text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH GUIDA, PETITIONER, v. BOROUGH OF EMERSON, RESPONDENT.
    Decided July 27, 1939.
    For the respondent, Kalisch & Kalisch.

    For the petitioner, Frank Pascarella.

   In the case sub judice petitioner was injured May 15th, 1936, while cleaning a fire truck and equipment, after a fire. Petitioner went into fire headquarters for a sponge, slipped on grease pan, fell to floor receiving a fracture of skull and concussion of the brain.

The respondnent, through its insurance carrier, resists the claim of the petitioner, on the ground that he was not properly appointed a fireman, or confirmed by the borough council and, therefore, the status of an employer and employe between him and the borough did not arise, and relies mainly on the decision of the Supreme Court in Brower v. Township of Franklin, 119 N. J. L. 417.

The respondent herein is a borough, governed by the Borough laws and the applicable sections of the “Act concerning municipalities,” chapter 152, laws of 1917, and is governed by a mayor and six councilmen.

The evidence discloses the history of the creation of the volunteer fire company, of which the petitioner claims to be a member. This company was formed as an association not for pecuniary profit, under Pamph. L. 1898, p. 422; 1 Comp. Stat., p. 125, in the year 1905, as Etna Volunteer Eire Company, adopting at that time the then corporate name1 of the respondent. Immediately prior to the incorporation of this company the borough of Etna.adopted an ordinance creating a. fire department and designating the Etna Volunteer Eire Company as the authorized fire department of the borough. Subsequent to that time the name of the borough was changed to that of the borough of Emerson, and an ordinance was passed, which in effect, was the ordinance of 1904, with the name “Etna” deleted and the ñamé “Emerson” written in its place. The organization known as the Etna Volunteer Eire Company continued to function as the designated fire company of the municipality from 1904 to the present time.

The by-laws of this fire company were adopted by the company and approved by the borough council. In the interval the Etna Volunteer Eire Company conveyed its real estate to the borough and also transferred all of its apparatus and equipment. Erom that time up to the present the'volunteer fire company was and still is housed in these premises, and all equipment was purchased by the borough and all expenses of the fire company have been paid by the borough. The borough also purchased a Mack fire truck in 1923. On July 22d, 1924, the ordinance creating and controlling the fire department, now in effect, was introduced, but this ordinance was not fully adopted until December 9th, 1924.

The petitioner became a member of the volunteer fire company on October 7th, 1924, prior to the final adoption of the fire ordinance last referred to. There is no resolution in the minutes of the fire company as to his appointment, as the minutes for that period cannot be located. He signed the oath of office and the roster of the fire department showing the date he entered was also offered in evidence. There is no confirmation or approval of the petitioner as a volunteer fireman by the council, pursuant to section 9 of the 1924 ordinance.

The petitioner became a member of this company, paid his dues and assumed the duties of a volunteer fireman. He was elected a lieutenant of the Hook and Ladder Company. There was also introduced in evidence the record of the petitioner as a fireman, filed with the borough clerk.

The petitioner was injured while cleaning the Mack fire truck belonging to the borough, in the borough hall, where the fire quarters are located. On the date of his injury he responded to the siren and, upon arriving at the fire quarters, he was directed by the fire chief to clean the truck. He, with others, performed these duties under the directions of the fire chief, who was properly appointed the chief of the fire department in accordance with the provisions of the by-laws and the fire ordinance of the borough. While going for a sponge, on the orders of the fire chief, petitioner slipped on a grease pan in the fire quarters, fell and sustained his injuries.

A necessary prerequisite for recovery under the Workmen’s Compensation act is the existence of the relation of employer and employe. In order for that relation to exist there must be a valid contract of service together with the right or power in the employer to control the employe with respect to the transaction out of which the injury arose.

The question herein involved is whether the status of employer and employe existed between petitioner and respondent. I have carefully studied the testimony and exhibits marked in evidence as well as the statutes pertaining to volunteer fireman.

In the Brower case, which was heard by me, a different situation applied. The fire company owned its apparatus, was not incorporated under R. S. 40 :149-10 and no control or supervision was exercised by the township. The court further held that the sum of $100 voted by the council annually did not give rise to an implied contract of master and servant relationship.

There is no comparable statute applying to municipalities, and therefore, we must revert to the Borough laws or the General Acts Concerning Municipalities. These statutes, as above enumerated, grant general powers to a borough to perform one of its essential functions, which is to provide fire protection for its inhabitants. The borough may provide such fire protection either by the creation of a paid department, or by recognizing some volunteer firemen’s association. Generally, in the smaller municipality, the latter course is pursued. The elements of contract and control are exercised by the borough, either by an express agreement, or an implied one. The express agreement would involve the passage of an ordinance creating a department and stating the manner of control. The implied agreement would be evidenced by a course of conduct over a period of time showing the performance of public fire duty by a volunteer organization and the exercise of general control by the municipality in some fashion, such as providing a fire truck, equipment, quarters, payment of expenses, &e.

In the case at bar there has been shown, by a history of fire ordinances, a course of conduct on the part of the borough to recognize the sole volunteer organization in the municipality as its fire department and the control over such department by the municipality by various features, such as the confirmation of the appointment of a fire chief and assistant fire chief, the payment of all expenses of the fire department, the furnishing of quarters for this department and the purchase of fire trucks and all necessary fire equipment.

The 1924 ordinance is a very lengthy and comprehensive ordinance and, had the petitioner been confirmed as required by section 9 of said ordinance, no question would have arisen as to his status. However, it must be borne in mind that the petitioner became a member of the department just prior to the adoption of this ordinance. At the time the petitioner joined the fire company, that company had been in existence since 1904, or a period of upward of twenty years, and there were a great number of members in the company. Upon the adoption of the 1924 ordinance no confirmatory action was taken by the borough as to the then members of the fire company. It was assumed that the members who were duly admitted under the prior ordinance of 1910 were still members of the department and section 9, which referred to applications for membership, would only apply to future application for membership.

It has been duly established by the evidence that the old Etna Volunteer Eire Company, the corporate name of which was subsequently changed to read “Emerson Yolunteer Eire Department,” was recognized by the borough as its fire department. There is plenary evidence of this in the record — the passage of the 1904 ordinance referring to this company; the amended ordinance of 1910; the approval of the by-laws of this volunteer fire company in 1917; the acquiring of the property of the company and supplying quarters for this company; and the other evidence showing the purchase of equipment, payment of bills, &c.

In order for this petitioner to come under the benefits of the Workmen’s Compensation act it would only be necessary for him to prove that he was a duly constituted member of this company and was injured in the line of duty. The latter is admitted, and the only question is whether he has acquired the status of a member of this company. This is opposed on two grounds — first, that he is not a member of the company, and secondly, he has not been confirmed by the borough council, in accordance with the 1924 ordinance.

Confirmation of petitioner by the council under the 1924 ordinance would enure to his benefit two-fold — firstly, he is a member of a company recognized by the borough; secondly, he is directly confirmed by the council. In the former case the relationship of employer and employe is established by reason of his membership in -the recognized company, and in the latter case by the confirmatory resolution.

There is no resolution of the volunteer fire company admitting the petitioner to membership. There is a hiatus in the minutes of this company from June, 1924, to January, 1925. The petitioner signed the company roll. The register of the fire company shows the date of his entry — October 7th, 1924. He paid his dues and continued as a member of the company to the date of his injury. He was also elected lieutenant of the Hook and Ladder. He fully qualified for admission to membership in accordance with article 19 of the by-laws.

In the case at bar there is sufficient evidence to show that the municipality controlled the fire company and supervised it. The fire chief and assistant fire chief could not be appointed without the approval of the borough council (article V of the by-laws, Exhibit P-4 and section 3 of the 1924 ordinance).

The course of conduct of the borough, with respect to the volunteer fire company, of which the petitioner was a member over a long period of years, and the passage of the various fire ordinances, shows a distinct intention to recognize this volunteer fire company and each of its members as- the duly constituted fire department and volunteer firemen of the borough. The fact that the petitioner continued as a member from the year 1924 to the date of his injury, 1936, over a period of twelve years, evidences an intention on the part of the borough to recognize him as a volunteer fireman doing public duty under the control and supervision of the borough council. Any necessary formal legal requirements in this respect are supplied by the length of time which has elapsed and the course of conduct pursued by the parties. It is, in my opinion, a complete ratification of any agreement between them.

I am, therefore, holding that the relationship of master and servant existed between respondent and petitioner and that petitioner is entitled to compensation benefits under the act.

John O. Wegner,

Deputy Commissioner.


source: Caselaw Access Project

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CATHERINE BOLLINGER, PETITIONER, v. WAGARAW BUILDING SUPPLY CO., RESPONDENT.
    Decided July 31, 1939.
    For the petitioner, Nathan Rabinowitz.

    For the respondent, Kalis ch & Kalisch.

   ❖ & & ❖

The petition herein was filed on July 1st, 1938, answer thereto was filed July 2 2d, 1938, and an amended answer was filed September 14th, 1938. The petition alleged that decedent’s death resulted from an accident, the death occurring June 3d, 1938.

Respondent, in its answer and amended answer set up the defense of res judicata, that the Workmen’s Compensation Bureau has no jurisdiction to entertain the petition, and that the petition was not filed within the time prescribed by the Workmen’s Compensation act. The answer further reserved the right to move to dismiss the petition upon the ground that the same was not filed within the time prescribed by law.

On May 31st, 1939, notice of formal hearing was given by me to the attorneys for the respective parties setting the case for hearing on June 19th, 1939. On June 2d, 1939, the matter was adjourned to June 26th, 1939. On June 8th, 1939, the matter was adjourned to July 3d, 1939, and on June 13th, 1939, the case was advanced and the parties notified to be prepared to dispose of the same on June 23d, 1939.

