author: Per Cntiah.

text:
    JOHN LABASH, PLAINTIFF-APPELLANT, v. THE BOARD OF EMBALMERS AND FUNERAL DIRECTORS OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 20, 1951 —
    Decided March 21, 1951.

      Before Judges McGeeiiay, Jayye and Wit. J. Breyyay, Jr.

      Mr. Jack Binzler argued the cause for plaintiff-appellant (Messrs. Feeler <& Binzler, attorneys).

      37r. Joseph Lanigan, Deputy Attorney-General, argued the cause for defendant-respondent (3/r. Theodore I). Parsons, Attorney-General of New Jersey, attorney).
   Per Cntiah.

The plaintiff appeals from a determination of the Boat'd of Embalmers and Funeral Directors of the State oí New Jersey (hereinafter referred to as the “board”) made on July 11, 1950, denying his application for a transfer of a permit to operate a branch establishment.

For over 20 years the plaintiff has been licensed by the board as a funeral director and embalmer, and has been engaged in the business of funeral director and embalmer with a main establishment in Passaic, New Jersey. On April 19, 1938, the hoard issued a permit to the plaintiff to establish a branch establishment, and the plaintiff conducted a branch establishment in Woodbridge, New Jersey, until 1939 and thereafter in Passaic, New Jersey, until September, 1949. In the early part of 1949 he applied to the board for a transfer of his permit to operate a branch establishment, so as to he permitted to operate such branch esiablishment at Bockaway, New Jersey, abont eight miles distant from his main establishment in Passaic. The board held a hearing on the application on June 16, 1949. Buie 27 of the board, in effect at the time, provided: “No branch establishment will be permitted within the State of New Jersey, unless there is a licensed resident manager in charge thereof. * * * ”. On October 31, 1949, the board denied the application on the ground that the plaintiff intended to conduct the branch establishment “without engaging a resident licensed embalmer and funeral director” in violation of Rule 27.

On appeal to this court, we held that Rule 27, insofar as it requires the licensed manager of a branch to be “resident,” is void and we remanded the matter to the board for reconsideration, in the light of our holding. Labash v. Board of Embalmers, etc., N. J., 8 N. J. Super. 260 (App. Div. 1950). The appeal was decided June 21, 1950, and on June 30, 1950, the board adopted Rule 36, which the respondent concedes is, in effect, an amendment of Rule 27 and which, among other changes, strikes out the “resident” requirement contained in Rule 27. Rule 36 provides: “No branch establishment shall be permitted within the State of New Jersey, unless there be a licensed branch manager in charge thereof. Such licensee shall personally supervise all work emanating therefrom and he shall not be the licensed manager of any other main or branch establishment and his name as such branch manager shall be at all times conspicuously displayed. * * *” (Italics ours to indicate new matter.) On July 11, 1950, the board reconsidered the plaintiff’s application. The plaintiff again sought a permit for a branch establishment at Rockaway, with the right to conduct both his main establishment and the branch establishment under his supervision. The board again denied the plaintiff’s application on the ground that he had not satisfied the board that such branch establishment would be conducted by a licensed branch manager who would not be a licensed branch manager of any other main or branch establishment, as required by Rule 36.

Plaintiff argues that Rule 36 is unreasonable, capricious and arbitrary and therefore invalid insofar as it requires that each branch establishment must be conducted under the charge of a licensed branch manager who “shall not be a licensed manager of anjr other main or branch establishment.” B. S. 4-5:7-19 empowers the board to adopt rules and regulations in accordance with which “the business of preparing or of embalming dead bodies and of disinfecting the bodies of persons- dying of a contagious or infectious disease and tlie business of funeral directing shall be conducted.” Plaintiff concedes that the requirement of Kule 36 that the branch establishment must be conducted under the charge of a licensed manager is a reasonable requirement “having to do with safeguarding the public health” but contends that the further requirement that the licensed manager “shall not be the licensed manager of any other main or branch establishment” is unreasonable, capricious and arbitrary and has no real or substantial relation to the protection of the public health.

Such rules must bear some reasonable relation to the public health, be reasonably adapted to prevent some existing or anticipated menace, and not be arbitrary or oppressive. Labash v. Board of Embalmers, etc., N. J., above; 25 Am. Jur., Health, § 21; 39 Corpus Juris Secundum, Health, § 25; cf. Abelson’s, Inc., v. N. J. State Board of Optometrists, 5 N. J. 412 (1950).

The respondent argues that the questioned requirement of Rule 36 is valid because it would be hazardous to the public health to permit the operation of a branch establishment by an unlicensed person ignorant of the rudiments of disinfecting and unfamiliar with the basic principles of coping with an infectious disease. This argument wholly begs the question at issue, because the plaintiff concedes the validity of the requirement of the rule of the Board requiring that the branch establishment be conducted under the charge of a licensed manager. The plaintiff seeks a permit for a branch to be conducted under his charge and supervision. If violations of the statute occur in the conduct of the branch, the statutory penalties (R. S. 45:7-22) may be invoked and the plaintiff’s license may be suspended or revoked by the board (R. S. 45:7 — 21) and if a violation of a valid rule or regulation of the board occurs, the plaintiff’s license may be suspended or revoked by the board (B. S. 45 :7-21).

Ao reason has been advanced by the respondent and none has been perceived by us to support a holding that the questioned provision of the rule has, in any degree or under any reasonably conceivable circumstances, an actual relation to the safeguarding of the public health. Cf. Stephenson v. Binford, 287 U. S. 251, 77 L. Ed. 288 (1932).

This conclusion makes unnecessary any consideration of the other point urged by the plaintiff.

The determination of the board is reversed and the matter remanded to the board, with directions to grant the plaintiff’s application.


source: Caselaw Access Project

author: William J. Beennan, Je., J. A. D.

license: Public Domain

text:
    JOSEPH PALMERI AND JOHN LOMBARDO, PLAINTIFFS-RESPONDENTS, v. CHARLES ALBANESE, VIOLA ALBANESE, AND JOSEPH ALBANESE, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued February 26, 1951 —
    Decided March 9, 1951.

      Before Judges McGeei-ian, Jayne and Wm. J. Beennan, Je.

      Mr. Jaclc Binzler argued the cause for plaintiffs-respondents (Messrs. Feder & Binzler, attorneys).

      Mr. Aaron Heller argued the cause for defendants-appellants (Messrs. Heller & Lailcs, attorneys).
   The opinion of the court was delivered by

William J. Beennan, Je., J. A. D.

A judgment for $1,245 was entered June 30, 1950, against defendants in the Law Division, Bergen County. Defendants appeal that judgment to the extent only of $1,000 thereof.

Defendant, Charles Albanese, a plumbing contractor, contracted with plaintiffs under two agreements to furnish, for a consideration of $8,300, labor, and material in the installation of plumbing, gas heating and gas piping in three buildings in Clifton.

On June 20, 1947, the parties entered into a third agreement, and defendants, Viola and Joseph Albanese, signed a written guarantee of Charles Albanese’s performance thereof. The agreement recites that Charles Albanese “is unable to complete said jobs by reason of the fact that the cost of so doing is in excess of the agreed price by the sum of Two Thousand ($2,000) Dollars,” that plaintiffs had “paid on account of the agreed price the sum of Seven Thousand Three Hundred Fifty. ($7,350) Dollars leaving a balance of Nine Hundred Fifty ($950) Dollars,” that plaintiffs were paying said balance “plus an additional One Thousand ($1,000) Dollars as a contribution to the increased cost of the said work,” that Charles Albanese accepted the total sum of $1,950 “in full payment for all material and work done and to bring the jobs to full completion/’ and further, “It is understood and agreed between the parties hereto that the additional sum of One Thousand ($1,000) Dollars is being paid * * * upon the express agreement that (Charles Albanese) will complete the said jobs within thirty (30) days and that in the event of failure to do so * * * (he) shall be liable for the return of the said One Thousand ($1,000) Dollars * * (Italics supplied.)

Plaintiffs’ complaint alleged the failure of defendant Charles Albanese to complete the work within 30 days o£ June 20, 1947, and also alleged that some of the work had not been properly performed, and sought a judgment for $1,000 plus damages for uncompleted and for defective work. At the pretrial conference the parties made an agreement, incorporaled in the pretrial order, to submit to arbitration, pursuant to E. 8. 2 :40-l et seq., the issue whether any work had been defectively performed and also the question “whether or not the work was performed according to the contract” of June 20, 1947, “within 30 days from June 25 (sic) 1947, except that the defendants admit that they did not, within the 30-day period or at any time, supply radiator grills.”

The arbitrators found, and reported, that some work had been defectively done and allowed plaintiffs damages of $30; and further found that the work had not been fully completed, specifying the particulars, and made an award that the uncompleted work should be done within 30 days from the confirmation of the award by the court or, in the alternative, that defendants should pay the value thereof, fixed by the arbitrator at $215. The award and report were confirmed and, defendants not having availed themselves of the option to complete the work, judgment for $245 plus the $1,000 required by the contract of June 20, 1947, to be returned was entered against defendants.

Defendants’ first point is that the contract of June 20, 1947, is a contract for labor and materials which was substantially performed and that Charles Albanese was liable only to the extent of $245, the total of the $30 awarded for defective work plus the value fixed by the arbitrators of the work not performed. Globe Home Improvement Co. v. Michnisky, 120 N. J. L. 233 (Sup. Ct. 1938). The principle of that case is not applicable here. The contractor’s legal obligation to supply labor and material was not created by the June 20, 1947, agreement; that agreement obligated Charles Albanese to do no more or different work than he was already legally bound to do under the earlier contracts. There was no intention to abandon the earlier agreements and to substitute the June 20, 1947, contract as a new agreement covering the work to be performed. Finocchiaro v. D’Amico, 8 N. J. Super. 29 (App. Div. 1950); Restatement, Contracts, vol. 1, sec. 76, illustration 8 (1932); Williston, Contracts, vol. 1, secs. 130 and 130A (Rev. ed. 1936). The parties’ intent in making the June 20, 1947, agreement was plainly to agree upon a time for full completion of the work the contractor was to perform not by force of that agreement but under the earlier • contracts. Nothing in the record discloses what, if any, provisions of tlie earlier contracts governed the time of completion.

