expression is calculated to disseminate.” Falkner v. Dorland, 54 N. J. L. 409; 24 Atl. Rep. 403. Assuredly a title -which is misleading, by reason of its specific and limited reference to one definite object where another is embraced in the act, is faulty. True, the title of a statute meets the constitutional requirement when it mentions the subject-matter generally and is accompanied with a succinct indication of the legislation concerning it. The title of this statute is not expressive of such a general subject as to create the inference that the statute, under such title, contains provisions requiring witnesses from within this state to appear and testify in some other state. The conclusion seems irresistible that the summoning of witnesses in this state to testify in another and the summoning of witnesses from another state to testify in this state are two essentially different matters in that the distinct and specific mention of only one of such matters is not reasonably indicative of the other. The following reported cases are illustrative: Hendrickson v. Fries, 45 N. J. L. 555; Dobbins v. Northampton, 50 Id. 496; 14 Atl. Rep. 587; Falkner v. Dorland, 54 N. J. L. 409; 24 Atl. Rep. 403; Polhemus v. State, 57 N. J. L. 348; 30 Atl. Rep. 480; Schenck v. State, 60 N. J. L. 381; 37 Atl. Rep. 724; Griffith v. City of Trenton, 76 N. J. L. 23; 69 Atl. Rep. 29; Wilson v. Smith, 81 N. J. L. 132; 79 Atl. Rep. 272. Sections 2 and 3 of the statute are only reLated in the sense that the provisions of section 2 of our statute may be said to constitute the consideration motivating the enactment of reciprocal legislation in other states. The statute enacted by the legislature of the State of New York was offered in evidence and I observe with interest that the title of the statute there enacted employs the words “a uniform laiv to secure the attendance of witnesses from iviihin and without the state in criminal proceedings.” (Italics mine.)

It is likewise significant to note that our earlier statute of 1934 (Pamph. L. 1934, p. 737) was given the title “An act relating to courts having criminal jurisdiction and regulating proceedings for the attendance of witnesses in criminal cases.”

It is argued that the title of our present statute is expressive of the broad subject-matter of securing the compulsory exchange of material witnesses by the several states. It is said that the language “from without the state” has the import and meaning of the words “from without a state” or “from without any state.” Hot so. The word “the” as employed in this title will be commonly understood to be definite and explicit. In common understanding the words “the state” will be taken to mean the State of New Jersey. Therefore with respect to the provisions of section 2, the title is not only silent but misleading. The provisions of section 2 are not within the purview of the present title. For this reason, that portion of the statute (section 2) becomes inoperative and in consequence the present application is without legal basis.

The application is denied.


author: Rogers, A. M.

text:
    Anna Suozzo, petitioner, v. Joseph Suozzo, defendant.
    [Decided October 22d, 1938.]

      Mr. Wilbur L. Ross, for the petitioner.

      Mr. William J. O’Hagan, for the defendant.
   Rogers, A. M.

This is an application to hold defendant in contempt for failure to pay permanent alimony awarded after decree of absolute divorce. The order provided for payment of $7 per week, and it is charged that he has failed to pay since March 29th, 1937, and is in arrears $455.

The defendant counters with a petition to vacate the order for alimony alleging petitioner’s remarriage in April, 1937, and alleging adultery since that time.

The applications came on for hearing at the same time upon the return of the orders to show cause granted upon the petitions, and petitioner objected to defendant’s counter application being heard until he had fully satisfied the arrears under the alimony order. Of course, it is the rule that a contemnor of an alimony order will not be heard upon his application for modification, or rescission, until he has satisfactorily settled his default. However, the rule is not without exception. It is addressed to the sound discretion of the court, and may be relaxed where its application would not serve its underlying purpose. The rule may not be invoked to suppress a good defense, nor to accomplish an inequitable purpose.

Assuming the truth of the allegations of the counter-petition, it is in substance a defense to the petition to adjudge defendant in contempt. It has been held under our statute (Rev. Stat. 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 76, page 621).

