author:
Habby J. Go as,
      Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    AUGUST KALAYIS, PETITIONER, v. GEORGE PUCHINKIS, RESPONDENT.
    Petitioner Injured and Compensated, Bureau Holding the Injuries Temporary—More Than a Year After Adjudication This Petition is Filed Alleging Tuberculosis as the Result of the Injury—Held, That Proper Procedure Should be by Appeal From Original Determination, That the Case is Res Adjudicata; but Bureau Examined Into Facts at Length and Held, Also, That There Appeared no Causal Connection Between Accident and Present Condition.
    On claim petition.
    Por the petitioner, Samuel Greenstone.

    For the respondent, Charles W. Weeks.

   *******

The alleged accident occurred on the 29th day of October, .1923, and the original petition was filed April 17th, 1924, in which it was claimed that the petitioner, while lifting a heavy outside door, received a severe strain causing serious hemorrhage and internal injury affecting the heart and nervous system. After several hearings upon this petition a determination was filed in which it was adjudged that the only disability shown by the proof was a temporary condition of acute dilatation of the heart, for which condition compensation was allowed, and the claim that the petitioner was suffering from a permanent disability due either to a heart condition or tuberculosis was decided adversely to the petitioner. In the new petition, filed June 3d, 1925, petitioner claims permanent disability as a result of a tubercular condition, and objection is made to this claim on the ground that the original determination is res adjudicatcbj and that the remedy, if any, of the petitioner, was by way of appeal from that determination. I think this objection is well taken.

Counsel for the petitioner attempts to avoid the effect of the determination on the original petition by the assertion that the chronic tubercular condition alleged to exist at this time is an increased disability, but by no stretch of the imagination can the alleged tubercular condition be said to be an increase of the disability determined to be existing at the' time' of the original adjudication, and if this petition is to be treated as a new application for compensation on the basis of a different disability than that claimed in the original petition, such a claim is barred by the objection of the respondent that the petition was not filed within the time specified in section 23, subdivision h. That this objection is also well taken at once appears from a reading of the case of Luszcs v. Seaboard By-products Co., 127 Atl. Rep. 212.

While I think the petition should be dismissed for the reasons given above, I am, nevertheless, reluctant to dispose of the case on technical grounds, and for .that reason I have examined all of the testimony with great care.

Petitioner now claims that- the alleged existing chronic tubercular condition causes his present disability, and that this tubercular condition resulted from the strain attendant upon lifting the door on the day in question, and in support of this contention he produced two doctors who did not see the petitioner until, in the case of Dr. English, over one year after the happening of the alleged accident, and in the case of Dr. Gluckman over two years after the happening of the accident, and while these physicians said, in answer to a hypothetical question, that in their opinion there was a reasonable probability that the tubercular condition was caused by .the -lifting of the door, upon cross-examination it was developed that if there was any causal connection between the strain and the lighting up of a latent condition of tuberculosis, the symptoms of activity would be in evidence within a period at the outside of eight weeks thereafter. It also appeared on their cross-examination that in their opinion he had a latent condition of tuberculosis at the time of the happening o>f the accident, and that such a condition might be lighted up by any number of causes, some of which involved physical strain (such as chopping wood) or trauma and other causes which had no relation to strain; and further, that the latent condition might become active without any cause whatever but from the progressive tendencies of the disease itself, and even in the face of treatment designed to eliminate or retard the tubercular condition. With this testimony in mind, we turn to the facts as they developed on the original hearing, and it appears from the testimony of the petitioner himself that he had chopped wood after the alleged accident' and did various other things about the house involving some strain. Furthermore, it appears from the testimony of his own family physician, who was called in upon the day in question, that an examination made at that time by him eliminated any condition of tuberculosis, and that he treated the man until some time in March of the following year for dilatation of the heart. In addition to this, the petitioner was examined at the health clinic conducted by the department of health of the city of Newark by Dr. Fine on several occasions in the months of February and March, 1924, and his examination showed that the petitioner had nothing wrong with his heart or lungs. . His sputum was examined and found to be negative as to tubercular bacilli. Dr. Fine also had an X-ray picture taken on February 16th, 1924, by Dr. Baker, who produced the plate and testified that the X-ray showed no evidence of any tuberculosis.