The rule applicable to contracts generally is that an absolute completion of performance must be proved before the right to payment can be enforced. An exception is made in the ease of building contracts and contracts for labor and material which go to form ah addition affixed to lands, as to which contracts recovery is allowed upon proof of a substantial performance after a fair allowance to the owner to make good the defects. The basis of that modification of the general rule is that “Where the labor and materials of the contractor go to form an addition affixed to lands, the right of the owner of the lands to refuse to accept such work cannot well be exercised without doing injustice to one party or the other.” Dyer v. Lintz, 76 N. J. L. 204 (Sup. Ct. 1908).

The general rule, not the exception, however, applies to the June 20, 1947, agreement which touches the time of performance of the work agreed to be done under the original contracts. In the circumstances, if the $1,000 had not been paid, but had been merely promised, for bringing the jobs to lull completion within 30 days, the contractor could not have recovered that sum from plaintiffs upon less than complete performance of the work. So, a showing merely of substantial performance does not entitle Charles Albanese to retain file payment in the face of his express promise to “return” the sum upon his failure within 30 days “to bring the jobs to full completion.”

Defendants’ second and last point is that the parties agreed upon the $1,000 as the measure .of damages to be paid for the contractor’s breach, and that that sum is disproportionate to the actual loss as found by the arbitrators and is thus a penalty and not recoverable. There is no penalty involved here. There is a simple contract under which the contractor was obliged to return the one thousand dollars entrusted to him in the event of his failure to perform the contract condition.

Affirmed.


author: Stanton, J. S. C.

text:
    MARGARET ANDES, PLAINTIFF, v. VICTOR BOYAJIAN, ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided March 15, 1951.

      Mr. Alfred M. Gozzi, attorney for the plaintiff.

      Mr. Edward Y. Ajamian, attorney for the defendants.
   Stanton, J. S. C.

Plaintiff commenced this action in the Law Division for the return of a deposit, made by her under a contract with defendants for the purchase of certain lands, and for the cost of -examining title, on the ground that defendants could not give a marketable title to her. Defendants counterclaimed for the specific performance of the contract and the action was then transferred to the Chancery Division.

Plaintiff questions the effectiveness of decrees entered in the former Court of Chancery in two separate suits concerning the premises in question. The first was a foreclosure suit in which a final decree was entered on April 3,1914. At the time of the commencement of that suit, title to the premises was in New Durham Building and Contracting Company, a corporation. Thrpughout that suit said corporation was incorrectly styled and referred to as New Durham Building and Construction Company. Because of this, plaintiff contends that the equity of redemption of the corporation was not foreclosed. Service of process in the cause was acknowledged on behalf of the corporation by Max A. Sturm, a solicitor of the Court of Chancery. It is noted that Mr. Sturm was himself a party defendant in the cause and he acknowledged service in his own behalf and in behalf of two other defendants. It is noted also that Mr. Sturm had conveyed the premises in question to the said corporation and had taken back from it three purchase money mortgages. This recital alone is persuasive that the New Durham Building and Contracting Company was a party defendant in the cause and that it'was properly before the court upon acknowledgment of service by a solicitor of the court. As a matter of fact, it would appear that there is no question at all as to the identity of the defendant in question. There is a mere error in its name, of which it could hayo complained but did not. In Webster-Art and Strength Building and Loan Association v. Armondo, 128 N. J. Eq. 219 (Ch. 1940), at page 220, it was said:

“Generally, a party to an action, although misnamed, will be concluded by the judgment or decree the same as if he were described by his true name. Advantage of the misnomer must be taken as soon as discovered by plea in abatement or motion, whereupon the true name may be inserted by amendment. (Citing eases.) If no objection to the misnomer be made before judgment, it is waived, and proof may be received outside the record to show who is the actual party concluded.”

In McCahill v. Equitable Life Assurance Society, 26 N. J. Eq. 531 (E. & A. 1875), a collateral attack upon a foreclosure decree of the Court of Chancery was under discussion, and Chief Justice Beasley said at page 538 :

“The legal rule, then, is this: that the decision of a domestic court of general jurisdiction acting within the scope of its powers, has inherent in it such conclusive force that it can not be challenged collaterally, and that such decision definitively binds all parties embraced in it, unless on objection made to such court itself, or in a direct course of appellate procedure. The result of this doctrine obviously is, that the present petitioners have nothing to apprehend from any supposed error in the publication of the notice to the absent defendant, as such absent defendant cannot set up such defect against the title offered under this decree.
“I have preferred to put the question here raised upon this broad ground, as it seemed to me that it should be understood that titles by force of foreclosure decrees are not open to objections of the general character of the one here interposed. But if this principle had not, as I think, ruled the ease, I should have arrived at the same end, so far as the decision of the question now. before the court is concerned, as I entirely agree with the Chancellor in his view that the notice to the non-resident was, in substance and effect, published in the manner directed.”

It is concluded, therefore, that the holder of the fee was not only properly before the court as a party defendant notwithstanding the incorrect statement of its name, but plaintiff is precluded from collaterally attacking the conclusiveness of the said decree.

The other suit was for the foreclosure of tax lien certificates by a municipality against Imp Manufacturing Company, Inc., a corporation of this State. Einal decree was entered therein in favor of the municipality on December 12, 1938. Plaintiff questions the effectiveness of this decree on the ground that the defendant therein was not properly before the court and on the further ground that the State of New Jersey should have been a party to the action for the reason that it held a lien on the premises in question for unpaid corporation franchise taxes of the said, defendant. The suit was instituted on June 6, 1938. Plaintiff questions the form of the subpoena which was issued in the matter and which was served upon the defendant by leaving a copy of it with the Secretary of State of New Jersey. She also questions the failure to file an affidavit of inquiry for the officers and registered agent of the corporate as a prerequisite to the service of process upon the Secretary of State pursuant to B. 8. 14:13-14. The subpoena, entitled in the cause, is proper in all respects except that it is addressed to one Turner as registered agent of the defendant, and as stated above was duly served by the sheriff upon the Secretary of State pursuant to the statute. This imperfection in the subpoena and the failure to file the affidavit as prescribed by the rule of the Court of Chancery are matters which may not be collaterally attacked by plaintiff in this proceeding. The decree of the Court of Chancery is conclusive upon these matters. McCahill v. Equitable Life Assurance Society, supra; Shultz v. Sanders, 38 N. J. Eq. 154; affirmed, Eisberg v. Shultz, 38 N. J. Eq. 293 (E. & A. 1884); Wilkes v. Brennan, 139 N. J. Eq. 445 (Ch. 1947). In the latter case, Vice-Chancellor Jayne, at page 447 said:

“Final decrees of this court of general equitable jurisdiction, unreversed, relating especially to proceedings in rem within the scope of its inherent powers, must be and are accorded too much stability and conclusive force to be challenged collaterally. Such effectiveness is necessary in substantial justice and in the protection of derivative rights. For a stranger to the cause to infuse the final decrees of this court with some suspicion of their conclusive effectiveness would disastrously destroy their purpose and would inspire an uncertainty in the final result of legal proceedings which, as a pragmatical consequence, would render them unserviceable.”

The notice to redeem given by the municipality to Imp Manufacturing Company, Inc. pursuant to an order of the Court of Chancery was served upon the Secretary of State. This was not only effective service upon the delinquent corporation under B. 8. 14:13 — 14 but the final decree in the cause is conclusive on the question of its efficacy raised by the collateral attack of plaintiff herein.

With respect to the failure to join the State of New Jersey as a party in the last mentioned suit, it is claimed that this should have been done pursuant to B. 8. 54:49-l, which has its source in chapter 263 of the Laws of 1936, known as State Tax Uniform Procedure Act. The section in question provides that corporate franchise taxes from the time the same shall be due shall be a personal debt of the taxpayer to the State, and such debt shall be a lien on all the property of the debtor. The effective date of this act is July 1, 1936. The corporation franchise taxes that became due after July 1, 1936 were those for the year 193? and they became a charge and liability against the assets of a corporation as of January 1, 193?. /?.. 8. 54:13-5. It is contended by plaintiff that this act created a lien in favor of the State on the premises in question for franchise taxes which had accrued prior to the forfeiture of the corporation’s charter in 1926. An examination of the statute discloses that it is not explicitly retrospective. And it is well settled that a statute will not be construed as retrospective unless its language or object clearly so indicates. See Wiites v. Repko, 107 N. J. Eq. 132 (E. & A. 1930) and cases there cited.

It is concluded that the State of New Jersey at the time of the institution of the suit against the Imp Manufacturing Company had no lien on the premises in question for unpaid corporation franchise taxes; and that the equity of redemption of the defendant therein was effectively foreclosed.

The title being marketable, defendants are entitled to judgment for the specific performance of the contract.


author: McLean, J. S. C.

text:
    LEONORE ADA BELL BRUGUIER, PLAINTIFF, v. CHARLES ROY BRUGUIER, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided March 19, 1951.

      Mr. Edward Farry, Jr., attorney for plaintiff.

      Mr. Harry Wolf, attorney for defendant.
   McLean, J. S. C.