Certainty, to compel the former husband to settle the arrears before hearing the counter-application would be unjust and so, even though defendant’s previous conduct toward the order shows unwillingness to obey. Furthermore, in this matter the petitioner instituted the proceeding. The defendant brought his application in response to it. To conclude the applications together is expeditious and not harmful to petitioner. Under the circumstances the objection raised is without merit.

Upon the oral hearing defendant offered no proof that petitioner had ceremonially remarried. The evidence submitted bears wholly upon petitioner’s cohabitation with Louis Greenberg and their reputation of marriage. Though I am satisfied the proofs show that petitioner and Greenberg engaged in sexual intercourse during July and August, 1938, the evidence of an existing marital relationship is far from conclusive. Maxwell v. Maxwell, 98 N. J. Eq. 493; 131 Atl. Rep. 215. The lack of evidence of a ceremonial marriage and the failure to establish clearly and convincingly a marital cohabitation and marital reputation warrant holding that defendant has failed to sustain these allegations essential under the statute for the relief asked.

It is urged that petitioner, by illicit relationship with Greenberg, has forfeited her right to alimony from defendant and that the order may be justly vacated. No cases are cited in support of this contention, and so far as I have been able to discover this question has not been alluded to in any reported opinion in this state. The authorities I have carefully’ examined appear to hold to the contrary in all cases of absolute divorce under statutes silent upon any such limitations on alimony. See 19 C. J. 277 628, and footnotes and annotations thereto; 45 L. R. A. (N. S.) 875. The court of appeals of New York so held in Hayes v. Hayes (1917), 220 N. Y. 596.

Counsel cites my memorandum filed in this cause on a previous application for rescission of the alimony order as authority on this application for vacating the order upon the ground of sexual misconduct. The former application was denied because the charges were not sustained. The discussion in the memorandum of this question is clearly dicta. A more careful consideration of this subject now leads me to the conclusion that as a matter of law, if not logically, unehastity of a former wife is not a defense to her right to alimony’ after absolute divorce, nor justification for retracting an award previously made to her under our statute. It is, at most, a factor that in a proper case may be considered as bearing upon the amount of, and the necessity for the allowance.

Nor is the petitioner’s right to alimony defeated by invoking the doctrine of “unclean hands.” Equity does not repel all sinners. To apply this rule the proven misconduct must be directly related to the subject-matter upon which relief is being sought. Neubeck v. Neubeck, 94 N. J. Eq. 167; 119 Atl. Rep. 26. Petitioner was absolved from all marital obligation to defendant by her decree for absolute divorce. Save as a member of the public she owed him no duty to lead a virtuous life. On the other hand his obligation to support her after dissolution of the marriage continued without any reciprocal obligation owed him.

Such is the plain import of our statute as to alimony following absolute divorce. The subsequent misconduct of the former wife regardless of its nature cannot defeat her right to alimony though it may have material bearing upon the nature and amount of the allowance from time to time.

There is no justification upon the evidence for decreasing the amount in the alimony order because of the circumstances of petitioner’s misconduct, or defendant’s inability to pay as ordered. Except for small contributions from Greenberg the petitioner has no income, nor substantial ability to support herself. The amount of the alimony award is no more than bare subsistence. The record discloses no substantial change in defendant’s earning capacity since the entry of the order in 1935. With that adjudication admeasuring his ability to respond to his obligation to support his former wife the burden is upon him to show clearly changed circumstances since, if he is to obtain a reduction in the order. He has not only failed in this respect, but the proofs offered are obviously not such as he could have submitted if his earnings have been as small as he contends. He is still in his regular business, and at his old stand and paying higher rent than in the past, employing one helper regularly and another on piece work. He submits no records to justify his claim of ekeing out a bare existence, though he has been aware of the importance of such records since he opposed the allowance of alimony originally in this cause. It is reasonable to conclude that he is earning at least as much, if not more than, his regular employe.

It clearly appears that he could have and can respond fully to the order if he would. His failure to have done so constituted contempt. An order may be entered accordingly with costs and counsel fee of $50 to petitioner. The application for vacating the alimony order is dismissed with costs and a counsel fee of $50 to petitioner.


author: Vorsanger, D. C. J.

text:
    Third Judicial District Court of Bergen County.
    STATE OF NEW JERSEY, PLAINTIFF, v. PACKARD-BAM-BERGER & COMPANY, INCORPORATED, A NEW JERSEY CORPORATION, DEFENDANT.
    Decided October 24, 1938.
    For the plaintiff, Meyer Pesin.