The matter came on for hearing before me at Jersey City, New Jersey, on June 23d, 1939, at which time respondent offered in evidence a letter dated June 15th, 1939, addressed to Nathan Rabinowitz, attorney for petitioner, by the terms of which the respondent admitted the dependency of the petitioner and the four children as alleged in the petition, and further stated in said letter that the wage rate was $22 per week, and that compensation would be paid to the widow and children for such period of time as the statute provides. It was further stated in said letter that respondent will pay for any other charges against it to which the petitioner is entitled pursuant to the Workmen’s Compensation act. No offer to pay compensation was made by respondent prior to June 15th, 1939.

At the hearing before me in the presence of counsel for the respective parties, testimony was taken of the witnesses, Catherine Bollinger, the petitioner, and Stuart Inglis, a witness for the respondent, from all of which it appears that petitioner was employed by respondent as an operator of a machine for the manufacture of sand blocks and as a watchman' and caretaker of the plant where he was so employed, that in connection with his work, he earned fifty cents per hour, working eight hours per day for five and one-half days each week, earning a total of $22 per week as sand block worker. In addition thereto, he earned the further sum of $4 per week in connection with his employment as caretaker, watchman, cleaning the office and other parts of the building where he was employed during the day, taking care of the steam boiler at said plant and steaming cement blocks manufactured' at respondent’s place.

In addition to the foregoing, the respondent, as part of the wages paid to deceased, provided him with a house which was situated on the premises owned by respondent consisting of five rooms, electricity, water, and improvements. Respondent further, as part of his wages, provided deceased with electricity, coal, and water used in the maintenance of the said house.

The sole question to be determined at this hearing was the wage of decedent. Where one serves in a dual capacity under one contract of hire, his earnings for purposes of compensation is the amount received for work in both capacities, not merely that received for the work during the performance of which he was injured. Where the employe serves his employer in two capacities, one insurable and the other not, but the latter being incidental for the former, his compensation is to be based on his total average wage as against the contention that what his wage was in the insurable occupation did not appear.

After due consideration, I find that the reasonable value of the said premises and fuel, &c., as aforesaid, so furnished by respondent to deceased, was $40 per month or $480 per year, or the sum of $9.23 per week. The aggregate wages, therefore, earned by deceased was $35.23 per week.

$ $ H* $ $ & $

It is therefore on this 31st day of July, 1939, ordered that judgment be entered in favor of the petitioner and against the respondent.

❖ * ❖ ❖ * %

John C. Wegnee,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN GRUBER, PETITIONER, v. RUDOLPH FECHNER, RESPONDENT.
    Decided July 31, 1939.
    For the petitioner, Harry Barih.

    For the respondent, David Boslcein.

   Petitioner in case sub judice alleges that on April 16th, 1938, he was removing bread from an oven when he struck his right elbow against oven door causing severe pain. This petition was filed July 6th, 1938. Amended petition was filed October 14th, 1938, amending date of accident as of April 10th, 1938, and that striking of elbow was against a right steam box door.

Both petitions make reference to a similar occurrence several months prior to April 10th. Petitioner did not stop work but notified his employer. A small lump appeared on elbow at that time which grew to the size of an egg after the occurrence of April 10th. Subsequently another amended petition was filed stating early in August, 1937, as the date of the first incident.

Respondent filed an answer and an amended answer denying that petitioner sustained a compensable accident and causal relationship. Before trial it was stipulated as to employment and rate, being $20 per week. Case first came to trial November 21st, 1938.

Petitioner testified to occurrence in August, 1937, when he first alleges he struck elbow on steam box door, arm being black and blue in region struck, became swollen and pained, swelling disappeared and a small lump, size of a pea, remained. Pain ceased. He notified his employer, was subsequently treated by Dr. Permaglich, who sent him to Dr. Pitkin, who operated upon the arm. Later respondent’s carrier had petitioner treated by Dr. Ewing.

Dr. Harry B. Fermaglich testified that petitioner came to his office May 11th, 1938, gave a history of the accidents. Witness diagnosed from history and objective signs as a bursitis. Petitioner was referred to Dr. Knapp who took X-rays and diagnosed case as one of chronic bursitis. Witness then concluded to operate. A longitudinal incision along the line of growth was made but when he reached below the skin he found a solid mass attached to the structures below. Wound was immediately sutured and healed and petitioner was referred to a general surgeon for hospitalization and operation.

Dr. Pitkin testified of seeing the petitioner, receiving a history, found a mass over right elbow which he diagnosed as a bursitis. Upon operation he found a hard mass. Same was removed and sent to the laboratory. The laboratory report was that same was a spindle cell sarcoma.

The employer testified to petitioner telling of striking arm on April 16th, but denies notice of previous incident.

Dr. Markley, pathologist of Holy Name Hospital, Teaneck, testified also his examining specimen microscopically and found same to be a spindle cell sarcoma. He further stated “it might be of neurongenic origin.”

Dr. Kuoff testified as to his examination and findings. He estimated petitioner’s permanent disability as seventy-five per cent, of the right arm. He was of the opinion that trauma played a part in the disability.

Dr. Eaphael Gilady testified as to his examination of December, 1938, and his findings as follows: “Physical examination exactly presents a man of past middle age, asthenic thin-like, there was no organic changes in the heart or lungs; I did find on X-ray examination some nodules in the left lower lobe, a small nodule in the left lower lobe, this nodule will bear watching, as I expressed it. I also found in this plate, P-3, a small nodule in the lower end of the femur. On further examination it was disclosed that there was a tumor mass in his right elbow which rendered that elbow joint somewhat fixed, in other words, there was limitation of extension and flexion and' this tumor mass was exhibited and it showed and infiltrated mass in the lower end of the humerus, and it also disclosed some encroachment of the elbow joint, in other words, the surface was not smooth, the articulation or surface was not smooth any more because the further changes upon the movement in this joint.”

The doctor further stated that an examination of the slides revealed a spindle sarcoma of synovial origin or a synovioma.

Dr. George Thomas Pach, who specializes in the diagnosis and treatment of cancer, was then called by the petitioner. He treated the petitioner over a period of time. His opinion was that this man has a bony tumor developing on the posterior aspect of the lower end of the humerus, which involves the elbow joint and prevents extension of the arm. The character of the bony tumor is most likely benigh — very likely is not malignant. It has been a later development as a result, of the injury, because it is of the type of bony growth that would be due to either one of two things: most likely either a traumatic ossified periosteitis or myositis ossificans. Most likely it is either one of those two conditions. And this type of bony growth is very slow to develop. One may have an injury two months before bone will be laid down. It is not like a malignant tumor or some acute injury that may develop quite rapidly. The doctor was of the opinion that trauma was a competent producing cause of the synovioma and bony tumor of the humerus of which petitioner suffers.

Dr. Edgar A. Ill and Dr. Asher Yaguda testified for the respondent at hearing May 5th and they were of the opinion that trauma bore no relationship to the disability. Dr. Nicholas Alter who qualified as a pathologist was also of the same opinion. Dr. Max Singer was of the opinion that trauma played no part in producing tumor relying upon Dr. Ewing’s-five postulates as authority.

Dr. Eern who examined petitioner several times, the last on March 27th, 1939, estimated disability as fifty per cent, of right arm with a belief that same was not due to trauma.

Dr. Ewing’s letter of July 7th, 1938, reading in part as follows, was marked in evidence: “I wish to report on the case of John Grnber. This man shows a diffuse, tender swelling involving the right elbow and lower portion of the humerus. There is a recent partly healed biopsy incision. There is considerable limitation of motion of the elbow. The swelling is firm but not hard. Microscopic section shows a cellular spindle-cell sarcoma. The structure suggests a synovioma, a malignant tumor derived from a bursa or joint surface. These tumors are highly malignant and radio-resistant, and very few are cured by amputation or any other method. We are inclined to think, Dr. Pach and I, that the safest procedure is amputation, but we cannot guarantee a cure. On that account I am disposed to recommend a preliminary course of X-ray treatment to be followed by amputation in case the treatment is not satisfactory. An X-ray picture of the lungs should be taken. Eegarding the traumatic origin, it is impossible to give a definite opinion. The man gives a somewhat direct but unsatisfactory history of injury. He struck his elbow against the iron bar but he suffered similar milder injuries on other occasions. He attributed the tumor to one of these injuries. While synovioma usually arises without a history of injury, it is impossible to positively reject a traumatic origin in this case.”

I have also had reference to a section of Dr. Ewing’s article Traumatic Cancer, published in Archives of Pathology.

After a most careful study of all of the testimony and exhibits and a careful study of the doctrine enunciated in the recent case of Bollinger v. Wagaraw Building Supply Co., 17 N. J. Mis. R. 215, I am of the opinion that petitioner met with a compensable injury and is entitled to compensation.

$ $ $ $ $ 4 $

John C. Wegnee,

Deputy Commissioner.


author: Oliphant, C. C. J.

text:
    Mercer County Circuit Court.
    THE TRENTON BANKING COMPANY, PLAINTIFF, v. CHARLES B. KENNEDY, DEFENDANT.
    Decided August 23, 1939.
    For the plaintiff, Katzenbach, Gildea & Rudner.

    For the defendant, Ellis L. Pierson.

   Oliphant, C. C. J.

The plaintiff was the holder of numerous notes endorsed hy Kennedy & Pidcock, Inc., and discounted by the said corporation in the plaintiff bank. Defendant had been an officer and stockholder in Kennedy & Pidcock, Inc. Of the notes so held by the plaintiff was one made by Edmund M. Allen and Marion F. Allen in the sum of $3,650. On December 10th, 1938, the defendant signed and delivered to the plaintiff an agreement wherein he “assumed liability for any loss to your bank upon same [referring to numerous notes including the Allen note] until these notes are liquidated. Of course, any liability for loss would first fall upon Kennedy & Pidcock, Inc., and I would not be expected to reimburse your bank for any loss until default should be made in the payment of such loss by Kennedy & Pidcock, Inc.”