This matter is before me on the plaintiff’s motion on order to show cause why the weekly allowance heretofore made on the 6th day of August, 1948, “should not be increased to a sum commensurate with the expenditures necessary for the care, support and maintenance of the two minor children of the marriage,” and defendant’s motion to require the infant daughter, Yvonne Lenore Bruguier, to desist from using and assuming the name of Yvonne Williams, and for the further order making it possible for defendant to have visitation of his two infant children pursuant to the terms of the decree nisi heretofore entered in this cause.

Plaintiff’s order to show case was returnable on September 22, 1950 and has been continued from time to time pending negotiations between the parties. Defendant’s motion was dated February 6, 1951, returnable March 2, 1951, and came before me for argument March 9, 1951.

Meanwhile, pending these proceedings, the plaintiff on October 15, 1950 remarried and removed from Keyport with her two children to Carmel, New York, and defendant remarried December 31, 1950 and since that date has resided at 21 A Pioneer Homes, Elizabeth, New Jersey.

When the parties remarried, the situation so changed on both sides that the whole proceeding should have been discontinued, and they could now with propriety be summarily dismissed. However, inasmuch as the dismissal would result in only a renewal of the applications, in the interest of expedition it will be entertained and disposed of on the merits in the light of the changed circumstances as disclosed by the supplemental affidavits.

The decree nisi dated August G, 1948, provided that the defendant pay, the plaintiff the sum of $20 per week at the beginning of each week from and after the date of the order as and for the support and maintenance of herself and the infant children of the marriage in her custody. So much of the allowance so ordered to be paid for the benefit of the plaintiff terminated ipso facto with her remarriage. The obligation of the defendant to support his children continues and the allowance may be adjusted retroactively to the date of plaintiff’s remarriage. Roth v. Roth, 10 N. J. Super. 406.

The amount to be fixed will depend upon the needs of the two children and the ability of the father to provide for them under circumstances now-existing. The only evidence before me as to the needs of the children is contained in the affidavit of the plaintiff dated August 14, 1950, which was prior to her remarriage. The facts therein set out are not pertinent at this time, inasmuch as it is conceded that by reason of her remarriage plaintiff’s situation has materially improved, and with the generosity of her husband she is able to provide adequately for her children in her present home. The defendant by his remarriage has undertaken to contribute to the support of the three children of his present wife by a former marriage. His present wife is gainfully employed. Defendant’s income is $80 per week; his take home pay being about $140 every pay day. Kemarriage of the party and the obligations assumed are facts which the court may now take into consideration in fixing alimony. Padwee v. Padwee, 7 N. J. Super. 101. Parents are equally responsible for the support and maintenance of their children. Defendant does not complain about continuing to make the payment of $20 per week for the support of his children. There is no substantial change in the situation, except as to the benefits the children may receive from their mother’s fortunate marriage. ■ There would seem to be no need for an increase in the allowance, but neither should this be a reason for reducing the father’s responsibility, which continues. Bonanno v. Bonanno, 4 N. J. 268 at page 274. An order will be made providing for the discontinuance of any allowance to the plaintiff, but the payment of $20 per week to continue for the benefit of the children from the date of plaintiff’s marriage and until the further order of the court.

As to visitation, the obligation to support and the right of visitation are in no way connected. Here, the welfare of the children seems to have been best served in the custody of their mother, and will continue, nothwithstanding the removal to Carmel, New York; in fact, the change would seem greatly to their benefit. The mother explains the reasons for the removal as follows:

“My present husband, Rex Williams, and I have both been previously married and as a result of our present marriage we both were starting lives anew and as a result established our residence in Carmel, New York, where we were both total strangers, with the primary view of both sides establishing a new life. The daughter, Yvonne, is a sensitive child and it was her own suggestion that rather than face complications and explanations she voluntarily and on her own accord, upon our moving to Carmel, assumed the surname of Williams. Previous to moving from Keyport, New Jersey to Carmel, New York, the daughter, Yvonne, applied for her own transfer from Keyport High School to Carmel High School and on her own volition at the time she requested the transfer from the Key-port High School she requested that the surname Williams be inserted in her record. I wish to state definitely that I had nothing to do with this procedure and when informed by her as to what she had done, I inquired the reason why and she gave me the reason heretofore stated.” The reasons stated by plantiff are adequate to justify her removal to Carmel, New York. She is willing that their father should visit the children there; the place is not so far distant and is easy of access to the defendant, considering his ownership of automobile transportation. His right of. reasonable visitation will be continued at the home of the mother in Carmel, New York.

As to defendant s’s motion that his daughter desist from using and assuming the name Yvonne Williams, the motion must be denied. There is nothing in the common law prohibiting one from taking another name, if he so desires. In the absence of a statute to the contrary a person may ordinarily change his name at will without any legal proceedings simply by adopting another name. 38 Am. Jur., page 610. The ordinary rules of minority do not limit the right. Our statute provides a means for a judicial process to effect a desired change to provide a permanent record and, of course, a minor desiring to take advantage of that statute must appear by guardian or next friend. There are statutes calculated to protect the public against fraud and the use of an alias by criminals but they do not apply in this instance. In re Witsenhausen, 42 N. J. L. J. 183; State v. Librizzi, 188 Atl. 511.

The motion will be dismissed.


author: Dongiss, J. S. C.

text:
    HARRY DEMOSSE, PLAINTIFF, v. ESTHER SHIMMEL, DEFENDANT.
    Camden County Court
    Decided March 9, 1951.

      Mr. Edward 17. Eichmann, attorney for plaintiff.

      Mr. Irvin M. Lichtenstein, attorney for defendant.
   Dongiss, J. S. C.

The defendant moves to strike the complaint in this matter on the grounds that a 30-day statute of limitations bars plaintiff’s action and that the one-year statute of limitations bars recovery of all sums claimed prior to a year from the commencement of the action. '

The complaint alleges that plaintiff is a tenant of the premises in question. The rental was originally $60 per month. On March 15, 1950, the Office of the Housing Expediter of the United States issued an order setting a maximum rental of $42.50 per month, effective April 1, 1949. A copy of the order was sent to the landlord and tenant and provided, inter alia, that a refund be made to the tenant of all overcharges within 30 days from the date of the order. The defendant landlord failed to make the refund and plaintiff instituted this suit for treble damages on November 1, 1950.

The pertinent section of the Housing and Rent Act of 1947, as amended provides, § 205, 50 IJ. S. G. A. Appendix, § 1895, that suit to recover overcharges shall be brought within one year after the date of such violation and if the tenant does not institute his suit within 30 days from the violation, then the United States may institute the action. Defendant contends that this is a 30-day limitation upon the tenant’s right to sue. I do not conceive it to be so. The statute merely gives the tenant the exclusive right, to sue during the first 30 days, and gives the tenant and the United States an equal right to sue during the next 11 months.

Defendant next contends that at least so much of the complaint which demands judgment for overcharges prior to November 1, 1950, should be stricken because of the one-year limitation. He cites numerous cases to support his contention, among which are: Carmelly v. Hanson, 133 N. J. L. 180 (Sup. Ct. 1945); Mularky v. Lucey, 57 A. 2d 767 (Super. Ct. of Del. 1948); Kersting v. Hardgrove, 24 N. J. Misc. 243 (Cir. Ct. 1946); Schwartz v. Dell'Osso, 23 N. J. Misc. 151 (Cir. Ct. 1945); and Walsh v. Gurman, 132 Conn. 58, 42 A. 2d 362 (Sup. Ct. of Errors of Conn. 1945). These cases all stand for the proposition that a tenant may recover from the landlord only with respect to overcharges which occurred within one year of the institution of the action. However, in none of these cases was there a refund order -of the Office of the Housing Expediter. This situation, however, was passed upon by the Supreme Court of the United States in Woods v. Stone, 333 U. S. 472, 92 L. ed. 815 (1947). In that case, when the area rent director set the maximum rental on the property involved, he ordered a refund of amounts paid by the tenant and the order was made retroactive. Upon the landlord’s failure to comply with the order, the tenant instituted suit. The one-year statute of limitations was pleaded, and the court in dealing with this problem stated that the one-year statute of limitations began to run on the date that a duty to refund was breached. This date the court conceived to be the time stated in the order for a refund. This case and our present case are, therefore, distinguishable from the cases cited by the defendant.

The motion to strike the complaint is denied.


author: Stein, J. S. C.

text:
    FRANK A. TOTH, PLAINTIFF, v. FREDERIC BIGELOW AND NEW JERSEY ZINC COMPANY, A NEW JERSEY CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided February 5, 1951.

      Messrs. Milton, McNulty & Augelli (Mr. William Bannon appearing), attorneys for plaintiff.

      Messrs. Stryker, Tams & Horner (Mr. Josiah Stryker appearing), attorneys for defendant New Jersey Zinc Company.
   Stein, J. S. C.

Plaintiff on notice applies to the court for an order to inspect and make copies of some 90-odd “files,” maps, abstracts of title and opinions, books and other items in the possession of the defendants.

The suit is one to quiet title. On file is a stipulation between the parties entered into about June 1, 1950, which sets forth the chain of title so that the issue as to title in effect turns on two deeds in the chain of title, one made in 1905 and the other in 1923.

Plaint iff in his affidavit annexed to the notice says that he has a certain map in his possession and a copy of a memorandum to one Walter F. Evans entitled “Mineral Title to 29.15 acres ‘Forge Lot, Ogdensburg, New Jersey’”; that the map refers to 18 files and 5 maps and the memorandum refers to 12 oilier files and “maps under 0-10.”