    For the defendant, Losche & Mounier.

   Vorsanger, D. C. J.

This is a ease on motion to dismiss the complaint, based on information and belief, in an action wherein the State of New Jersey appears as plaintiff, and Packard-Bamberger & Co., Inc., a New Jersey corporation, as defendant.

The action is based upon, section 2 of the laws of 1938, chapter 394, known as the “Pair Sales act,” providing:

“It is hereby declared that the advertisement, offer for sale, or sale of any merchandise at less than cost by retailers is prohibited.”

The act further states that any such suit may be instituted in a District Court in any city, or Judicial District in any county “* * * upon filing of a complaint in writing, duly verified, * *

The defendant moves to strike the complaint on two grounds:

1. That the complaint does not set forth a valid cause of action because the complainant has failed to state the source of his information and the grounds for his belief and, further, that the complaint is not verified.

2. That the said act, known as the “Pair Sales act,” is unconstitutional and should be so declared.

In the opinion of the court, the defendant’s second contention, that the act is unconstitutional, is correct. It is unnecessary, therefore, to discuss the first ground.

I find that nowhere in the constitution of New Jersey nor in any statute, is there any provision denying or prohibiting to any court the right to rule upon the question of the constitutionality of an act in a proper case. As to the right of the District Court to pass upon the constitutionality of a statute, I know of or find no such restriction. If the question of constitutionality is directly drawn into a question, and that question must be decided to determine the matter, “a proper case” is presented and the duty to pass upon the constitutionality cannot be avoided.

In Lent v. Tillson, 140 U. S. (at p. 329), it is said:

“The judge or judges of that court [referring to a county court of a state] were obliged, by their oath of office, and in fidelity to the supreme law of the land, to refuse to give effect to any statute that was repugnant to that law; anything in the statute or the constitution of the state to the contrary notwithstanding.”

In 2 American Jurisprudence 714, the following rule is stated:

“When it is clear that a statute transgresses the authority vested in the legislature by the constitution, it is the duty of the courts to declare the act unconstitutional because they cannot shrink from it without violating their oath of office.”

The legislative intention that District Courts should, in “proper cases,” rule upon the constitutionality of statutes, is distinctly expressed in Rev. Stat. (1937) 2:8-10, as to the oath of District Court judges:

“I, (A. B.) do solemnly promise and swear that I will administer justice without respect to persons, and faithfully and impartially perform all the duties incumbent upon me as judge of--District Court of the City of- (or of the - Judicial District of the County of -) according to the best of my ability and understanding, agreeably to the constitution and the laws of the State of New Jersey, so help me God; and I do sincerely profess and swear that I do and will bear true faith and allegiance to the government established in this state, under the authority of the people, so help me God.”

Under our system of government, it would appear that every American court has the right to determine the constitutionality unless such right has been expressly limited or removed. All constitutional courts have such power which cannot be taken away by legislation. All other courts are vested with the power, unless it is expressly denied.

In the case of Pollock v. Farmer’s Loan and Trust Co., 157 U. S. 429, Mr. Chief Justice Duller, speaking for the United States Supreme Court, states (at ¶. 554) :

“Necessarily the power to declare a law unconstitutional is always exercised with reluctance, but the duty to do so in a proper case cannot be declined and must be discharged in accordance with a deliberate judgment of the tribunal in which the validity of the enactment is directly drawn in question.”

The defendant admittedly advertised loss leaders to attract customers to its store to sell, in addition to the loss leaders, other merchandise priced at a normal profit ratio. There certainly is no pernicious fraud in that practice as long as the goods are advertised and sold at the prices stated. The fraud appears when customers order the goods advertised and are told that the line has been sold out and substitutes are offered at higher prices.