The Allen note was secured by a mortgage made by them to Kennedy & Pidcock, Inc., but not by it assigned to the bank.

After the making by the defendant of the agreement on December 10th, 1938, plaintiff accepted many renewals of the Allen note, some being made with, small payments on the principal, others with interest alone being paid. The last note was dated December 30th, 1932, in the sum of $2,365, payable one month after date. It was not paid when it became dne. Such non-payment was brought to the attention of the defendant. In June, 1933, plaintiff notified defendant it had placed the claim in the hands of an attorney for collection with instructions to sue.

Suit was instituted July 14th, 1938, upon the note against the Allens and Kennedy & Pidcock, Inc. Judgment was entered thereon, execution issued and a levy made upon the right, title and interest of Kennedy & Pidcock, Inc., in the mortgage made by the Allens to that corporation as security for their note. The right, title and interest of Kennedy & Pidcock, Inc., in and to the mortgage and the interest of the Allens in the property covered thereby was sold by the sheriff on March 22d, 1939, for $100. The deficiency and loss to the plaintiff in the transaction was $3,301.48.

This suit is to recover that amount by virtue of defendant’s agreement of December 10th, 1928.

Defendant, by way of answer, sets up four separate defenses; that the agreement was without consideration and the terms and conditions thereof were not fulfilled; that plaintiff was not diligent in not realizing upon the mortgage security and in proceeding against the makers and endorsers of the note to ascertain the loss, if any, covered by the agreement; that the cause of action is barred by the statute of limitations and that the defendant was relieved from the obligation to make good the loss claimed by reason of plaintiff accepting renewals of the Allen note.

The matter comes before me on a motion by the plaintiff to strike the answer and the separate defenses on the ground that it is sham and is insufficient in law and does not set forth facts sufficient to disclose a legal defense.

The agreement is a contract of indemnity wherein defendant indemnified plaintiff against any loss by reason of the discounting by them of the Allen note. It is a conditional continuing guaranty to save the plaintiff harmless for any loss occasioned to it by reason of it having discounted the note. There was ample consideration for it. A reading of the agreement will disclose that benefits accrued to the defendant thereunder. The Coast National Bank v. Bloom,, 113 N. J. L. 597; 174 Atl. Rep. 576. The terms of the agreement were fulfilled by the bank. Defendant agreed to assume and pay any loss arising out of the note and plaintiff had the legal right to renew the note from time to time on whatever terms it chose. The second paragraph of the agreement is mere recital and the expression of a hope which does not change the legal effect of the last two paragraphs. The word “liquidate” has several meanings, among them “settled, paid, discharged.” Canda v. Canda, 92 N. J. Eq. (at p. 426); 112 Atl. Rep. 727; Wilson v. Stillwell, 75 Am. Dec. 477; Black’s Law Diet. Undoubtedly, in the sense used here, the indemnitor meant paid. This being so, the defendant assumed the liability for loss until the note was paid in full, which in itself, contemplated renewals. The suit is not on the note but on the contract. Renewals of the note did not discharge the indemnitor. Eller v. Erwin, 265 S. W. Rep. 595; 206 Pac. Rep. 902; Weger v. Robinson Nash Motor Co., 172 N. E. Rep. (at p. 11).

As to the second separate defense, lack of diligence on the part of the plaintiff, it will be noted that the note became due and unpaid on January 30th, 1933. Soon thereafter, plaintiff notified defendant it was placing the collection thereof in the hands of attorneys. Nothing was done, no steps were taken to establish the loss until July 14th, 1938, when suit was begun, a period of Over five years. Of course, plaintiff was not compelled to foreclose on the mortgage security, but it elected to do so. The loss was established March 22d, 1939. It is this delay that the defendant complains of! He says that from the time of the default to the time action was first begun against the makers and endorsers of the note, the value of the security shrank from that equal to or in excess of the note indebtedness, to a much less sum. He says this delay constituted lack of diligence, negligence, on the part of the plaintiff and that therefore he is relieved of payment. Of course, if this agreement was an absolute guarantee of payment, this would be no defense, but it is not. As heretofore stated, it is an indemnity contract or a guarantee of collection.

Mr. Justice Heher in Westville Land Co. v. Handle, 112 N. J. L. 447; 171 Atl. Rep. 520, said: “The contract partakes of the nature of a guaranty of collection, no liability being incurred until after, by the use of due and reasonable diligence, the guarantee has become unable to collect the debt from the principal debtor,” citing Burton v. Dewey, 4 Kan. App. 589; 46 Pac. Rep. 325. See, also, Rospond v. Decker, 162 Atl. Rep. 725 (at p. 727). In Wolthousen v. Trimpert, 105 Atl. Rep. 687 (at p. 690); 93 Conn. 260, it was'held: “The duty of the indemnitee in a contract to bear the loss the indemnitee may suffer on an account held by him against a third party is, unless otherwise provided, to act in good faith and to use ordinary care, or, to put it the other way, not to be negligent in respect to the loss for which indemnity is claimed.” Also citing Burton v. Dewey, supra. See Columbia Casualty Co. v. Timba, 63 Fed. Rep. (2d) 538. From the foregoing it is apparent that this is a proper and legal defense.

The statute of limitations is not available as a defense because the cause of action did not arise or accure until the loss was established. There was no loss, no damage had accrued, until March 22d, 1939.

The fourth separate defense is disposed of by my conclusion in regard to the first separate defense.

The answer fails to disclose legal defenses and will be struck out. The first separate defense is in part sham and in part insufficient in law and discloses no legal defense. It will be stricken out.

The motion to strike will be denied as to the second separate defense.

The third and fourth separate defenses do not set forth sufficient facts to disclose legal defenses and are insufficient in law. They will be stricken out.

An order may be presented in conformity with this memorandum. No costs will be allowed.


author: Melko, D. C. J.

text:
    Perth Amboy District Court.
    CHARLES H. MOHR, PLAINTIFF, v. CARL SONNET, DEFENDANT.
    Decided August 14, 1939.
    For the plaintiff, Parker E. Nielsen.

    For the defendant, Osborne, Cornish é 8check (Euyler E. Romond appearing).
   Melko, D. C. J.

The plaintiff brought this action in the District Court of the Second Judicial District of the county of Essex, seeking to recover damages allegedly caused by the defendant’s automobile negligently striking and destroying lands, buildings, and shrubbery of the plaintiff located in Middlesex county.

Defendant’s objection that this was a local action and under the provision of R. S. 1937, 2:27-18, should be tried in the county in which the real estate in question is situated or the cause of action arose, was sustained and an order made accordingly transferring the action to the Perth Amboy District Court.

Defendant now appears specially and moves to dismiss the action under the provision of R. S. 1937, 2:8-38 which provides that “* * * the territorial jurisdiction of every District Court shall be co-extensive with the limits of the County .wherein the City or Judicial District Court is established.” The defendant resides in the county of Essex and it is his contention that he is not within the territorial jurisdiction of the Perth Amboy District Court.

The transfer was made by virtue of the Transfer of Causes act (R. S. 2:26-6), which provides:

“No cause or matter pending in the court of chancery, supreme court, a circuit court, a court of common pleas, a district court, a court of oyer and terminer, a court of quarter sessions or a court of special sessions shall be dismissed solely on the ground that such court is without jurisdiction of the subject-matter, either in the original suit or on appeal, but the cause or matter shall be transferred, with the record thereof and all the papers filed in the cause, to the proper court for hearing and determination. The record shall, when necessary, include a transcript of all entries and proceedings in the cause.”

The District Courts are creatures of the legislature, which can assign them such territorial jurisdiction as it sees fit. MacPhail et al. v. Nassau, 14 N. J. Mis. R. 692; 184 Atl. Rep. 633. See, also, Wall Rope Works, Inc., v. Sperling, 116 N. J. L. 449; 185 Atl. Rep. 477.

The territorial jurisdiction of the Perth Amboy District Court is confined to Middlesex county and was not enlarged or expanded by Transfer of Causes act. R. S. 2:26-60. It might be noted that after the decisions rendered in the case of MacPhail v. Nassau and Wall Pope Works, Inc., v. Sperling above cited, that the legislature did in 1936 amend the District Court act in order to extend the territorial jurisdiction of District Courts so that services could properly be made of a District Court summons upon any chauffeur, operator, or owner of any motor vehicle not licensed under the State of New Jersey, by leaving an original and copy of said summons and state of demand in the hands of the Commissioner of Motor Vehicles in the State of New Jersey, whose office is in the county of Mercer. R. S. 2:32-34.1.

It appears that the amount involved is approximately $100 and the plaintiff contends that unless this court takes jurisdiction, he will be obliged to institute suit in the New Jersey Supreme Court, which would hardly he warranted by the amount involved. This objection, however, is' without substance as it was held in the case of Karr v. New York Jewell Filtration Co., 78 N. J. L. 198; 73 Atl. Rep. 132, that «* * * rphg C0Urts of this state have no jurisdiction of an action on the case for negligent injuries to plaintiff’s real property and building situated in the District of Columbia, by making excavations on adjacent property, and that plaintiff will be without remedy, unless the court takes jurisdiction, is immaterial.”

Therefore, since this is a local action for damages to realty in the county of Middlesex and the Second Judicial District Court of the county of Essex does not have jurisdiction over the subject-matter and since this court cannot acquire jurisdiction over the defendant, the action is dismissed.


author: Pellettieri, D. C. J.

text:
    District Court of the City of Trenton.
    THE CENTURY INSURANCE COMPANY, LTD., PLAINTIFF, v. JOHN JOACHIM, DEFENDANT.
    Decided August 12, 1939.
    For the plaintiff, Edwards, Smith & Dawson.