Plaintiff is in the employ of the defendant. How he came into possession of the map and memorandum is not disclosed, and according to Mr. Evans, superintendent of the company, the plaintiff was not, in his position as an employee, in a position to obtain such map and memorandum, and that the defendant has been unable to locate in its files a map bearing the title or designation specified in Mr. Toth’s affidavit; that a memorandum dated October 8, 1940, with respect to the 29.15-acre Forge Lot, Ogdensburg, New J"ersey, was prepared for the company by a former employee of the company but that no one had any authority to remove a copy of this memorandum from the company’s files or to make a copy thereof for his own use or to dispose of it to someone else. No other memorandum dated October 8, 1940, dealing with the 29.15-acre Forge Lot has been located. How the map came into plaintiff’s possession he does not say.

Plaintiff asserts in his affidavit that he has been advised by counsel that the information which appears on said map and memorandum is relevant and material to the issue in this suit and that he has also been advised that the information which appears on tire other maps and memoranda in the possession of the defendant “will amplify, elaborate and fully explain the information contained on the map in my possession and all of said information will be relevant and material to the issues involved in this suit.”

The notice reads: “Each of the foregoing documents constitutes or contains evidence relating to the matters and issues involved in this action as is more fully shown in the affidavit of Frank A. Toth annexed hereto * *

There is nothing before me to show in what respect the map and “files” are material to the issue. The application is based upon the advice of counsel. Counsel neither by affidavit nor otherwise reveals facts upon which his conclusion is based.

Buie 3:34 — l provides that a party showing good cause therefor may upon notice apply to the court for an order to produce and permit the moving party to inspect and copy or photograph any designated books, papers, documents, or tangible things, not privileged, which constitute or contain evidence relating to matters pertinent to the cause and which are permitted by Buie 3 :26-2.

Under the Rule it is incumbent upon the party seeking the order to show good cause, and the books, papers and documents and tangible things must be “designated.” I am of opinion that the designation of “files” in the notice now before me is not such designation as is required under the rules. Nor does the notice for inspection of the enumerated files show that such files, books of account, etc., contain evidence relevant to the subject matter involved in the instant case. Relevancy alone is not the only requirement to be shown. There must also be present good cause. Conclusions of the plaintiff or counsel can scarcely be said to be good cause. The plaintiff is not entitled to the inspection which he seeks as a matter of right. The notice does not disclose what is contained in the enumerated files which would be relevant evidence and the relevancy mentioned in the rules concerns itself with the content of the documents, while good cause has to do with the reasons for calling upon the defendant for the production of relevant material. Certain it is that a notice demanding the inspection and production of books, papers and documents must specify with some reasonable degree of certainty the particular, documents and papers sought to have produced for inspection and copy, together with some proof of their materiality to the issue.

The motion is denied.


author: Stetn, J. S. C.

text:
    IN THE MATTER OF AN AGREEMENT DATED JULY 17, 1942, BETWEEN GEORGE LAUBENSTEIN AND OTHERS RELATING TO CERTAIN FORMULAE AND PROCESSES.
    Superior Court of New Jersey Chancery Division
    Decided January 30, 1951.

      Messrs. Milton M. and Adrian M. Unger (Mr. Milton M. Unger appearing), attorneys for plaintiffs.

      Messrs. Herrigel, Bolán & Vieser (Mr. Fred Herrigel, Jr., appearing), attorneys for defendants Katharine H. Doster, Ann H. Porter and Janet B. Herrigel.

      Mr. Emanuel P. Scheck, attorney for defendant Lena Scheck and pro se.

   Stetn, J. S. C.

Plaintiffs Walter 0. Garrigan and George Klink pray declaratory judgment respecting the rights and liabilities of the persons interested in an agreement dated' July 17, 1942, between George Laubenstein and others relating to certain formulae and processes.

The parties to the agreement were formerly stockholders in the Finishing Service, Inc., a corporation now dissolved which was the owner of certain formulae and processes for the-plating of metals. Upon dissolution of the corporation ownership of the formulae became vested in the parties thereto..

On July 17, 1942, George Laubenstein, George Klink and Allen B. Underhill individually and as agents for the remaining owners of the formulae entered into a written agreement with J. E. Mergott Oo., in and by which the J. E. Mergott Co. was granted the right to use the formulae and processes in their business and in return agreed to pay for the use thereof a sum based on the quantities of materials used in the preparation and application of the formulae every month. The minimum payment was to be $1,200 per month. The money was-to be deposited with the National State Bank of Newark, New Jersey, and by it disbursed to the persons and in the proportions as set forth in the agreement.

The agreement further provided that the parties of the first part thereto (Laubenstein, et al.) were to purchase at Mergott Company’s expense all material inquired for making the solutions in accordance with the formulae; that they were to make the solutions and service the same to fulfill the requirements of the business of the J. E. Mergott Co. and to comply fully with the terms of the agreement. Although the agreement is silent as to which of the parties were to perform the enumerated services, it appears that Laubenstein and Klink, the inventors of the formulae, performed these services during the existence of the agreement.

On June 15, 1944, by agreement of the parties, Walter C. Garrigan was substituted for Allen P>. Underhill who had died.

In January, 1950, the J. E. Mergott Co. sold its frame business to the Fedders-Quigan Corporation. On January 4, 1950, Laubenstein, Klink and Garrigan in their own behalf and purportedly in behalf of the remaining owners, entered into an agreement with Fedders-Quigan Corporation granting to it the right to use the formulae and processes upon payment to them of the sum of $1,200 per month. The agreement also provided for instructing employees of Fedders-Quigan Corporation in the compounding of the formulae, the use thereof and the servicing of the same, which services were rendered by Laubenstein and Klink although the agreement was likewise silent as to which of the parties was to perform them. The moneys due and to become due under this agreement were to be paid to Laubenstein, Klink and Garrigan.

On May 25, 1950, Garrigan and Klink notified all of the owners of the formulae by letter of the sale by J. E. Mergott Co. to Fedders-Quigan Corporation of its handbag frame business and of the new agreement with Fedders-Quigan Corporation. The letter also stated that Laubenstein and Klink under the new agreement were required to supervise the purchase of materials, prepare the solution and supervise their use; that Laubenstein and Klink requested payment of $600 per month for such services required to be rendered by them under the agreement; that only one-half of the amount received from Fedders-Quigan Corporation would therefore he distributed pending the approval of the remaining owners of the payment requested by them. All of the owners excepting the counterclaimants herein approved. The counterclaimants threaten suit.

In addition to a declaratory judgment, the plaintiffs seek instructions of the court as to the disposition of the claims of Laubenstein and Klink for their services and to fix the reasonable value thereof. Three of the co-owners have filed a counterclaim for an accounting.

The authorization to Laubenstein, Klink and Underhill to act as agents for the remaining owner in the execution of the agreement of July 17, 1942, provides as follows:

“Newark, New Jersey.
July 8th, 1942.
Messrs. George Laubenstein,
George Klink
Allen B. Underbill
Gentlemen:
This is to authorize you to act as our agents, and on our behalf, in executing and delivering the annexed agreement with The J. E. Mergott Co., and also in making the arrangement with the National State Bank which is contained in the letter attached hereto; or with any other bank of your selection.
Very truly yours,
(Signed)
Frieda Klink
Ann H. Underhill
Katherine Underhill
Janet B. Underhill
Virginia Laubenstein
Walter C. Garrigan
Emanuel Scheck
Helen T. Fisher
Lena It. Scheck”

The authorization is clear and unambiguous. It authorizes the three named to act as agents in the execution of the agreement of July 17, 1942, and to arrange for the distribution of the moneys to be paid thereunder, and nothing more. The letter of July 20, 1942, to the National State Bank contained instruction as to the manner of the distribution of the fund, the persons to whom it was to be paid and the percentage each was to receive. There appears to be no dispute about the agreement of July 17, 1942, or the disposition of the moneys received by the National State Bank.

While the counterclaimants allege that they had no notice of the new agreement; that they did not consent to its execution and that Laubenstein, Blink and Garrigan had no authority to execute it in their behalf, yet they do not ask that it be voided. Their main contention is that Laubenstein and Blink are not entitled to compensation for their services and that all the moneys should be distributed in accordance with their interest in the ownership of the formulae.

The interest of the several parties in the ownership of the formulae is set forth in the 1942 agreement. No mention is made of such interests in the 1950 agreement. There is nothing before me to indicate any change therein so that such interests remain as stated in said 1942 agreement.

Neither of the agreements provide for compensation to Laubenstein and Blink for their services. It does not appear that the matter was ever discussed by the parties either at the time of the original agreement or at any time thereafter. Plaintiffs now ask the court to fix their compensation. They predicate their claim upon the theory that they are trustees for the owners of the formulae. They invoke the doctrine that trustees are entitled to compensation for their services although there is no provision for such compensation in the trust instrument. 2 Scott on Trusts, p. 1383, §242 (1931 ed.). But plaintiffs misconceive their relationship to their co-owners. They are not trustees for them. Neither of the agreements are trust instruments and they were not intended to be. They are simple contracts dealing with the sale of a commodity to a third party for a consideration. In'both, plaintiffs and Laubenstein obligated themselves to the third party to perform the services for which ihev nowr seek compensation. Under the circumstances this court is without authority to determine either that they are entitled to compensation or to fix compensation for them. These are strictly matters to be determined by the parties themselves. While it is true, as suggested, that they may refuse to perform the services with the result that they and their co-owners will receive nothing from the use of the formulae, yet if some of the parties desire to “cut their nose to spite their face,” that is their concern and the court is powerless to prevent it.

By the terms of the agreement of January 4, 1950, the moneys due thereunder are to be paid to Laubenstein, Klink and Garrigan. Even though it be conceded that they had authority to enter into this agreement yet they exceeded their authority by receiving such moneys. The original authorization of July 8, 1942, directed them to make arrangement with the National State Bank or some other bank for the collection and distribution of the moneys for which the bank was to be paid the sum of $15 per month. They will be allowed this amount.