On argument there was, and in counsel’s brief there is a long discussion as to whether the “Pair Sales act,” in prohibiting the selling of an article below cost, is contrary to public policy. Plaintiff relies upon cases in the Supreme Court of the United States, and state reports, as follows: Lynch v. City of Long Branch, 167 Atl. Rep. 664; In re Merrill, 88 N. J. Eq. 261; 102 Atl. Rep. 400; Nebbia v. New York, 291 U. S. 502; State, ex rel. Doyle v. Newark, 34 N. J. L. 236; Miles Medical Co. v. Park, 220 U. S. 372; Park Sons Co. v. Hartman, 153 Fed. Rep. 24; Old Dearborn Dist. v. Seagram Distillers, 57 Sup. Ct. Rep. 139; Johnson & Johnson v. Weisbard, 191 Atl. Rep. 873; 41 C. J. 114, § 77; Boston Store v. American Gramophone, 246 U. S. 8; Ingersoll v. Hahne, 88 N. J. Eq. 222; Tyson v. Banton, 273 U. S. 418; 58 A. L. R. 1236.

I think that, at least, it is safe to say that the most enlightened judicial policy is to let people manage their own business in their own way, unless the ground for interference is very clear; as for example, the milk industry. I believe we cannot too greatly exaggerate the value and importance to the public of fixing a fair price in competition.

Pixing the price on all goods is a very different thing from fixing the price on one kind of article. The one means destruction of all competition and of all incentive to increase excellence of the product; the other means heightened competition and intensified incentive to increase quality.

Citing Wilentz v. Crown Laundry Service, Inc., 116 N. J. Eq. 40; 172 Atl. Rep. 332:

“PTo common law right has been more firmly established or treasured than the right of the individual to sell his goods or his services at whatever price he and the purchaser might agree upon.”

Although the “Pair Sales act” might help a few selfish interests, it would be detrimental to the public as a whole. The buying public would be forced to purchase articles at higher prices, increasing the cost of living. The legislature fixing prices must be directed to articles which are affected with a public interest and not take away the common law rights of the people.

In Tinsman v. Belvidere Delaware Railroad Co., 26 N. J. L. 148, the court stated that:

“Statutes in derogation of common law rights are to bo strictly construed and we are not to infer that legislature intended to alter the common law practice any further than expressed, or any more than the case absolutely requires.”

In the instant case, not only is the ground for interference by the legislature not “very clear,” but no ground for any interference whatever has been shown, which in any manner whatsoever justifies the deprivations or limitation of the unquestioned rights of individuals. The “Fair Sales act ” under the American concepts of government and economics, is a deprivation of clearly defined property rights without due process of law. It is not at all denied that there are many instances in which states do have the right to fix prices, or to state even more accurately, to limit or restrict the clear and unequivocal common law right of the individual to fix his own prices in free competition. The first and underlying question to settle is whether the defendant can be deprived of his common law right or even his constitutional right to fix his own prices. That this is so self evident from the very words of article IX, of the Federal Constitution, which states unequivocally:

“Eights reserved — the enumeration in the constitution of certain rights, shall not be construed to deny or disparage other rights retained by the people.”

The United States Supreme Court, in the case of Tyson v. Banton, 273 U. S. 418 (at p. 429), states:

“In the endeavor to reach a correct conclusion in respect to this inquiry, it will be helpful, by way of preface, to state certain pertinent considerations. The first of these is that the right of the owner to fix a price at which his property shall be sold or used is an inherent attribute of the property itself. Case of the State Freight Tax, 15 Wall. 232, 278, and, as sneh, within the protection of the due process of law clauses of the fifth and fourteenth amendments. See City of Carrolton v. Bazzette, 159 Ill. 284, 294.”

As previously stated, that it is not denied that there are instances in which the states can limit or restrict the right of the individual to fix his own prices. Those instances, as it is readily admitted by the plaintiff here, fall within a very narrow classification. In words so strong and clear that reasonable persons cannot possibly differ as to their meaning, the Supreme Court of the United States has given the formula.