    For the defendant, Arthur A. Salvatore.

   Pellettieri, D. C. J.

This is a suit instituted by the plaintiff insurance company to recover money paid by it to the defendant on the theory that the defendant had breached a subrogation agreement entered into with the plaintiff. The plaintiff, under the terms of a certain policy issued to the defendant, John Joachim, agreed to indemnify the defendant against loss by reason of the damages or destruction of an automobile owned by him. On or about February 25th, 1938, the automobile was damaged in a collision with another automobile owned and operated by Harold Agans, and on or about March 12th, 1938, the insurance company paid to the assured the sum of $155, the extent of its liability under the terms of the policy, demanding back from the assured a subrogation receipt, which expressly recognized the company’s right to subrogation and contained a formal assignment of all claims against third parties to the extent of the amount of the payment.

It is admitted that when the insurance company paid -to the assured the loss for which it had agreed to indemnify him, it became subrogated to any claim for the same damages which the assured might have against the wrongdoer who had caused the damage.

Some time later plaintiff, acting in accordance with its subrogation rights, instituted an action against the said Harold Agans in the name of the defendant, John Joachim. It was then advised Agans held a general release from Joachim releasing all claims that Joachim had against Agans; which general release had been given subsequent to the payment made by the plaintiff to the defendant. Ho disposition was made of said suit and plaintiff thereafter instituted the present action for the damages resulting to it by reason of the defendant’s breach of the subrogation agreement.

By way of defense it is contended that there is no liability on the part of the defendant because the release was given by him to Agans for a nominal consideration of $1. The plaintiff, however, submits that the release .was given in consideration of a release executed and delivered by Agans to the defendant releasing the defendant from any claims which the said Agans may have had against him. The plaintiff further takes the position that by the- release to Agans the defendant, Joachim, has destroyed the right of action which the insurance company had against Agans.

It is well settled in this state that a release does not destroy the right to recover against the wrongdoer which the insurance company obtained by subrogation when it paid its assured for the loss sustained by the damages to his automobile, if the wrongdoer paid less than the full damages caused by his negligence and obtained the release with knowledge that the insurance company had paid to the assured all those damages under the insurance policy. Fire Association of Philadelphia v. Wells, 84 N. J. Eq. 484; 94 Atl. Rep. 619. There is no evidence in this case on whether or not Agans had such knowledge.

Even if it should appear that in fact the release was' taken by Agans without knowledge that the insurance company was subrogated to part of Joachim’s claim against Agans and was intended to cover all of the damages suffered by Joachim, it would still appear that the insurance company should recover only for the loss it has sustained by that release. If Joachim has acted wrongfully and in derogation of the rights of the insurance company, he should pay the damages which he has caused. After payment of the insurance money, the insurer became the equitable owner of any right of action of the assured to recover the same damages against the person primarily liable. But where the insurance company asserts a claim against the assured for wrong and damages alleged to have been caused to it by the assured, it must in such case show that in fact the wrong has been committed and also the damages caused thereby. In order to prove damage, it must show that in fact it might have recovered against Agans as a wrongdoer. There is no such proof in this case.

The plaintiff insurance company relies upon the opinion of Mr. Justice Donges in the case of Universal Insurance Co. v. Hillside Farms, Inc., 119 N. J. L. 535; 197 Atl. Rep. 648. It is my opinion that this decision is not applicable to the facts of the instant case because the New Jersey Supreme Court in the Universal Insurance Co. case, supra, was interpreting a Pennsylvania contract and in so doing applied the law of Pennsylvania.

Por all of the reasons above set forth, there will be a verdict of no cause of action.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    DOROTHY G. ELDRIDGE, PETITIONER, v. WM. J. ELDRIDGE, RESPONDENT.
    Decided August 30, 1939.
    For the petitioner, Quinn «& Dor emus (Vincent J. McCue).

    For the respondent, Durand, Ivins Carton (J. Victor Carton).

   The petitioner, Dorothy G. Eldridge, widow, filed a petition for workmen’s compensation for herself and two minor children as surviving dependents of the late Lester Eldridge.

The petition states that the decedent, while in the employ of the respondent, at $30 a week, attempted to start a gasoline motor which exploded and caused his death on June 11th, 1938.

In his answer, the respondent states that the decedent was not in the performance of his duties at the time of the alleged explosion, and that his weekly wage was $17.50.

The parties agreed to settle the claim and seek approval.

The petitioner appeared before me and stated under oath that she was the widow of the decedent; that there were two children of the union, one, born May 29th, 1925, and the other, May 8th, 1933; that she was willing to accept the sum of $3,600 payable in three hundred weekly installments of $12 each, and to pay her counsel.

I withheld approval of the settlement in order to compute the exact amount petitioner would receive if she proved her claim under the act. I find that on the basis of a wage of $17.50, both parties agreed upon this rate, and the corresponding compensation rate of $10 a week, petitioner would be entitled to the sum of $5,691.43, plus statutory funeral expenses of $150 or a total of $5,841.43.

Has the bureau any authority to approve such agreement? The Court of Errors and Appeals has construed the act and found that the bureau has no such authority.

“We find no provision in the statute vesting in the bureau authority to approve a compromise of a valid claim under its provisions for less than the sum thereby prescribed or of a claim outside of the act erroneously asserted to be within its terms. The policy of the law is not served by reduced payments to one entitled to its benefits; nor is it advanced by providing compensation to one not within the statutory class. The approval by the bureau of a compromise agreement made with one not so entitled is nugatory; such action is coram non judice.” P. Bronstein & Co. v. Hoffman, 117 N. J. L. 500; 189 Atl. Rep. 121; Ruof v. Blasi, 118 N. J. L. 314; 191 Atl. Rep. 877.

By this .test, if the petitioner has a valid claim, then she is entitled to the entire amount, and if not, then she is not entitled to any recovery under the act.

Stephen J. Lobenz,

Deputy Commissioner.


author: Staeeord, A. M.

text:
    Marie P. Adams, complainant, v. Peter A. Adams, defendant.
    [Decided August 17th, 1939.]

      Messrs. Collins A. Corbin, for the complainant.

      Mr. John Milton and Messrs. Evans, Smith A Evans, for the defendant.
   Staeeord, A. M.

The complainant in this maintenance suit filed a bill in the court of chancery under section 26 of the Divorce act, in which she charged that her husband, Peter Adams, had, since June 20th, 1936, abandoned her without justifiable cause, and had refused and neglected to properly maintain and provide for her and the children of their marriage.

The bill furthermore set up that the defendant had fraudulently obtained a decree of divorce against complainant in the court of the first instance at Athens, Greece, on or about April 12th, 1934.

This bill was subsequently amended, and a third cause of action added, wherein the complainant petitioned the court to order the defendant to pay to the complainant the sum of two thousand and one ($2,001) dollars due under the terms of an agreement made by and between complainant and defendant on or about April 25th, 1935.

Defendant answered both the original and amended bill of complaint, and in his answers denied the material allegations set forth therein.

Issue was joined and the matter came on for a final hearing.

Marriage and residence have been amply proved and corroborated.

The issue of abandonment has been practically admitted by the defendant because he failed to introduce evidence to justify his separation from the defendant. However, defendant denies the allegations that he had refused and neglected to maintain and adequately provide for the complainant and the children of their marriage.

Defendant, in answering the third cause of action in the amended bill of complaint, charges that the said agreement of April 25th, 1935, is void as against public policy, and that it was an agreement made for maintenance while the parties were living together as man and wile, and further that there was no consideration to uphold the said agreement.

The parties were married on or about the 26th day of August, 1918, and the following children were born of the said marriage, namely: Arthur P. Adams, age sixteen years; Stewart Adams, age fifteen years; Jean Adams, age ten years, and Nicholas P. Adams, age twenty-three months, all of whom are in the custody of the complainant at the present time.

The evidence reveals that in the year 1933 complainant and defendant, with their three children, Arthur Adams, Stewart Adams, and Jean Adams, made a trip to Europe, and it was while they were on this apparent pleasure jaunt that the defendant commenced divorce proceedings against the complainant, charging her with the crime of adultery.

Upon learning of this fact the complainant immediately left Greece and arrived in the United States sometime in December, 1933, with her son Arthur, and resumed residence in the city of Paterson, where she has resided ever since.

A maintenance suit started in the court of chancery was discontinued and the parties entered into an agreement dated April 25th, 1935, whereby the defendant agreed to apply to the1 court of the first instance at Athens, Greece, to set aside the Grecian divorce decree obtained by him against the complainant; also, resume cohabitation with complainant in the city of Paterson and pay her one hundred and eighty-eight ($188) dollars per week; also, make complainant beneficiary in a life insurance policy amounting to the sum of twenty-five thousand ($25,000) dollars; also, deliver to complainant a deed to the property known as 540 Fifteenth avenue, in the city of Paterson, county of Passaic and State of New Jersey.

The defendant observed all the conditions of this agreement, with the exception of the payment of the sum of one hundred and eighty-eight ($188) dollars each week. Without the consent of the complainant he reduced this sum to one hundred ($100) dollars each week.

The parties resumed and continued cohabitation in the city of Paterson from April, 1935, until December, 1935, at which time the defendant left on a trip, and did not return until the month of June, 1936. On June 20th, 1936, the abandonment took place, since which time the parties have not resided together.

While the defendant has seen fit not to contest the charges of abandonment, the court holds, upon the facts, that an abandonment actually took place. However, it is incumbent upon the complainant not only to sustain her allegations of abandonment, but she must also sustain her charge that the defendant refused or neglected to maintain and'provide for her.

The defendant, with his brother, Adam Adams, in their early youth, and 'apparently through their own efforts, rose from a menial and lowly position in life to one of promise in the moving picture industry. As his financial condition improved, his family mode of living correspondingly kept pace with his business successes.