The counterclaim seeks an accounting of the moneys paid under the J. E. Mergott Co. contract and the Fedders-Quigan Corporation contract. It appears that the moneys due under J. E. Mergott Co. contract were paid to the National State Bank and disbursed by it. The National State Bank is not a party hereto, hence in these proceedings there can be no accounting of the moneys paid under the J. E. Mergott Co. contract. A different situation prevails as to the Fedders-Quigan Corporation contract. Under that contract the moneys were paid to Laubenstein, Klink and Garrigan for which they must account.


author: Hasteman, J. S. C.

text:
    BURLINGTON COUNTY TRUST COMPANY, A CORPORATION, TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF ANNA C. BIEHLER, DECEASED, PLAINTIFF, v. NEW JERSEY SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS CAMDEN COUNTY BRANCH, CAMDEN COUNTY BRANCH NEW JERSEY SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, ABNER G. BUDELMAN, PRESIDENT OF THE NEW JERSEY SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS. AND THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court o£ New Jersey Chancery Division
    Decided March 7, 1951.

      Mr. John P. Lippincott, attorney for plaintiff.

      Mr. Joseph Tornaselli, attorney for defendants Camden Comity Braneli New Jersey Society tor the Prevention of Cruelty to -Animals and Abner G-. Budelman, President of the New Jersey Society for the Prevention ot Cruelty to Animals, (Messrs. Malandra «P Tornaselli, attorneys).
   Hasteman, J. S. C.

The facts in connection herewith are stipulated as follows:

“It is hereby stipulated by and between John P. Dippincott, Attorney l'or the Plaintiff, and Malandra & Tornaselli, Joseph Tomaselli appearing, Attorneys for the Defendants, Camden County Branch New Jersey Society for the Prevention of Cruelty to Animals and Abner G. Budelman, President of the New Jersey Society for the Prevention of Cruelty to Animals, that the above cause of action be submit fed to the Court for determination upon the following agreed statements of facts:
1. On June 22, 1947, Anna C. Bidder died, having first made, executed and published her last will and testament in writing, bearing date January 29, 1946, and thereafter duly proved before the Surrogate of Burlington County at Mount Holly, New Jersey, on July 3, 1947, and recorded in said Surrogate’s office in Book 88 of Wills, page 193. A true copy of said last will and testament is attached hereto and intended to be incorporated herein.
By Paragraph Second (h), testatrix provided as follows:
‘Second: (h) 1 direct my said Trustee that after the payment of the above annual bequests from the income of my estate after expenses, commissions and proctor fees, shall be equally divided and paid one-half to the Camden County District Society for the Prevention of Cruelty to Animals to be applied to the general purposes of said Society and request that so far as the Society possibly can that they take care of any animals from Burlington County.’
2. Plaintiff, Burlington County Trust Company, qualified as trustee under said last will and testament and entered upon its duties as said trustee, and has in its possession and control as trustee, approximately the sum of $79,905.02 representing the net corpus of said trust estate. Plaintiff also has in its hands, the income directed to be paid according to Paragraph Second (h) of the last will and testament of testatrix, Anna C. Biehler.
3. On June 22, 1947, the date of testatrix’ death, there existed an organization known as ‘New Jersey Society for the Prevention ol‘ Cruelty to Animals Camden Branch,’ (one of the defendants in this cause) which organization was created by a certificate of authority issued June 4, 1946, by the president of the New Jersey Society for the Prevention of Cruelty to Animals in accordance with the authority conferred by ‘An Act to Incorporate the New Jersey Society for the Prevention of Cruelty to Animals,’ approved March 21, 1873, and the various amendments and supplements thereto. Thereafter, the organization known as ‘New Jersey Society for the Prevention of Cruelty .to Animals Camden County Branch’ was incorporated in accordance with the provisions of the aforesaid statute by a certificate of incorporation dated June 25, 1946, and recorded on that date in the office of the Clerk of Camden County in Book 81 of Corporations, page 274. At the date of testatrix’ death, New Jersey Society for the Prevention of Cruelty to Animals Camden County Branch was the only authorized organization for the prevention of cruelty to animals existing and functioning in Camden County.
4. On July 30, 1948, defendant Abner G-. Budelman, President of the New Jersey Society for the Prevention of Cruelty to Animals directed a letter to Edward C. Gardner, President The New Jersey S. P. C. A., Camden County Branch, which letter was received by the said Edward C. Gardner as president and on behalf of the defendant, New Jersey Society for the Prevention of Cruelty to Animals Camden County Branch, and reads as follows:
‘The New Jersey Society for the
‘Prevention of Cruelty to Animals
‘102 North Fourth Street, Newark 7, N. J.
■ ‘Mr. Edward C. Gardner, President.
The New Jersey S. P. C. A., Camden County Branch, Kunnemede, N. J.
Dear Mr. Gardner:
‘You are hereby advised that the current Charter of The New Jersey Society for the Prevention of Cruelty to Animals, Camden County Branch, is revoked for cause, pursuant to Section 4:22, Article 5, State Laws of New Jersey.
‘Kindly deliver the Charter, all papers, records and books to this office that an audit may be made.
‘Very truly yours,
‘The New Jersey S. P. C. A.
‘Abner G. Budelman, President.’
Thereafter, on September 14, 1948, defendant, Abner G. Budelman, as president of the New Jersey Society for the Prevention of Cruelty to Animals, issued and delivered a certificate of authority to the persons named therein, of which Kathryn G. Miller is styled as President, Joseph Tomaselli, Vice President, Elsie C. Robertson, Secretary, and Raymond Crawford, Treasurer, conferring upon said officers and other persons styled as directors, authority to organize a branch society in Camden County for the purpose of enforcement of all laws then enacted or thereafter to be enacted for the protection of dumb animals. In pursuance of said authority, a society was organized and became incorporated under the name of Camden County Branch New Jersey Society for the Prevention of Cruelty to Animals, by a certificate of incorporation dated September 20, 1948, and recorded in the office of the Clerk of Camden County in Book 85 of Corporations, page 257; and this society is one of the defendants in this cause.”

Eor some years prior to June 4, 1946, there had existed an association known as the Camden County District New Jersey Society for the Prevention of Cruelty to Animals (hereafter referred to as District Society), which association dissolved and was succeeded by the New Jersey Society for the Prevention of Cruelty to Animals Camden County Branch (hereafter referred to as Camden Branch 1). A large portion of the membership of District Society became members of Camden Branch 1 when the former ceased to exist.

Subsequent to July 30, 1948, Camden Branch 1 “ceased to function, in conducting any meetings or doing any work for animals in Camden County,” and was succeeded by Camden County Branch New Jersey Society for the Prevention of Cruelty to Animals (hereafter referred to as Camden Branch 2). A large portion of the membership of Camden Branch 1 became members of Camden Branch 2 when the former ceased to exist. A number of officers of the three associations became officers successively as each new association came into being, — as an example, Mrs. Kathryn Miller was a director of District Society, treasurer of Camden Branch 1 and president of Camden Branch 2. To all intents and purposes, Camden Branch 2 is the District Society. One association went out of existence with the avowed purpose of creating the successor in the order here set forth.

Notice of the legacy here involved was mailed to District Society, which was not then in existence, which notice was received by Camden Branch 1. With the knowledge thereof, they ceased to function and were succeeded by Camden Branch 2, which the members considered identical with the two preceding associations, except for the change in name. No request or demand has been made by any of said organizations except Camden Branch 3.

There is now only one organization functioning in Camden County for the prevention of cruelty to animals, i. e., Camden Comity Branch New Jersey Society for the Prevention of Cruelty to Animals. .

The questions involved are as follows:

1. What person, persons, corporation or unincorporated association did testatrix intend to receive the fund bequeathed under Paragraph Second, sub-section (h) of her last will and testament ?

2. Does the bequest under Paragraph Second, sub-section (h) of testatrix5 last will and testament violate the rule against perpetuities ?

3. Was the intended recipient of the fund in existence at the date of the death of said testatrix, and if so, is said recipient still in existence'and capable of receiving said fund?

4. If said intended recipient is not in existence, then should this court exercise the doctrine of cy pres and adjudge the fund to be paid to the defendant, Camden County Branch New Jersey Society for the Prevention of Cruelty to Animals?

The most important question involved is whether this provision is for a charitable purpose. The answer to the question is that it was for a charitable purpose. McCran v. Kay, 93 N. J. Eq. 352 (Ch. 1921); Pitney v. Bugbee, 98 N. J. L. 116 (Sup. Ct. 1922). The will created a trust not for charitable purposes generally, but for the benefit of a particular charity, i. e., the prevention of cruelty to animals.

In view of the above holding that this is a charitable trust, there is no violation of the rule against perpetuities. “A charitable trust is not invalid because it is to continue for an indefinite time whore the trust fund vests immediately.55 Restatement of the Law, Trusts, sec. 365; Young Men’s Christian Assn. v. Appleby, 97 N. J. Eq. 95 (Ch. 1924), 127 A. 25, affirmed, 98 N. J. Eq. 704 (E. & A. 1925), 130 A. 921; Conway v. Third National Bank & Trust Co. of Camden, 118 N. J. Eq. 61 (Ch. 1935), modified 119 N. J. Eq. 575 (E. & A. 1935).

There cannot be anjr doubt that testatrix did not intend that the “New Jersey Society for the Prevention of Cruelty to Animals Camden County Branch55 should be the specific cestui que trust under Paragraph Second, sub-section (h) of her will. This “Society” was not even in existence at the time of the execution of her will. She did, however, patently have in mind some organization with similar avowed purpose's, a number of which had from time to time existed in Camden County.