In Williams v. Standard Oil Co., 278 U. S. 235, the court said (at ¶. 239) :

“It is settled by recent decisions of this court that a state legislature is without constitutional power to fix prices at which commodities may be sold, services rendered, or property used, unless the business or property involved is ‘affected with a public interest.’ Wolf Co. v. Industrial Court, 262 U. S. 522; Tyson v. Banton, supra; Fairmont Co. v. Minnesota, 274 U. S. 1; Ribnik v. McBride, 277 Id. 350. Nothing is gained by reiterating the statement that the phrase is indefinite. By repeated decisions of this court, beginning with Munn v. Illinois, 94 Id. 113, that phrase, however it may be characterized, has become the established test by which the legislative power to fix prices of commodities, use of property, or services, must be measured.”

The question, “when is a business ‘affected with a public interest,’ ” is answered in the same case at the bottoms of pages 239 and 240, which state:

“As applied in particular instances, its meaning may be considered both from an affirmative and negative point of view. Affirmatively, it means that a business or property, in order to be affected with a public interest, must be such or be so employed as to justify the conclusions that it has been devoted to a public use and its use thereby in effect granted to the public. Tyson & Brother v. Banton, supra (at p. 434). ISTegatively, it does not mean that a business is affected with a public interest merely because it is large or because the public is warranted in having a feeling of concern in respect of its maintenance. Id., 430. The meaning and application of the phrase are examined at length in the Tyson case, and we see no reason for restating what is there said.”

It now becomes important in this case to inquire, “What business, if any, has been declared by the Fair Sales act to be ‘affected with the public interest.’” The “Fair Sales act” declares not one single business enterprise to be so affected, and yet imposes restrictions upon all business. Under no sweeping conception of government or economics has there been such a sweeping deprivation of long cherished rights constitutionally reserved to the individuals, themselves, been justified under the law of the land. Even if the legislature had so declared in this act that any business was so affected Avith a public interest as to justify the deprivation and right of the individual to fix his own prices that declaration would still be one for judicial decision. For, in the Tyson case, the court said (at p. 431):

“And, finally, the mere declaration by the legislature that a particular kind of property or business is affected with a public interest is not conclusive upon the question of the validity of the regulation. The matter is one which is always open to judicial inquiry. Wolff Co. v. Industrial Court, 263 U. S. 522, 536.”

The plaintiff contends that this is not a price fixing bill, but is a bill only to put a floor under prices, and cites the 1935 statutes of California, page 1546; Deering, Codes, Laws and Constitutional Amendments, 1935, Supp. 2063, Act 8781, and in support thereof Miller v. Board of Public Works, 195 Cal. 477, 484; 234, pp. 381, 383; 38 A. L. R. 1479. Wholesale Tobacco Dealers Association v. National Candy and T. Co., 82 Pac. Rep. (2d) 3. These cases cited are based upon the statute of California which is substantially different from our own; as well as chapter 69 of the acts of 1937 of Tennessee, citing Rust v. Griggs, 113 S. W. Rep. (2d) 733 (Tenn.).

I, therefore, feel that the right of the individual to fix his own prices cannot be infringed or denied, except in certain cases falling in well defined limits, none of which are present here. Citing Robert H. Ingersoll & Bro. v. Hahne & Co., 88 N. J. Eq. 222; 101 Atl. Rep. 1030; affirmed, 89 N. J. Eq. 332; 108 Atl. Rep. 128; Wilentz v. Crown Laundry, 116 N. J. Eq. 40; 172 Atl. Rep. 331; Tyson v. Banton, supra; Ribnik v. McBride, 277 U. S. 350; Williams v. Standard Oil, supra; Near v. Minnesota, 283 Id. 697.

It is contended on the part of the plaintiff that the decision of the United States Supreme Court in the Nebbia case has altered the well established rules heretofore extended. Certainly all of the eases cited above, and many others too numerous to mention, have struck down as unconstitutional all price fixing statutes, except where the business subject to the operation of each such law was “affected with a public interest.” Therefore, the question is, “has the Nebbia case altered that firmly entrenched rule?” A study of the case will disclose that it has not. See the reported case of Nebbia v. New York, 291 U. S. 502, decided by the United States Supreme Court two days after the date on which the emergency statute there in question was to have expired by its own limitation.