There can he no doubt, from the evidence, that prior to the commencement of their marital difficulties the defendant was a good father, husband and family provider. He was not only interested in the comfort and convenience of his family, but was very much interested in the proper and necessary education of his children. The family had two automobiles, and he was giving the complainant a weekly allowance of two hundred ($200) dollars. Mrs. Adams lived in a large, comfortable home, had accounts in the expensive department stores in Sew York City, and every summer enjoyed the pleasure of a summer vacation. Two children attended private school, one at Lawreneeville, and one at Princeton University.

The conclusion is inescapable, that prior to the commencement of family disturbances, the defendant had been a lavish husband and father. He had gradually raised the standard and mode of living of the family as his financial worth increased, and prior to the family’s trip to Greece, the high cost of maintaining and caring for his wife and children caused him no worry or complaints.

The trip to Greece evidently brought about a complete change in his family relations and his finances.

The final separation took place on or about June 20th, 1936. Prom that date until October 1st, 1936, the defendant paid complainant the sum of one hundred and twenty-five ($125) dollars each week, and from October 1st, 1936, to December 24th, 1936, the defendant paid the complainant the sum of one hundred ($100) dollars each week. On December 23d, 1936, this court made a preliminary allowance pendente Kte to the complainant in the sum of two hundred ($200) dollars each week, and the defendant has obeyed the order of the court in this regard.

The evidence shows the complainant has no means or income other than that provided for her by the defendant.

The mere fact that the husband fixed a sum of money to be given to his wife for her support and maintenance will not divest the court of chancery of the jurisdiction conferred by statute, if this sum is insufficient for her proper support. Calabrese v. Calabrese, 104 N. J. Eq. 450; 146 Atl. Rep. 330.

In “Exhibit D-6,” which is a report of the net worth and income of Peter A. Adams, it is specifically set forth on page 19 that the total income of Peter A. Adams for the years 1932, 1933, 1934, 1935 and 1936 were as follows: 1932, $24,537.98; 1933, $19,479.34; 1934, $14,754.49; 1935, $20,639.85; 1936, $28,213.38. Deductions were not included in these figures.

“Exhibit D-7,” which is a supplemental report on the net income of Peter A. Adams for the year 1937 shows that his total income for 1937 was $38,537.76. Deductions are not included in this figure.

Thése figures indisputably show that the defendant’s total income was on the increase from the year 1935 up to and including the year 1937.

Prior to the filing of the bill in the instant case, the defendant apparently encountered very little difficulty in providing ample funds for his wife’s comfort, which funds enabled her to not only .bring up her family, but to enjoy a standard and scale of living apparently commensurate with the financial qualifications of the defendant.

However, after marital difficulties put in an appearance, it is clear from the evidence that the defendant then decided to lower the scale and standard of living which the complainant enjoyed, giving as a reason, not only a marked decline in bis financial condition and annual income, but a serious decline in his physical condition due to an ever present heart condition.

During the pendency of the instant suit the defendant sold his stock in the Essex Amusement Company to his brother, Adam Adams, for the sum of fifty thousand ($50,000) dollars. In the year 1937 the defendant enjoyed through this particular stock a salary of fifteen thousand ($15,000) dollars, ánd a dividend of. sixteen thousand ($16,000) dollars.

Defendant and his brother, Adam Adams, during the pend-ency of this suit, entered into an agreement whereby the defendant surrendered to his brother, Adam Adams, his fifty per cent, interest in the numerous enterprises in Newark, New Jersey, and his brother, Adam Adams, transferred to the defendant his fifty per cent, interest in the numerous Paterson enterprises.

The reason for this change of interests was stated that the complainant’s legal activities had interfered with the numerous business activities of the Adams brothers, and that unless such a division took place the legal undermining of the business ventures might result in irreparable damage and injury to the assets of the various corporations in which both brothers were interested.

The complainant charges that the transfer of the defendant’s interest in the Essex Amusement Company for the sum of fifty thousand ($50,000) dollars, and the transfer of his fifty per cent, interest in the Newark corporations were based upon a fraudulent attempt on his part to dissipate the assets of the defendant during the pendency of this suit; that the transactions were not bona fide, but brought about solely for the purpose of materially decreasing his financial worth in an effort to influence the court concerning his financial qualifications with regard to the support of his wife and children.

The comparison of the value of the Paterson holdings, which ¿kdam Adams conveyed to the defendant, and the value of the holdings in the Newark properties which the defendant conveyed to his brother, Adam Adams, leads the court to believe that Adam Adams got the better of the bargain.

A minute resume of the testimony would lead to a prolonged discussion of financial worth and value, which would serve no useful purpose. Suffice it is to say that the Adams brothers’ holdings in the Newark properties far exceeded in value the Adams brothers’ holdings in the city of Paterson.

The complainant charges that these assets were conveyed by the defendant to his brother, Adam Adams, in order to waste his estate and defeat complainant’s claim for separate maintenance. She charges that the defendant willingly entered into these agreements with his brother for the. sole purpose of depriving the complainant of her rights under the law. However, she does not petition the court to set aside these alleged fraudulent transfers and conveyances between the defendant and his brother. She is neither a creditor, nor has she in hex possession a decree, and the alleged fraudulent transferee, Adam Adams, is not a party to these proceedings. Clark v. Clark, 13 N. J. Mis. R. 49; 176 Atl. Rep. 81.

She asks that all of the assets and property rights, which were, as she claims, fraudulently conveyed by the defendant to his brother, Adam Adams, to defeat complainant’s claim for separate maintenance, be regarded and considered in settling the allowance, if any, granted to complainant.

There must be factual basis for determining a transfer or conveyance fraudulent;' it cannot rest upon a mere suspicion, presumption or conjecture, and the husband’s income, assets and holdings must be established by competent evidence. But if it is determined that the assets and holdings of the husband were fraudulently conveyed by him to his brother, Adain Adams, to defeat the wife’s claim for separate maintenance, then these properties and holdings should be considered by the court in making and settling an allowance. Fraud, however, can never be presumed; it must be proved. Grobart v. Grobart, 119 N. J. Eq. 565; 182 Atl. Rep. 630.

During the pendency of this suit the defendant saw fit to convey his interests in the Essex Amusement Company and his holdings in the Newark corporations. If this case were not pending, the defendant’s conveyance of his interest in the Essex Amusement Company for the sum of fifty thousand ($50,000) dollars, out of which interest he not only enjoyed a salary of fifteen thousand ($15,000) dollars, but a dividend of sixteen thousand ($16,000) dollars, would lead one to believe that this very successful business man was suddenly bereft of his business acumen and in a moment of abandonment and thoughtlessness had recklessly entered into a contract without giving the matter much thought or concern. But the defendant was a very capable, intelligent and successful individual. What he did in this particular instance he did after giving the matter weighty consideration, and if this is so, the conclusion is inescapable that he had an ulterior motive in so doing, and that was to attempt to discard a burden which the law cast upon him of supporting his wife and children in a proper and suitable manner, according to his means. The fact that this conveyance took place while his wife was suing him for support and maintenance in this court is evidence of fraudulent intent.

The same reasoning applies to his conveyance of his holdings in the Newark properties to his brother, Adam Adams.

The defendant alleged that he was unable, for a long period of time, to actively attend to his business affairs and gave as a reason for his inactivity a heart condition which compelled him to cease his business activities and seek health and quiet in Saratoga, Florida, and other health restoring and life sustaining environments. In fact, his loss of health was one of his main reasons for disposing of his holdings in the Essex Amusement Company to his brother, Adam Adams, for the sum of fifty thousand ($50,000) dollars.

While it is true that the evidence does show the defendant was suffering from a heart ailment of some character or description, proof was utterly lacking to prove that it was of such a grievous or grave nature as to endanger his health were he to continue his activities as he had done before his marital difficulties put in an appearance. This fact has not been established by such clear and convincing proof as would relieve the court of its perplexed condition of doubt that such was the case.

It is worthy of note that although the defendant carried several insurance policies containing disability clauses which would have entitled him to substantial compensation by reason of his physical disability, yet the record is barren of any evidence showing an effort on his part to file an application claiming this substantial compensation on account of his physical disability.

I am convinced that the condition of the defendant’s health after family troubles arose was no different than the time when both parties were living happily together and he was showering upon his wife, without complaint, not only great comforts and conveniences but many luxuries as well.

The defendant not only disposed of a large part of his assets but he abandoned the field of his activities wherein he enjoyed great financial benefits. The complainant challenges the industry, earning power and willful and wanton lack of business activity on the part of the defendant in order to avoid his marital obligation of support.

In determining the matter of alimony to be awarded the court may take into consideration not only the husband’s property and income, but also his capacity to earn money from personal attention to business. If this were otherwise a husband, by deliberate intent or disinclination to work, might avoid his marital obligation of support. Robins v. Robins, 106 N. J. Eq. 198; 150 Atl. Rep. 810.

In Pinkinson v. Pinkinson, 91 N. J. Eq. 281; 109 Atl. Rep. 781, the defendant was earning $75 a week. After suit was brought against him by his wife, he resigned his position and at the final hearing informed the court he had no employment. The court held: “I think this resignation,was the result of a thought that it would have a bearing, advantageous to him, on the amount this court would award the complainant, because he says he thinks he can go back to his old position. I believe his earning capacity is $75 per week.”

In Dietrich v. Dietrich, 88 N. J. Eq. 560; 108 Atl. Rep. 212, the court, in determining the amount of permanent alimony to be allowed for the support of the wife, said: “There should be taken into account the financial condition and social position of the parties, the husband’s property and income (including what he could derive from personal attention to business).” To the same effect, Dinnebeil v. Dinnebeil, 109 N. J. Eq. 594; 158 Atl. Rep. 475.