The facts concerning the status of Camden Branch 1 is analogous to the situation existing in Morristown Trust Co. v. Morristown, 82 N. J. Eq. 521 (Ch. 1913), where the court said:

“In Brown v. Condit, 70 N. J. Eq. (4 Robb.) 440, Vice-Chancellor Stevenson dealt with bequests to legatees who were not in existence either at the date of the will or at the date of the testator’s death, and held that in either of those two cases the legacy, even though charitable, would lapse, and the amount thereof would fall into the residue. In the case at bar, the legatee did not go out of existence until about eight months after the testator’s death; the members then having- full knowledge of the bequest, voluntarily dissolved, although it might possibly have continued its existence and in some way have taken advantage of (he bequest. This action of the legal ee seems to have the effect of a rejection of the legacy, and, if so, is the fund to be administered cy pres, or does it fall into the residue?”

Camden Branch 1 is, to all intents and purposes, incapable of administering and accomplishing testatrix’ desired charitable purpose.

This court will not permit a charitable trust to fail for lack of an existing competent trustee to administer it. Since the Camden County Branch New Jersey Society for the Prevention of Cruelty to Animals is the only organization in Camden County qualified to execute the purposes expressed in the will sub judice, the cy pres doctrine will be invoked and the trustee directed to treat it as the beneficiary as if so named in the will. Rowe v. Davis, 138 N. J. Eq. 122 (Ch. 1946) ; MacKenzie v. Trustees of Presbytery of Jersey City, 67 N. J. Eq. 652 (E. & A. 1904]; Restatement of the Law, Trusts, Sec. 399, ;j., k.; Nichols v. Newark Hospital, 71 N. J. Eq. 130 (Ch. 1906) ; Conway v. Third National Bank & Trust Co. of Camden, 118 N. J. Eq. 61 (Ch. 1935), modified 119 N. J. Eq. 575 (E. & A. 1935).

Judgment will be; entered accordingly.


author: IIaxemak-, J. S. C.

text:
    RITA JORDAN, CHARLES W. JORDAN, HER HUSBAND, AND VINCENT PONTANI, PLAINTIFFS, v. ADELAIDE MOHAN, ALSO KNOWN AS ADELAIDE PONTANI, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided March 5, 1951.

      Mr. II. Ilurlburt Tomlin, attorney for plaintiffs Eita Jordan and Charles W. Jordan (Messrs. Orlando, Devine & Tomlin, attorneys).

      Mr. Albert B. Melnik, attorney for plaintiff Vincent Pontani.

      Mr. Barney B. Brown, attorney for the defendant.
   IIaxemak-, J. S. C.

This is a suit seeking the partition of certain lands situated in the Township of Berlin, Camden County, New Jersey.

The plaintiffs, Eita Jordan and Vincent Pontani, are the children of the late Samueh Pontani, who died intestate on November 3, 1948. Charles W. Jordan is the husband of Eita Jordan.

The premises here in question were conveyed to Samuel Pontani and Adelaide Pontani, husband and wife, by deed dated April 1, 1943.

The sole question involved is whether Adelaide (Mohan) Pontani was the wife of Samuel Pontani on the date of the above referred to deed.

The defendant contends that she and Samuel Pontani entered into a common-law marriage on June 30, 1940. Common-law marriages are valid in Pennsylvania, where this marriage was allegedly contracted. It is admitted that both Adelaide Mohan and Samuel P.ontani were residents of Pennsylvania on June 30, 1940. If a valid marriage was undertaken in the state of the parties’ residence, the conveyance succeeded in vesting an estate by the entirety in them. If there was no such valid marriage, then the estate of Samuel and Adelaide was a tenancy in common and the plaintiffs must succeed in this suit. Hubatka, v. Meyerhofer, 79 N. J. L. 264 (Sup. Ct. 1910), reversed oar other grounds, 81 N. J. L. 410 (E. & A. 1910); Mastbaum v. Mastbaum, 126 N. J. Eq. 366 (Ch. 1939).

In Pierce v. Pierce, 49 A. 2d 346 (Pa. Sup. 1946), the court said at page 348:

“Where a common law marriage is asserted, any presumption which might otherwise be indulged in, becomes immaterial when the one asserting the validity of the relationship relies upon a putative contract which is legally insufficient to establish the fact of marriage. See MeDevitt’s Estate, 280 Pa. 50, 52, 124 A. 294, 295; In re Bisbing’s Estate, 266 Pa. 529, 531, 109 A. 670, 671. In re Murdock’s Estate, 92 Pa. Super. Ct. 275, 277, the court said : <* # * sjje herself proves that no valid marriage contract was actually entered into between them, evidence as to cohabitation and reputation goes for nothing * *

See also Commonwealth v. Stump, 53 Pa. 132 (Pa. Sup. 1866); Richard v. Brehm, 73 Pa. 140 (Pa. Sup. 1873).

The words required to create a common-law marriage must be used in praesenii and not in futuro. Pierce v. Pierce, supra; Baker v. Mitchell, 17 A. 2d 738; (Pa. Sup. Ct. 1941); In re Murdock’s Estate, 92 Pa. Sup. Ct. 275 (1928).

Before considering the testimony relating to cohabitation and reputation, the evidence of the contract itself must be assayed. The sole testimony came from the lips of the defeaadant. She testified that on June 30, 1940, she and Samuel' Pontani were married in her apartment at 1311 Erie Street, Philadelphia, 'Pennsylvania. She testified on two occasions, first on November 9, 1950, and second on November 28, 1950.

On the earlier of these dates she testified, after both counsel aaad the court had eaicountered great difficulty iar extracting from her the exact words used, that Samuel Pontani said the following: “Will you be my wife?” and she replied, “Will you bo my husband?” That they then kissed and nothing more was said. She was accorded every opportunity and indulgence to recall the exact formula.

On the latter of these dates she testified with far greater certainty and recollection and amplified her former statement by adding that Samuel Pontani, after what is recounted above, placed a ring on her finger and then said, “Now we are man and wife” and she said “Yes.”

The defendant testified that she and Samuel Pontani had planned for some three weeks prior to June 30, 1940, to get married on that date. Neither his two children by a prior marriage nor her son by a prior marriage asked by whom the marriage was to be performed, nor whether they could attend the ceremony, and this in spite of the fact that her son was then some 20 or 21 years of age, engaged to be married, and he and his fiance were to meet Adelaide and Samuel later the same day in Atlantic City. The son and his fiance, and the mother and her new husband drove to Atlantic City in separate cars and at different hours, even though they would pass Williamstown, where the marriage was purportedly to be performed. As closely knit as these parties then were, this seems a most unusual and unnatural state of affairs, if true.

In addition, the excuse given for withholding from the three offspring the story of the common-law marriage lacks corroboration, as does the lack of reason or excuse for the failure to obtain a marriage license.

Finally, the testimony of the jeweller who allegedly sold the wedding ring is most impressive. Ho testified that he never sold such a ring to defendant and Samuel Pontani, or either of them. This brands that portion of defendant’s testimony a complete falsehood. Not only does this cast doubt upon the question of the ring but it as well casts doubt upon the entire alleged ceremony.

In In re Murdock's Estate, 92 Pa. Super. Ct. 278 (1928), the court said:

“The law of Pennsylvania recognized common law marriages. But they are a fruitful ■ source of perjury and fraud, and in consequence, they are to be tolerated, not encouraged; the professed 'contract should be examined with great scrutiny, and it should plainly appear that there was an actual agreement entered into, then and there, to.form the legal relation of husband and wife.”

Scrutinizing the testimony, as we must, it does not appear from defendant’s testimony that there was an actual agreement. I am not satisfied that what defendant alleged occurred on June 30, 1940, did actually occur. I find, therefore, that defendant and Samuel Pontani did not enter into a common-law marriage.

It follows that defendant and Samuel Pontani were tenants in common.

Judgment will be entered for plaintiffs.


author: Stein, J. S. 'C.

text:
    THE PLAINFIELD TRUST COMPANY, EXECUTOR AND TRUSTEE UNDER THE WILL OF JOHN H. SANBORN, DECEASED, PLAINTIFF, v. MARGARET C. DIEM, ROLLAND S. DIEM AND ANNE DIEM, HUSBAND AND WIFE, PHYLLIS G. FLURY AND FRANK FLURY, HER HUSBAND, AND MALCOLM Q. DIEM, SINGLE. DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided March 15, 1951.

      Mr. George L. Feaster, attorney for plaintiff.

      Mr. II. Douglas Stine, attorney for defendant, Margaret C. Diem.

      Mr. William J. McCormack, attorney for defendants, Holland S. Diem and Anne Diem, Ms wife, Phyllis Gordon Plnry and Prank Plnry, her husband, and Malcolm Q. Diem.
   Stein, J. S. 'C.

John A. Sanborn died August 16, 1948, leaving a last will and testament duly probated November 23, 1948. His wife, Mary A. Sanborn, predeceased him and died on February 16, 1945. Decedent appointed The Plainfield Trust Company as executor and trustee of his will with power and authority to sell and convey any real estate of which he died seized. The only real estate of which he died seized was his residence in Plainfield.

The will provided that his wife, Mary A. Sanborn, was to receive his entire estate if living at the time of his death. In the event his wife predeceased him, the rest, residue and remainder of his estate was to go to his trustee in trust (a) to invest and reinvest the same and pay the income to his daughter, Margaret C. Diem, “for and during her natural life, and at her death to divide the estate then remaining in equal shares among the children of Margaret C. Diem, and if any of them be deceased leaving issue surviving, then the share of such deceased child shall go to and be divided among the issue of such deceased child.” His trustee was given “absolute discretion,” full power and authority to use the principal of the trust fund as may be necessary “to meet any emergency or extraordinary circumstances or for the comfortable support and maintenance of said daughter, Margaret C. Diem, and her children.”