The argument before the highest court disclosed that “the legislation is of a temporary nature” (at p. 511) and that “the temporary and emergent character of the legislation being accepted, it is well within the police power.” A reading of the case discloses the emergency, and the emergent character of the act in all its details. Of greater importance, however, are two points: (1) The act was one relating and limited, to one industry; milk. Nothing else was affected. (2) The milk industry was one very “vitally affected with the public interest.” Those two points in and by themselves bring the Nebbia case squarely within the rules laid down and cases already cited, and by the same token, leave the “Pair Sales act” under the same infirmities described in those cases. The defendant, stating excerpts from the Nebbia decision, discloses this to be clearly so. The court said (at p. 515) :

“The question lor decision is whether the Federal Constitution prohibits a state from so fixing the selling price of milk.”

And (at p. 521): “Save the conduct of railroads, no business has been so thoroughly regimented and regulated by the State of New York as the milk industry.”

And further (at p. 530) : “The milk industry in New York has been the subject of long standing regulation in public industry.”

And (at the bottom of p. 530) : “The industry disclosed destructive and demoralizing competitive conditions and unfair trade practices which resulted in retail price cutting and reduced the income of the farmer below the cost of production.” (No such inquiry or disclosure is shown in the instant case.)

And (at the bottom of p. 536) : “The phrase ‘affected with a public interest’ in the nature of things, means no more than an industry for an adequate reason, is subject to control for the public good.” These words referring to only one industry, and not to all industries.

From examining the above cases, it is apparent that (1) The act was a temporary emergency measure to cope with a hopelessly chaotic condition in one industry alone; (2) that the act referred to and dealt with that one industry alone; and (3) that the one industry is as much if, indeed, not more than any other, vitally “affected with the public interest.”

After careful consideration of the brief filed in this matter, and examining the law pertinent to the question, I am of the opinion that the act known as the “Fair Sales act” is unconstitutional and T will, therefore, sustain the motion to dismiss the complaint filed in this case.


author: John C. Wegner, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SAMUEL SCHOENER, PETITIONER, v. WATSON ELEVATOR COMPANY, RESPONDENT.
    Decided October 11, 1938.
    For the petitioner, Andrew O. Wittreich, John Hanlon and William O'Brien.

    For the respondent, George E. Meredith and Walter W. Hubley, Jr.

   A formal petition was filed and served in the above entitled matter praying for compensation because of an accident arising out of and in the course of employment on April 18th, 1924, which formal petition was filed December 17th, 1934. To this formal petition an answer was duly filed by the respondent. A motion for dismissal of the petition was made, by the attorney for respondent, on the grounds that the case was barred by the statute of limitations. I felt that the motion of the attorney for the respondent was meritorious and granted same. Order being signed on June 7th, 3 935. An appeal from this order of dismissal was taken by the petitioner and my decision was reversed and the case remanded for a hearing. The decision of this feature of the case is found in Schoener v. Watson Elevator Co., 188 Atl. Rep. 916.

Trial of the case on its merits was begun on May 14th, 1937, before me.

The formal petition in this case alleged that the petitioner suffered an accident on April 18th, 1924, at which time he suffered an injury to his left great toe, and right great toe as a result of a steel plate and bar striking him on the alleged injured members. The petition further alleges that as a result of this alleged injury in 1924 the petitioner suffered an amputation of both legs in 1931. The respondent denies that the petitioner suffered any accident arising out of and in the course of his employment; that any notice of the alleged accident was furnished the respondent as required by the Workmen’s Compensation act; that the petitioner’s present condition is in any way related to the alleged accident.

The petitioner, at the first hearing held on this trial, testified in his own behalf and called as a witness one Christopher Bromert, a co-worker with the petitioner at the time of the alleged accident. Hollowing this hearing several hearings were subsequently had, William O’Brien, Esq., appearing for the petitioner and Walter W. Hubley, Jr., appearing for the respondent, and the trial was completed on August 12th, 1938.

The petitioner called as witnesses, in addition to the ones above named, his wife, Dr. Julse Baechler, Dr. Arthur Trewhella. Dr. John Moriarty, Dr. William Hill and Dr. Louis Dodson. The respondent called as its witnesses Alex Hordfelt, foreman, Dr. T. J. Shuck, Dr. Henry Klaus and Dr. Andrew C. Ruoff.