No rigid standard can be set up whereby to measure in •every case the amount of permanent alimony for the support of the wife. The amount is not fixed solely with regard, on the one hand, to the actual means of the wife, nor, on the other hand, to the husband’s actual means. There should be taken into account the physical condition and social position of the parties, the husband’s property and income, including what he could derive from personal attention to business, and also the separate property and income of the wife. Considering all factors bearing upon the question, the sum is to be fixed at what the wife would have the right to expect as support if living with her husband. Dinnebeil v. Dinnebeil, supra.

The complainant is entitled to an allowance commensurate with the allowance granted to her by her husband which apparently satisfied her requirements while they were living together. She is entitled to be maintained on the same basis mutually agreed upon by the parties and found satisfactory before family troubles put in an appearance. She is not entitled to support on a more luxurious scale than that to which, she had been accustomed during their happy- married life. Providing of course the financial qualifications of the husband have not suffered such a noted decrease as to make this allowance too great a burden for him to sustain. She is entitled to a sum sufficient to properly maintain and support' her and the children of their marriage in the same manner which she enjoyed and which apparently satisfied her during the years of her married life.

While living together the complainant enjoyed the use of a Cadillac automobile and had charge accounts in expensive stores in Yew York City. She received two hundred ($200) dollars a week from the defendant, out of which she paid seventy ($70) dollars or eighty ($80) dollars for food, twenty ($20) dollars to a maid, twenty-five ($25) dollars for clothing, some expenses for laundry work, and some little luxuries.

The defendant, on the other hand, paid the taxes on the home, insurance premiums, fuel bills, automobile expenses, costs of vacations, camp for the boys, trips to the shore and the mountains, and also tuition fees for two of the children in private schools. The complainant testified that the defendant told her the European trip to Greece cost between ten thousand ($10,000) dollars and fifteen ($15,000) thousand dollars.

It is apparent, from the above facts, that while the parties were living happily together the defendant not only was not worried or harassed about family expenses, but satisfied the family’s every whim and desire uncomplainingly. When love flew out the window the defendant’s physical condition and financial structure underwent a metamorphosis. The liberal and extravagant husband and father immediately became the begrudging and discontented spouse and parent.

I am of the opinion that the complainant has sustained the allegations contained in her bill of complaint; that on June 20th, 1936, defendant did abandon, her without justifiable cause and did neglect to properly provide and maintain for her and the children of the marriage.

I also find that the defendant, were he so inclined, could still be the recipient of the same income as that which he enjoyed prior to the commencement of the family disturbances which resulted in a separation.

The complainant is entitled to and should receive an allowance sufficient to properly maintain and support her and the children of the marriage, not an allowance which would make the separation attractive, but an allowance which would permit her to live according to that scale and standard which she enjoyed and which apparently satisfied both herself and her husband during the years of their married life.

I will advise a decree allowing the complainant the sum of two hundred ($200) dollars each and every week, to be paid by the defendant to the complainant for her support and maintenance, and for the support and maintenance of the children of the said marriage.

During the pendency of the first maintenance suit commenced by the complainant against the defendant the parties came to an understanding which resulted in the agreement dated April 25th, 1935, above referred to.

The complainant, on her part, agreed -to discontinue and did discontinue the then pending maintenance suit, and the defendant did pay to the complainant the sum of one hundred and eighty-eight ($188) dollars each week until June 20th, 1936. Prom June 20th, 1936, until October 1st, 1936, the defendant paid to the complainant the sum of one hundred and twenty-five ($125) dollars each week, and from October 1st, 1936, to December 24th, 1936, the defendant paid to the complainant the sum of one hundred ($100) dollars each week.

Complainant alleges that under the aforesaid agreement of April 25th, 1935, there is due and owing to her the sum of two thousand and one ($2,001) dollars, because defendant failed to live up to his agreement to pay her the sum of one hundred and eighty-eight ($188) dollars each week. The order of this court allowing complainant pendente lite the sum of two hundred ($200) dollars each week was dated December 23d, 1936.

The court of chancery has exclusive jurisdiction over contracts entered into between husband and wife. While at law agreements between husband and wife are void, in equity such agreements will be recognized, and will be enforced if fair and fairly obtained; There is nothing in this agreement which, would lead the court to believe that it was immoral or against public policy; in fact, the court is of the opinion that at the time the contract was entered into by and between the complainant and defendant on April 25th, 1935, the terms were fair and the contract was fairly obtained, and, since which time, the court is not convinced that circumstances have arisen which would make the enforcement of said agreement inequitable. Cohen v. Cohen, 121 N. J. Eq. 299; 188 Atl. Rep. 244.

The complainant has sustained her allegations set forth in the third cause of action and is entitled to the sum of two thousand and one ($2,001) dollars, which is the total amount of the arrearages due to complainant by defendant under the terms of the agreement dated April 25th, 1935.

A decree in conformity with the above findings may be presented.


author: Van Winkle, A.'M.

text:
    Leo Gattoni, petitioner, v. Edith Clausen Gattoni, defendant.
    [Decided September 7th, 1939.]

      Messrs. Leven, Gomen & Levenson (Mr. Abe D. Levenson), for the petitioner.

      Mr. Carl Weitz, for the defendant.
   Van Winkle, A.'M.

On this application in this annulment suit, for a physical examination before trial of the defendant wife, I perceive no reason why the application should not be granted at the proper time, that is, not now, but on final hearing after evidence has been taken and it appears that such an examination should necessarily be ordered that the court may ascertain the truth respecting the charges in the petition that the defendant was afflicted with tuberculosis at the time of the marriage, which fact she concealed from the petitioner.

Counsel for the wife argued that this court had no power to direct, now' or later, that the wife be examined to ascertain if she were afflicted with tuberculosis at the time of the marriage. His argument really was only that. there was no express precedent in New Jersey for such a direction in a tuberculosis case, and so no such direction should be made. He conceded that orders for physical examinations might validly be made in impotency eases and cases of non-consummation; and he made no argument based on any distinction between cases where fraud was alleged and eases where fraud was not alleged.

I think it is entirely clear that this court has an inherent right to order a physical examination of a party in any cause where fraud is alleged, as in this case; but I think that the court should not, in any case, order an examination before final hearing. I think such an examination should be a part of the final hearing; that' it should not be ordered until on final hearing the court has sufficiently heard the evidence to know that a party applying for an examination has not dis-entitled himself, and that such an examination is necessary to enable the court to ascertain the truth of the charges.

And I think it clear that an examination may be ordered in a case where no fraud is alleged. Conceivably, supposing complete innocency, a party might be incurably impotent at the time of his marriage and not know it, and there be no fraud on his part in marrying. In such a case, with no fraud alleged, I think the court may order an examination.

Where the charge is based on an alleged physical condition, whether the charge relates for instance, to impotency or tuberculosis, if, at the hearing it appears to the court that such an examination should be made to ascertain the truth, and if it should also then appear that the other party has not dis-entitled himself by his conduct, ratification, for instance, an order should be made. But only on a hearing can the court be sufficiently informed to properly decide that an order for the examination of the person of a party charged should be made against the objection of that party.

Yelin v. Yelin (1932), 142 N. Y. Misc. 533, a tuberculosis case, is called to my attention by counsel for the husband. In that case the court held that the court of chancery had inherent power to order a physical examination of a party; that such an examination was the shortest way to arrive at the truth; that such an examination may be ordered where the necessities of the case require; that before an examination be ordered the court should first ascertain that the same is necessary, that is, essential to a proper decision of the cause.

“The objection which the defendant most earnestly takes to this order is that the court has no authority to grant one requiring a physical examination of the defendant. In my opinion such objection is not well taken. The old court of chancery never refused, that I can discover, to exercise such authority. On the contrary, it would never grant a decree annulling a marriage on that ground until such an examination had been made by a competent and disinterested surgeon named or approved by the court, and such an examination would be directed and the defendant ordered to submit thereto upon the court’s own motion, in the event that neither party applied, upon the ground that public policy required proof of such charge in order to warrant the dissolution of the marriage contract on that count. Any less efficient proof was clearly so liable to collusion that it was deemed insufficient and unsatisfactory.” Gore v. Gore (1905), 103 N. Y. App. Div. 168.

This case of Gore v. Gore, a case in which a husband’s physical incapacity was alleged, confirms my views, not only that this court has inherent power to order a physical examination of a party, but also that an order for such an examination should not be made before trial. In Gore v. Gore the lower court had made an order for examination before trial before a referee. The Appellate Division reversed as to that, and held that the order should not direct that the depositions of the physician be taken out of court and before trial. The holding was that “An order can be made that the defendant submit to such an examination, to be taken upon and as part of the trial, and the evidence of the surgeons can also be taken as a part of such trial and before the court.”

Authority to the same effect may be found in our own state in the unreported opinion of the late Chancellor Walker, while vice-chancellor, in the case of Butler v. Butler (Docket 29, page 746). The opinion is printed in full in 2 Herr on “Marriage, Divorce and Separation in New Jersey ” 1141.

There should be no order, without consent, on a mere petition for the examination of the person of a party before trial where the party denies the charge. The necessity for an examination should clearly appear before an order for an examination of the person of a party is made; and a judgment by the court that there is such necessity can be made only on the trial. It may appear on the trial that the party applying for an examination of the other party has disentitled himself to an examination.

The method of examination by commission is cumbersome, and it calls for expenses to be borne by one or both of the parties which may be partly avoided where an examination is made under an order for examination not followed by the issuance óf a commission. A party is not easily able to show the incompetence, the interest, the bias, or the partisanship of a physician where the examination is made under a commission. I am not sure how any of these things may be shown after a report by physicians acting under a commission is made. Probably by exceptions ? An examination by commission really makes a physician a judge and not a witness. I think a physician appointed to examine should have no status or importance beyond that of a witness. Truth is served and the rights of parties are adequately protected by an order with proper provisions. Physicians named or approved by the court should be appointed; and the order should so provide that any physician appointed may be called by either party or by the court for examination on the trial, as a sworn witness. This makes the examination of the party a part of the trial.