Decedent’s real estate is of the value of $6,700. The defendants in these proceedings are the decedent’s daughter, Margaret C. Diem, 'and her children Rollahd S. Diem and his wife Anne Diem, Phyllis G. Plury and Prank Plury her husband, and Malcolm Q. Diem.

The allegations of the complaint and amended complaint are admitted and the case is submitted for decision on the pleadings.

The trustee requests instructions (a) whether the executor and trustee may sell the real estate to meet what in the complaint is set forth to be extraordinary circumstances; and (b) whether the trust may be terminated since the defendants consent to the termination of the trust; and (c) whether the trustee, because of the emergency and extraordinary circumstances may convey the premises to Margaret C. Diem and her children.

The complaint alleges the emergency and the extraordinary circumstances to be that the estate owes Margaret C. Diem who occupies the real estate $2,663.17 as of March 6, 1951, for expenses incurred in decorating and repairing the real estate. Margaret C. Diem resides in the house and pays the trusiee $30 rent monthly.

The executor and trustee may sell the real estate under its discretionary power. The trust may not be terminated even though Margaret C. Diem and her children join in the prayer that such may be done, since under the will it is provided that if any of the children of Margaret C. Diem “be deceased leaving issue surviving, then the share of such deceased child shall go to and be divided among the issue of such deceased child.” Persons not yet in being have an interest. Nor may the trustee convey the premises to Margaret C. Diem and her children which would, under the circumstances, in effect accomplish the desire to terminate the trust.

The estate is not possessed of personal property. The daughter has paid in rent $930 since September, 1948, at the rate of $30 a month apparently in order to put the trastee in funds to pay the taxes assessed from time to time against the property, and paid in addition the sum mentioned for decorating and repairing the property. In the orderly administration of the trust, the trustee would have been obliged to expend this money if there had been any personal estate.

.If and when the real estate is disposed of Margaret C. Diem is entitled to be reimbursed.

Judgment in accordance with the foregoing.


author: Haxehax", J. S. C.

text:
    VINELAND SAVINGS & LOAN ASSN., PLAINTIFF, v. JAMES R. FELMEY AND DOROTHY FELMEY, ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided October 31, 1950.

      Air. John 0. Milstead for the plaintiff (Messrs. Milstead & McElroy, attorneys).

      Mr. Phillip P. Wodlinger for petitioner, Millville National Bank.

      Air. Alfred E. Alodarelli, United States District Attorney.
   Haxehax", J. S. C.

The present action results from an application for surplus monies arising from a sale held in a mortgage foreclosure. The particular question concerns the priority of two judgment creditors of the mortgagors.

The Vineland Savings and Loan Association held a mortgage executed by and encumbering certain real estate owned by the defendants James and Dorothy Felmey. On the 9th day of March, 1950, the said Vineland Savings and Loan Association filed a complaint seeking to foreclose said mortgage, joining the Corn Exchange National Bank and Trust Company by reason of a judgment held by it against the said mortgagors, obtained in the District Court of Cumberland County, which was docketed in the office of the Clerk of Cumberland County on the 18th day of August, 1949.

Thereafter, and during the pendency of the foreclosure proceedings, the Millville National Bank obtained a final judgment against James and Dorothy Felmey in the District Court of Cumberland County on Hay 1, 1950, which judgment was docketed in the Cumberland County Court on J une 22, 1950, and in the New Jersey Superior Court on August 2, 1950. On June 21, 1950, said real estate here involved was sold by the Sheriff of Cumberland County in connection with said foreclosure, resulting in a surplus of $561.06. The sheriff's deed is dated July 18, 1950, and was delivered to the purchaser a day or two after its date.

Execution on the judgment of the Millville National Bank was issued and levy made by the Sheriff of Mercer County on the said surplus monies then in the hands of this court on August 10, 1950. No further proceedings in connection with this levy were thereafter taken.

The levy was made in the following language:

“levy upon the rights and credits of James Felmey & Dorothy Felmey * * » upon all the right, title and interest of said defendants in and to all moneys deposited with the Superior Court of New Jersey, representing surplus moneys paid into said Superior Court by the Sheriff of Cumberland County, arising out of the sale of real estate conducted by said Sheriff of Cumberland County, in the matter of Vineland Savings and Loan Association v. James R. Felmey, et ux., et als., Docket No. F-1278-49.”

On September 14, 1949, the said Corn Exchange National Bank and Trust Company assigned said judgment to the United States of America, which assignment was recorded in the Clerk’s Office of Cumberland County on April 11, 1950. A transcript of said judgment was docketed with the Clerk of the Superior Court of New Jersey on July 13, 1950.

Neither the said Corn Exchange National Bank and Trust Company nor the United States of America have taken any proceedings, either by way of answer in the foreclosure or by way of issuing execution upon said judgment.

The Millville National Bank takes the position that it is entitled to be first paid out of the surplus monies prior to the United States of America by virtue of the levy and execution above referred to, under R. 8. 2:26-131. This statute reads as follows:

“Whereas, other judgments, and recognizances, besides those, or some of those, by virtue whereof the sale aforesaid was made, might affect the real estate so sold, if no provision be made to remedy the same, and whereas, the persons who have not taken, or will not take out executions upon their judgments, or recognizances, ought not to hinder or prevent such as do take out executions from having the proper effect and fruits thereof, therefore, in any such case, the purchaser, his heirs and assigns, shall hold the lands, tenements, hereditaments, and real estate by him or her purchased as aforesaid, free and clear of all other judgments and recognizances, whatsoever, on or by virtue of which no execution has been taken out and executed on the real estate so purchased.”

The United States of America, on the other hand, in effect assumes the position (1) that the property levied on is in custodia legis and hence not subject to levy; (2) at the time of levy the interest of the judgment debtor in the realty had been extinguished and that the surplus funds were personalty; and (3) the levy was upon the “right, title and interest” (rights and credits) of the judgment debtor in the fund and as such was subject to the lien of its judgment.

In order for the Millville National Bank to succeed upon its theory it becomes necessary to first ascertain whether a levy may be made on property in custodia legis.

In Fredd v. Darnell, 107 N. J. Eq. 249, 152 A. 236, (Ch. 1930), the court said, at page 253 :

“It is a general rule that money or other property in the hands of an officer of a court is regarded as being in custodia legis, and in consequence ordinarily cannot be reached by execution in the absence of legislative authority. That rule appears to be based upon a necessity, incident to orderly judicial procedure, for any court which has acquired primary jurisdiction over property to continue the exercise of that jurisdiction free from embarrassments or conflicts with other courts arising from subsequent claims against the same property. Since a levy ordinarily embodies the elements of dominion and control of the property levied upon, such a levy upon property in custodia legis may seriously interfere with orderly administration by the primary tribunal. Accordingly the test of immunity of property in custodia legis may in general be said to be whether substantial confusion or embarrassment to the initial jurisdiction would result from the enforcement of process against the property by another tribunal.”

No confusion or embarrassment would be attendant upon a levy made as here, and hence the property is not immune from but is rather subject to such a levy.

The second and third arguments of the United States of America concern themselves not only with the character of the property involved but concurrently with the manner in which a priority may be obtained by a judgment subsequent in date over a judgment prior in date of recovery.

The priority which is accorded to a junior judgment over a senior judgment where a levy is made on realty results from B. 8. 2:26-137. This statute, paraphrased, makes provision that the purchaser at a judgment execution sale shall obtain title free, clear and discharged from all other judgments and recognizances. The court, by analogy, determined that the mere issuance of execution and levy on real estate by a judgment creditor resulted in a priority for such judgment creditor over all other judgment creditors, regardless of the date of docketing, and that an actual sale thereunder was not requisite for such a result.

In Clement v. Kaighn, 15 N. J. Eq. 47 (Ch. 1862), the court said, at page 57:

“The statute, in terms, relates merely to the title which a purchaser by virtue of a sheriff’s sale under an execution at law shall acquire. It declares that the purchaser under a sale by virtue of an execution issued upon a junior judgment shall hold the land clear of all judgments upon which no execution has been taken out and executed on said land. In effect that gives to the junior judgment, by virtue of which the land is sold, priority over the senior judgment upon which no execution hath been sued out and executed upon the land. But the design' of the statute is to give to the plaintiff in the junior judgment upon which execution is first sued out ‘the proper effect and fruits thereof.’ The operation of the statute cannot, therefore, be limited to the case of a sale under the junior judgment, where no execution hath been sued out upon the senior judgment and levied upon the land. For if that were so, it would enable the plaintiff in the prior judgment to sue out and levy his execution upon such judgment after the levy under the execution upon the junior judgment, and thus defeat the express object of the statute by preventing the jDlaintiff in the junior execution ‘from obtaining the effect and fruits thereof.’ To give effect, therefore, to the statute, it is necessary to hold that the plaintiff in the junior judgment, by suing out and levying the first execution upon the land, acquires a priority of lien, which cannot be affected by any execution subsequently issued, nor by any mode in which the land may be sold. The issue of the execution upon the junior judgment and its delivery, duly recorded, to the sheriff, destroys the priority which was enjoyed by the older judgment, and transfers it to the junior judgment. It reverses the priority of the encumbrances, no matter in what mode the land may be sold. This, I think, must have been the result if there were no further provision upon the subject. But the statute further declares, that where sundry executions issue against the goods and lands of the same person, then the like priority and preference shall be given as is given in writs of execution against goods only, viz., they shall bind the property from the time that the writ, duly recorded, shall be delivered to the sheriff. Nice. Dig. 248, se,c. 3, 4; 722, sec. 3.”