The hospital records of the 3STorth Hudson Hospital and St. Mary’s Hospital were introduced into evidence.

After careful and lengthy consideration of the case I feel that the petition should be dismissed. I am of the opinion that petitioner did not sustain the burden of proving an accident arising out of and in the course of his employment and that he did not furnish the respondent with any requisite notice of the alleged accident. It clearly appears from the testimony presented that the petitioner did not stop work at the time of the alleged accident for any appreciable length of time, but rather, as a matter of fact, worked up to the beginning of the year 1931. The petitioner testified that he reported his accident to the foreman, Alex Hordfelt, at the time of the alleged accident. However, it also appears from the testimony that at no time during the many years following the alleged accident, and during a portion of which the petitioner was receiving medical attention, did the petitioner make any further alleged report or claim. The witness called by the petitioner, one Christopher Bromert, testified to the occurrence of the alleged accident and the report to the foreman. The testimony of this witness is most unsatisfactory, it appearing, among other things, that he did not work for the respondent since 1924; that his memory of many other facts is very faulty, and that his recollection of the alleged occurrence is very hazy. The testimony of the respondent’s foreman, Mr. Nordfelt, consisted of a denial of any knowledge or report of any accident to the petitioner and further was to the effect that on the date on which the petitioner alleged his accident occurred, the plant of the respondent was not working, same being Good Friday, a holiday.

The doctors, called by the petitioner, with the exception of Dr. Baechler, were called for the purpose of answering a hypothetical question. All of these doctors testified that in their opinion, the petitioner’s present condition resulted from the alleged accident in this case.

Dr. Baechler, the petitioner’s own treating physician, testified that in 1924 he was treating the petitioner for a diabetic condition; that these treatments were being rendered prior to the alleged accident; that the petitioner had prior to the alleged accident, an ulcerated heel on one of his feet; that he did not treat the case as a compensation case at any time.

Dr- T. J. Shuck and Dr. Henry Klaus, called on behalf of the respondent, were two of the treating or operating physicians in this case. They testified that the petitioner’s right leg was removed by operation on May 2d, 1931, and the left leg was removed on October 24th, 1931. They further testified that, in their opinion, there was absolutely no causal connection between the removal of the petitioner’s legs in 1931 and the alleged accident of 1924. Dr. Andrew C. Kuoff, called by the respondent, testified that after careful consideration of the history of the case, perusal of the hospital records and a thorough check on the medical aspects of the matter he could not possibly find any causal connection between the petitioner’s present condition and the alleged accident of 1924.

There was some question in this case as to what condition the petitioner was actually suffering from prior to the alleged accident and up to the time of the removal of his legs. Dr. Baechler, the petitioner’s treating physician, testified that, in his opinion, the petitioner was suffering from diabetes and that he treated the petitioner for same. The other doctors called by the petitioner, testified in answer to questions propounded by counsel for the petitioner that, in their opinion, the petitioner was not suffering from diabetes but was suffering from endarteritis-obliterans or a circulatory disturbance. However, there was no question in the case but that the petitioner developed gangrene, which condition was the motivating factor back of the removal of his legs. I do not feel that the disputed medical question relative to the petitioner’s condition in any way changes the result that must be arrived at in this case. The petitioner was unquestionably suffering from some condition prior to the alleged accident, diagnosed b]^ his treating physician as diabetes and he presented, prior to the alleged accident, an ulceration of at least one of Ms feet. The petitioner was under medical treatment, prior to the alleged accident in this case, and was also under medical treatment subsequent to same, and, according to the treating physician, did not receive any different treatment during the period of same. The petitioner worked continuously from the time of the accident in 1924 up to the beginning of 1931. The petitioner did not develop any gangrenous condition until the year 1931.

Taking all of the testimony, exhibits and arguments of counsel into careful consideration, T, as hereinabove stated, find that the petitioner has in no way sustained the burden of proving that he met with an accident arising out of and in the course of employment or proving that his present physical condition is in any way related to the alleged accident of April 18th, 1924, and that report of same was not made within the statutory period, therefore, the petition must be dismissed.

It is, therefore, * * * ordered that the petition filed herein be and the same is hereby dismissed.

John C. Wegner, Referee.