A physician appointed by the court to make an examination should take the stand on the trial that he may be examined about his competence, his interest, or his bias. A carefully-appointed physician may become a partisan of a party after he is appointed. I see no reason why an examination should be made, or why it needs to be made, under a formal commission, which calls for a report in writing by the physicians appointed, to which report exceptions may be filed. See 2 Herr’s Marriage, Divorce & Separation, forms 146-150.) The physicians should appear on the trial for oral examination. An order for an examination should provide that any physician making an examination is to appear on the trial to be sworn as a witness to testify not only respecting the examination made by him but respecting his competence, bias and interest. A physician may be appointed who should not have been appointed. The fees to be paid a physician should be fixed by the court. Neither party should be permitted to deal directly with a physician who is appointed or to pay such physician anything more than the sum fixed by the court. The party applying for the examination should pay the sums fixed by the court in the first instance. The court may after-wards, if the examination has been resisted, and depending on all the circumstances, ultimately order otherwise.

The application for a physical examination may be renewed on the trial.


author: Campbell, A. M.

text:
    Demitros Polyckronos, petitioner, v. Helen B. Polyckronos, defendant.
    [Decided July 1st, 1939.]

      Mr. James E. White, for the petitioner.

      Messrs. Slceffington <& Walker (Mr. William J. Welilcy), for the defendant.
   Campbell, A. M.

Demitros Polyckronos sued his wife in this court for desertion. She counter-claimed for adultery and a decree nisi was advised in her favor. This decree also provides for further appearance of the parties for the purpose of determining whether or not Mrs. Polyckronos is entitled to alimony and, if so, in what amount.

Mr. Polyckronos resists this application on the ground that he and his wife entered into a written agreement September 11th, 1930, while both were residents of the State of Mew York, under which he paid her $3,000 in lump sum; he maintains that the agreement is valid in Mew York and that, consequently, this court is bound to recognize it as such because of the principle of comity. While Mrs. Polyckronos admits that the agreement is valid in Mew York she insists, though, that it is of no binding effect here because it is contrary to and in conflict with the declared public policy of this state and therefore the principle of comity cannot be applied. The agreement states, inter alia, that these parties were living separate at the time of its execution and that the wife "does hereby release and discharge the party of the first part of and from any and all claims both past, present and future, of every kind, nature and description, for maintenance and support, or of any other claim by way of alimony or otherwise * * Both parties subsequently removed to and took up their separate residences in this state.

The agreement was valid and binding upon these parties in New York and the obligation of Mr. Polyckronos to further contribute to his wife’s maintenance and support, for so long as he remained resident there, was, accordingly, extinguished. Court of appeals in Winter v. Winter, 191 N. Y. 462; 84 N. E. Rep. 382. But when, however, Mr. Polyckronos became a resident of this state his status changed; he automatically became amenable to our laws. Not only that but he sought the benefit of the laws of our forum in an action to divorce his wife and with the undoubted anticipation that in the event of her counter-claiming and being awarded a decree he would, in reliance upon his foreign-made agreement, escape a possible alimony order.

A contract is construed according to the law of the place where made but the method of enforcement must be in accordance with the lex fori which, in the instant case, is the law of New Jersey. Dennison v. Dennison, 98 N. J. Eq. 230; 180 Atl. Rep. 463; affirmed 99 N. J. Eq. 883; 133 Atl. Rep. 919; Scudder v. The Union National Bank of Chicago, 91 U. S. 406; 23 L. Ed. 245.

In Thompson v. Taylor, 66 N. J. Law 253; 49 Atl. Rep. ,544, the court of errors and appeals ruled that a contract valid elsewhere will not be enforced if it is inconsistent with the public policy of the jurisdiction the aid of whose tribunals is invoked for the purpose of giving it effect; that when the legislature has declared the policy of the state in relation to a given subject-matter, it is the duty of the courts to give effect, so far as possible, to that policy. In Receiver of the State Bank at New Brunswick v. The First National Bank of Plainfield, 34 N. J. Eq. 450, this court declared that the laws of other governments have no force beyond their territorial limits, and if permitted to operate in other states it is upon a principle of comity, and only when neither the state nor its citizens would suffer inconvenience from the application of the foreign law; that no state is bound to give effect to the law of a foreign state when, to do so, will prejudice.either the rights of its citizens or the interests of the state; that, on the contrary, each state is bound to give its citizens the full benefit of all the remedies and securities provided by its laws.

Mr. Justice Eeed, speaking for the Supreme Court in Wright v. Remington, 41 N. J. Law 48, 52, stated that whatever may be our opinion of the policy of legislation beyond our state, we are bound by the principles of comity to recognize its validity unless it clearly contravenes the principles of public morality or attacks the interest of the body of the citizens of our state.

In Flagg v. Baldwin, 38 N. J. Fq. 219, the court of errors and appeals ruled that the enforcement of foreign-made contracts dependent thereon for validity within another jurisdiction and by the courts of another forum, is not to be demanded as a matter of strict right. It is permited, if at all, only from the comity which exists between states. Every independent community must judge for itself how far this comity ought to extend; that a contract valid where made will not be enforced by the courts of this state — at least against its residents and citizens — if, in doing so, they must violate the plain public policy of this forum, or if its enforcement would be injurious to the interest or conflict with the operation of the public laws of this state. Cited by Mew Jersey Supreme Court in Park Heights v. Brooks (no state report), 94 Atl. Rep. 83.

In Brooks v. Cooper, 50 N. J. Eq. 761; 26 Atl. Rep. 978, the court of errors and appeals ruled that contracts must not contravene the provision or policy of a public law; that a contract may be illegal, although not in contravention of the specific directions of a statute, if it be opposed to the general policy and intent thereof; that it is not necessary that the statute should contain words of positive prohibition. See, also, Hinkley v. Freick (Court of Errors and Appeals), 86 N. J. Law 281; 90 Atl. Rep. 1108.

In Corbin v. Houlehan, 100 Me. 246; 61 Atl. Rep. 131, the supreme judicial court ruled that courts recognize the laws of other states pertaining to contracts and give them force and effect upon the principles of comity. But whatever force and obligation the laws of one state have upon another depends upon the laws and regulations of the latter; upon its own proper jurisprudence or policy, or upon its own express or tacit consent. It belongs exclusively to each sovereignty to determine for itself whether it can enforce a foreign law without at the same time neglecting the duty it owes to its own citizens or subjects. It is upon the principle of the voluntary act of comity that contracts valid where made, but invalid in the state of the forum, will be enforced in the later state if not contrary to the established policy of that state.

Comity is not a rule of law but one of practice, convenience and expediency; it does not command, it only persuades.

By force of the foregoing authorities it is evident that if a foreign-made contract violates the established policy of this state, comity will not persuade its enforcement although the contract may be valid according to the laws of the state wherein it was made.

In Felt v. Felt, 59 N. J. Eq. 606; 45 Atl. Rep. 105, the court of errors and appeals declared substantially to the effect that state policy, when determined by the legislature, controls the judicial branch of the government, and the legislature of New Jersey, by vesting in its court of chancery sole jurisdiction over the subject of divorce and nullity of marriage, alimony and maintenance, has declared what our policy in this regard shall be.

The most recent pronouncements of the court of errors and appeals incident to separation agreements being Apfelbaum v. Apfelbaum, 111 N. J. Eq. 529; 162 Atl. Rep. 543; Second National Bank v. Curie, 116 N. J. Eq. 101; 172 Atl. Rep. 560; Aiosa v. Aiosa, 119 N. J. Eq. 385; 183 Atl. Rep. 219, and Phillips v. Phillips, 119 N. J. Eq. 462; 183 Atl. Rep. 220, no good purpose will be served herein by an extended review of previous decisions of that court which appear to be in conflict. For a very able treatise dealing with these cases see Cohen v. Cohen, 121 N. J. Eq. 299; 188 Atl. Rep. 244, by Vice-Chancellor Berry.

My conclusion is that comity does not persuade the recognition of foreign-made agreements when to do so would he to violate the declared public policy of this state; that all agreements, wherever made, entered into directly between husbands and wives, and whether before or after the marriage is dissolved, which attempt to fix support and maintenance, are void per se because contrary to the public policy of this state as declared by what is commonly known as our Divorce act, being 1 R. S. (1937) 2:50-1 et seq., and formerly 2 Comp. Stat. 1910 p. 2021; I am of opinion that this conclusion finds ample support in the picked at random citations that follow and which do not, by any means, exhaust the law on the subject.