Seo also Riverside, Building & Loan Assn. v. Bishop, 98 N. J. Eq. 508, 131 A. 78 (Ch. 1925); Swift & Co. v. First National Bank of Hightstown, 114 N. J. Eq. 417, 168 A. 827, (Ch. 1933); Lippincott v. Smith, 69 N. J. Eq. 787, 64 A. 141 (E. & A. 1905).

Undei1 a proper state of facts, therefore, a levy upon realty under a judgment may, in and of itself, succeed in establishing a priority in lien thereof.

One of the elements required to make such a priority effective under R. S. 2 :26 — 137 is that the property levied upon be realty.

The nature of such properly here levied upon must therefore he determined.

In this State our courts, regarding more the essence than the form of a mortgage transaction, have laid down the principle that the mortgage does not vest in the mortgagee an immediate estate in the lands, with the right of immediate possession, defeasible upon the payment of the mortgage money, but merely gives him a right of entry on breach of the condition, in which event his estate has all the incidents of a common law title, including the right of possession subject to the equity of redemption, and, meanwhile, the mortgagor is treated as the owner of the lands for all purposes. In New Jersey, a mortgage is essentially security for the payment of the debt. Sears, Roebuck & Co. v. Camp, 124 N. J. Eq. 403, 1 A. 2d 425 (E. d; A. 1938); Farrow v. Ocean County Trust Co., 121 N. J. L. 344, 2 A. 2d 352 (Sup. Ct. 1938) ; Riverside Building & Loan Assn. v. Bishop, 98 N. J. Eq. 508. 131 N 78 (Ch. 1925). And so the mortgagor, until a default and action by the mortgagee, would continue to he regarded as the owner of the fee title.

Consistent with the foregoing, where execution is issued and levy made upon real estate prior to or during the pendency of a foreclosure of a mortgage to which said real estate is subject, the judgment creditor so causing the levy to be made acquires a priority of lien over a judgment earlier recovered upon which no levy has been made. Riverside Building & Loan Assn. v. Bishop, 98 N. J. Eq. 508, 131 A. 78, (Ch. 1925); Clement v. Kaighn, 15 N. J. Eq. 47 (Ch. 1862); Lovejoy v. Lovejoy, 31 N. J. Eq. 55 (Ch. 1879); Bogeri v. Lydecker, 45 N. J. L. 314 (Sup. Ct. 1883); Andrus v. Burke, 61 N. J. Eq. 297, 48 A. 228 (Ch. 1901).

Under the system now existing in this State, the right of the owner to redeem the realty, the subject of foreclosure, is not cut off for at least ten days after the sale by the sheriff if no objection to the sale is filed within that time. Chee v. Davenport, 2 N. J. Super. 532, 64 A. 2d 902 (Ch. Div. 1949), affirmed, 4 N. J. Super. 518, 68 A. 2d 284, (App. Div, 1949). And so it becomes patent that for the period of time preceding the termination of the right of redemption a judgment creditor had the right to levy on the real estate itself (the right of redemption of the judgment debtor) and obtain a preference.

In the matter sub judice, the right of the judgment debtor to redeem had been extinguished prior to the levy in question. We are, therefore, confronted with the question as to whether the surplus fund continued to retain its character as realty or was converted into personalty.

Generally, surplus funds resulting from a sale under a mortgage foreclosure of realty are deemed not to be converted into personalty but continue to maintain their classification as realty, insofar as the liens or the vested rights in the realty are concerned. Servis v. Dorn, 76 N. J. Eq. 241, 76 A. 246 (Ch. 1909); Morris v. Glaser, 106 N. J. Eq. 585, 151 A. 766 (Ch. 1930); affirmed, 110 N. J. Eq. 661, 160 A. 578 (E. & A. 1932); Zelley v. Zelley, 101 N. J. Eq. 37 136 A. 738 (Ch. 1927); Hackensack Trust Co. v. Tracy, 86 N. J. Eq. 301, 99 A. 846 (Ch. 1917); Hinchman v. Stiles, 9 N. J. Eq. 454 (Ch. 1853); Vreeland v. Jacobus, 19 N. J. Eq. 231 (Ch. 1868).

In view, therefore, of the nature and character of a mortgagor’s interest in the mortgaged realty, and the continued existence of the surplus fund realized upon a sale under foreclosure as realty insofar as liens or vested rights in the realty are concerned, it is here held that levy may be made upon such surplus under R. 8. 2:26-137. This being so, the “right, title and interest” of the mortgagors in the fund is an interest in realty, and the Millville National .Bank is entitled to a priority over the United States of America in the surplus. If, however, we concede, merely for the sake of argument and the purposes of this opinion, that the surplus monies are personalty, as is suggested by the United States of America, wo must arrive ?at the same conclusion insofar as the question of priority is concerned.

It is to be noted that the levy was not only upon the “right, title and interest” of the mortgagors but upon the “rights and credits” as well.

The effect of a levy made in accordance with the statute is the same as if it had been made on personalty. In the ease of personalty, the lien of a judgment becomes effective upon the making of a levy by the sheriff, but dates back to the delivery of the writ to him. R. S. 2 :26-90 to R. 8. 2 :26-94; McAdams v. Mundy, 79 N. J. L. 480, 76 A. 1031 (E. & A. 1910); Fredd v. Darnell, supra; Wallon v. Hillier, 128 N. J. L. 119, 24 A. 2d 219 (E. & A. 1942).

Pursuant to the applicable statutes hereafter referred to, rights and credits may be levied upon as other goods and chattels. Moran v. Joyce, 124 N .J. L. 255, 11 A. 2d 420, (Sup. Ct. 1940) ; Cohen v. Cohen, 126 N. J. L. 605, 20 A. 2d 594 (Sup. Ct. 1941).

R. S. 2 :26 — 168, the pertinent and applicable statute, provides as follows:

“As used in sections 2:26-169 to 2:26-181 of this title, ‘rights and credits’ includes all rights and credits which may be taken by writ of attachment against nonresident debtors, and also rights and credits of an equitable nature, except such trust funds as are exempt by law; and nothing contained in said sections 2 :26-169 to 2 :26-181 shall be construed as impairing the rights of an execution creditor under other provisions of this article or any law of this state relating to executions.”

B. S. 2:26-169 provides as follows:

“Bights and credits shall be levied upon and taken as property is taken under writs of attachment against nonresident debtors.”

B. S. 2:26-170 provides as follows: .

“Rights and credits of a defendant in execution, or within his custody or control as a representative if he is sued in a representative capacity, may be levied upon, taken and sold or collected by virtue of such execution.”

B. S. 2:26-171 provides as follows:

“Rights and credits levied upon shall not be sold without leave of the court or a judge thereof.
Sales of rights in real estate taken hereunder shall be made in the manner provided by law for judicial sales of real estate.
Sales of rights and credits in the nature of personal property shall be made in the manner provided by law for judicial sales of chattels.”

The source of the above cited statutes is P. L. 1915, c. 115, p. 182.

The same rule that applies to the nature of property arising as surplus upon a foreclosure sale applies to monies arising from an Orphans’ Court sale for the payment of debts and to a sale in an action for partition. Morris v. Glaser, 106 N. J. Eq. 585, 151 A. 766, (Ch. 1930), affirmed, 110 N. J. Eq. 661, 160 A. 578, (E. A. 1932); Oberle v. Lerch, 18 N. J. Eq. 346 (Ch. 1867).

In Fredd v. Parnell, supra, the fund in custodia legis upon which a levy was made resulted from a sale in a partition action. The levy there was made in the following manner:

“On all the right, title and interest of the said Armitt F. Darnell (judgment debtor) of, in and to the proceeds of a certain sale' of real estate made by Ernest Watts, special master in chancery, in a certain cause in chancery of New Jersey, between Beatrice D. Fredd, et vir., complainants, and Armilt F. Darnell, et urn., et oí., defendants, pursuant to an advertisement of said special master’s sale which is attached hereto, and which described the real estate by metes and bounds, and which proceeds of sale are now in the hands of Ernest Watts, special master in chancery before referred to, which said interest of Arniitt F. Darnell amounted to one thousand seventy-eight dollars and eighty-four cents ($1,078.84), as by a report of said special master in said cause will more fully and at large appear, reference being had thereto.”

The court said, at page 254:

“As already disclosed the levy here in question was made on the ‘right, title and interest’ of the judgment debtor in the fund in the hands of the special master. Since the present statute authorizes a levy on ‘rights and credits’ of a judgment debtor in the manner in which property is attached under writs of attachment against nonresident debtors it seems clear that the levy here in question may be regarded as in the nature of an attachment of the interest of the judgment debtor in the fund then in the hands of the special master.
It is not herein overlooked that for most purposes the fund arising from the. sale of land in partition suits, though in fact money, is regarded in equity as in the nature of real estate. But after the partition sale the title to the original real estate had been transmitted to the purchaser at the sale, and a co-tenant retained only a right 1o participate in the distribution of the fund; it is that right which has been levied upon, under authority of the act of 1915, in the manner in which property is attached under writs of attachment against nonresident debtors, and such levy in no way embarrasses the due administration of the fund through a decree of distribution in the partition suit, since the levy on the ‘right, title and interest’ of the judgment debtor in the fund will now be given recognition as a valid levy and will establish the execution lien as of the date of the delivery of that execution to the sheriff.”

The court, did not there discuss the applicability oí G. S.3 p. 4676, Rev. 1877, p. 1044 (the source of R. 8. 2:26-137).

The similarity of the levy there to that in the instant ease is noteworthy.

li: is, therefore, held that by reason of the levy here made, in the light of either R. 8. 2 :26-137 or R. 8. 2 :26-168, ei seq.3 the Millville National Bank is entitled to be first satisfied to the extent of its judgment from the surplus fund herein.

J udgment consistent with the foregoing will ho entered.