The court of errors and appeals stated, in Sobel v. Sobel, 99 N. J. Eq. 376; 132 Atl. Rep. 603, that an essential factor to be kept in mind and considered in determining the legal effect to be given to settlement agreements made between husband and wife is that the marriage relation is a status governed by a declared state policy, and hence the state, for the conduction of the public welfare, is largely concerned in carrying out its legislative policy. One of the principal duties arising out of the marital tie is the duty of the husband to provide suitable support and maintenance for his wife. This is a common law duty arising out of the status of wedlock. The obligation to support and maintain the wife does not arise out of any contract between husband and wife to that end, but out of a state policy, recognized and enforced by the civil and common law. In White v. White, 87 N. J. Eq. 354; 100 Atl. Rep. 235, the court of errors and appeals ruled that.a husband and wife cannot contract to disregard their marital obligations. In Boehm v. Boehm, 88 N. J. Eq. 74; 101 Atl. Rep. 423, cited in Hires v. Hires, 91 N. J. Eq. 366; 110 Atl. Rep. 513; affirmed, 92 N. J. Eq. 451; 112 Atl. Rep. 498, it was declared that if a husband can, by agreement with his wife, absolve himself from the duty of support for all time, it is obvious that this court is rendered powerless to perform the duty imposed by our Divorce act. Irwin v. Irwin, 98 N. J. Eq. 454; 131 Atl. Rep. 304; affirmed, 100 N. J. Eq. 347; 181 Atl. Rep. 918, states that no adjudication appears to have been made in this state in which it may be said that an agreement between husband and wife stipulating the amount the wife shall be entitled to receive in satisfaction of the husband’s duty of support, has been recognized as operative to withdraw from this court the performance of its statutory duty. In Moller v. Moller, 121 N. J. Eq. 175; 188 Atl. Rep. 505, this court stated substantially to the effect that inasmuch as our Divorce act (then 2 Comp. Stat. 1910 p. 2021, now 1 R. S. (1937), 2:50-1 et seq.) gives to chancery jurisdiction to award alimony and from time to time to increase or diminish it, any contract between husband and wife attempting to fix alimony is contrary to the policy of that statute and therefore void. To the same effect, Lester v. Lester, 122 N. J. Eq. 532; 195 Atl. Rep. 381. And, in Hollingshead v. Hollingshead, 91 N. J. Eq. 261; 110 Atl. Rep. 19, this court declared that, considering the fundamental principal that the matrimonial status is a matter of concern not merely to the two spouses but equally so to the state, the legislature has laid down, by statutory provisions, a definite pronouncement of the public policy of this state. This court, in Schneider v. Schneider, 103 N. J. Eq. 149; 142 Atl. Rep. 417, in referring to Felt v. Felt (Court of Errors and Appeals), 59 N. J. Eq. 606; 15 Atl. Rep. 105, said: “That decision was primarily based upon the public policy of this state in matters of divorce as ascertained by the legislation on that subject then existing.” In Lynde v. Lynde, 64 N. J. Eq. 736; 52 Atl. Rep. 694, the court of errors and appeals held that the purpose of our Divorce act is to require the husband to pay to the wife, periodically, such sum as, in view of his circumstances and the necessities of the wife, will be a reasonable fulfillment of his continuing duty to support her. And, in Irwin v. Irwin, supra, what the court cannot admeasure as a finality the husband cannot limit by the purchase of immunity (separation agreement) from future liability should conditions arise in which justice impels a reassertion of the rights of the wife. This court held, in Greenberg v. Greenberg, 99 N. J. Eq. 461; 133 Atl. .Rep. 768, that 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. In Apfelbaum v. Apfelbaum, supra, the court of errors and appeals declared that our decisions hold uniformly that alimony is a subject specifically committed to the court of chancery and arising from the present or past status of the parties as husband and wife. The jurisdiction not only exists while that relation persists but by the express language of the Divorce act, section 25, 2 Comp. Stat. 1910 p. 2035 (now 1 R. S. (1937) 2:50-37), continues after decree of divorce; and it necessarily includes the power, in cases where the wife is entitled to alimony, to regulate the amount thereof from time to time, to supervise agreements between the parties in that regard, to enforce them if deemed just and to decline to recognize them otherwise. In Phillips v. Phillips, supra, the court of errors and appeals ruled that agreements may be regarded by the court as evidential with regard to the amount of money to be paid, though not controlling in that regard. And, by the same court, in Aiosa v. Aiosa, supra, that the reasonable needs, of the wife and the ability of the husband must be shown.

Since the court of chancery has no inherent jurisdiction to decree alimony or maintenance (Freund v. Freund, 71 N. J. Eq. 524; 63 Atl. Rep. 756; affirmed, 72 N. J. Eq. 943; 73 Atl. Rep. 1117; Hervey v. Hervey, 56 N. J. Eq. 424; 39 Atl. Rep. 762), it follows that the remedies intended by the court of errors and appeals in the Apfelbaum, Curie, Aiosa and Phillips Cases, supra, are those provided by our Divorce act, sections 25 and 26, 2 Comp. 8tat. 1910 p. 2021, now 1 R. S. (1937) 2:50-37 and 2:50-39. Pierson v. Pierson, 15 N. J. Mis. R. 117; 189 Atl. Rep. 391.

It is logical to conclude, then, that the jurisdiction of this court incident to support agreements, as emphasized and reaffirmed in those cases (Apfelbaum and others, supra), may be defined as the power, in all cases where the wife or ex-wife is entitled to support, to enforce the husband's legal obligation to support as distinguished from the power to enforce the contract; the power to fix the measure and direct the performance of that obligation in the form of a decree for alimony or separate maintenance, having regard to, but not being controlled by, any agreement which the parties themselves may have made with respect to the measure of the husband’s duty; that so long as the husband’s legal (as distinguished from contractual) obligation exists, the parties are incompetent to make an absolute agreement by fixing the measure of that obligation. Noel v. Noel, 15 N. J. Mis. R. 576; 198 Atl. Rep. 558. In other words, an agreement between husband and wife serves merely to liquidate or admeasure the quantum of that obligation under the circumstances prevailing at the time it was made; it serves somewhat in the nature of a yardstick for the court’s guidance in determining, inter alia, what the husband’s faculties were at the time the agreement was entered into.

The State of New Jersey, represented by this court, does not manifest what might be termed an active interest in or supervision over the marital affairs of husbands and wives domiciled here so long as justifiable causes of action do not exist between them. When, however, a justifiable cause does accrue then the benefits of the statute become available; and I do not perceive of a single situation wherein a wife, she being guiltless of a matrimonial offense, would be disentitled to all necessary relief under that statute even though she and her husband had entered into a separation agreement. In other words, a separation agreement between husband and wife is not a bar to the wife’s right to alimony, because if she is the innocent party she may take the proper steps to terminate the separation, unless excused by her husband’s act or attitude, and sue for separate maintenance.

The interest of the state lies in encouraging rather than in discouraging the husband from acknowledging his obligation; its interest lies in securing proper maintenance for the wife and children without protracted litigation. This can be effectually accomplished by a decree for maintenance in which the allowance is fixed by the court, or, if agreed upon, approved and modified from time to time by the court to meet the changing circumstances of the parties. The practice of entering separate maintenance decrees upon consent is well established and there can be no valid objection to the husband’s waiver of defenses in such a case. The sole purpose of such a decree is to liquidate into a judicial order the husband’s common law obligation to support his wife; that so long as the effect of such decree is confined solely to the matter of support there can be no sound reason for declining to rest it upon the husband’s consent. Adams v. Adams (Court of Errors and Appeals), 80 N. J. Eq. 175; 83 Atl. Rep. 190; Pierson v. Pierson, supra.

The fact that the legislature has prescribed a particular mode to be pursued in determining an abandoned wife’s maintenance and a divorced wife’s alimony, necessarily excludes the right to resort to any other or different method. Consequently, the agreement in question, though valid where made, is not enforceable here because it violates the public policy of this state as declared by our Divorce act, supra, and therefore is within the exception to the rule of comity.

Mr. Polyckronos should be ordered to pay as much alimony as will support his former wife in the same degree of ■comfort as she might reasonably expect to enjoy if living with him in a state of domestic happiness. Payment of the gross sum, which Mrs. Polyckronos accepted in discharge of her future claims to support, cannot be regarded as standing upon a plane different from agreements contemplating periodical installments. Hires v. Hires and Irwin v. Irwin, supra. Inquiry, then, should now be made not only as to his financial circumstances and faculties but, also, as to what portion of the $3,000 Mrs. Polyckronos has not expended for her own support. In arriving at what, if any, permanent alimony she may be entitled to, such unexpended balance shall be given consideration by way of offset or refund, as the circumstances may warrant.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ALBERT POWERS, PETITIONER, v. Y. M. C. A. OF BAYONNE, RESPONDENT.
    Decided July 14, 1939.
    For the petitioner, Maurice M. Krivit.

    For the respondent, A. Lionel Reid.

   ifc # Hs # sN ❖ ❖

1. Petitioner testified that he was employed by the respondent as a pin boy in the bowling alleys and that his average earnings approximated $10 per week.

2. While engaged in this employment on the 28th day of February, 1938, and working in what is described as a pit where the pins are set up, a fellow employe by the name of Ernest Melofcheek tossed one of the bowling balls to him in a manner unexpected as a result of which petitioner sustained an injury involving the right small finger. Petitioner was thereafter treated by Dr. Frank of the city of Bayonne. Petitioner stated this action on the part of his fellow employe was not necessary for the carrying out of the duties of either employe. The testimony of Ernest Melofcheek was accepted by stipulation of counsel in the form of a statement executed by Ernest Melofcheek March 22d, 1938. This statement was introduced in evidence as Exhibit R-l. It appears from the aforementioned statement that Melofcheek in a spirit of skylarking, or as is expressed in the statement, “on the impulse of the moment,” threw the ball to the petitioner in the manner described above.

• The respondent denies the accident incurred by the petitioner arose out of and in the course of his employment and alleges the injury was incurred as a result of skylarking.

Counsel for petitioner admits such is the proper statement of facts but alleges that petitioner is entitled to compensation on the grounds that petitioner was the innocent victim and did not partake in the skylarking. This issue, however, has been decided in the case of Hulley v. Moosbrugger (1915), 88 N. J. L. 161; 95 Atl. Rep. 1007, and Colucci v.Edison Portland Cement Co. (1920), 94 N. J. L. 542; 111 Atl. Rep. 4. I am of the opinion, therefore, that the employer is not liable to make payment of compensation for an injury to the petitioner as the result of horse-play or skylarking whether the injured instigated the occurrence or took no part in it. ■While such an accident under these circumstances may arise in the course of the employment, it cannot be said to arise out of the employment.

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

Charles E. Corbin,

Deputy Commissioner.