Dr. Brown examined the petitioner in December of 1923 and testified that he found no evidence of a tubercular condition existing at that time, so that from the testimony of all of the medical men who had the petitioner under observation for a period of time immediately following the happening of the accident, it appears that no symptoms of an active condition of tuberculosis existed within a period of upwards of two months following the lifting of the door, and it therefore appears that the opinions of Dr. English and Dr. Glucksman finds no support in the facts as developed by the testimony. In this connection it is worthy of note that none of the physicians who testified for the petitioner at the original hearing are produced to support his present claims.

I have hot attempted in this determination to recite all of the facts indicating the non-existence of any symptoms of an active condition of tuberculosis, but, from the short resume given above, it will appear conclusively, I think, that the petitioner failed to bear the burden of proving the causal connection between the happening of the accident and the alleged tubercular condition which under the cases he is required to do. Bryant v. Fissell, 84 N. J. L. 72; Krapowitch v. Public Service Railway Co., 3 N. J. Mis. R. 933; Kitka v. Standard Underground Cable Co., 3 Id. 951; Magolda v. Central Ice and Cold Storage Co., 3 Id. 953.

On the contrary, the weight of the testimony affirmatively shows that there is no causal connection existing between the lifting of the door and the tubercular condition testified to by Dr. English, and any finding to the contrary would be the result of mere guess or speculation. It might not be out of place to point out also1 that no attempt has been made upon the part of the petitioner to exclude the idea that his present condition is the result either of the natural progressive tendencies of the disease itself, or of any one of the number of the causes testified to by his own physicians with which the defendant had no connection. That this is his duty is pointed out in the case of Migliaccio v. Public Service Railway Co., 3 N. J. Adv. R. 1427, in which the Supreme Court said:

“It is incumbent upon the plaintiff to exclude the idea that death was due to a cause with which the defendant was unconnected. This is pointed out in the opinion of the present Chief Justice in the case of Suburban Electric Co. v. Nugent, 58 N. J. L. 658. We think the plaintiff failed to exclude in his testimony the idea that death was due to a cause with which the defendant was unconnected. To permit the recovery of a judgment upon the testimony of the present case would be to permit a jury’s guess or speculation to deprive a defendant of its property.”

The duty to exclude the existence of other possible causes with which the defendant was not connected was also established by the opinion of Mr. Justice Magie in the case of Houston v. Traphagen, 47 N. J. L. 23.

I, therefore, find that the petitioner has not only failed to negative the existence of other possible canses for his present condition, but has also failed to establish any causal connection whatever between the alleged accident of October 29th, 1923, and the present alleged condition of tuberculosis, and further, from a preponderance of all the testimony in this case, it appears that there is no causal connection between the alleged accident and the present condition. *******

Habby J. Go as,

Commissioner.


source: Caselaw Access Project

author:
Charles E. Corbin,
      Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARGARET CORNELIUS, PETITIONER, v. WARNER SUGAR REFINING COMPANY, RESPONDENT.
    Petitioner Claimed to Have Been Living With Her Husband at Time of His Death, Which was Caused by an Accident While in Defendant’s Employ—Evidence Showed That She Had Left Him More Than Three Months Before and Had Refused to Return to Him.
    For the petitioner, Armstrong & Mullen.

    For the respondent, Richard W. Baker.

   *******

The petitioner testified on her own behalf and claimed that she was residing with her husband at the time of his death while working for the respondent; was totally dependent upon him, and had not remarried since the date of the accident, on July 11th, 1922. She further alleged that the respondent had paid her one hundred and seventy-six (176) -weeks’ compensation at the rate of $12 per week. On behalf of the respondent Cyril Stephens, a half-brother of the deceased, James Cornelius, a brother of the deceased, and Mrs. Samuel, who was living in the same house with the decedent, were called to testify. These witnesses testified that Mrs. Margaret Cornelius was not living with the deceased at the time of his accident and death, in July, 1922. The testimony was that she had left her husband in March, 1922, and that in spite of attempts to get her to go back, she refused to do so, and, therefore, was not a part of the decedent’s household at the time of his death.

After going over the evidence in this case, I find that the petitioner has failed to sustain the burden of proving that she was a member of the deceased’s household at the time of his death, and, therefore, is not conclusively presumed to be a dependent.

I find from the preponderance of evidence that the petitioner was not a member of the-deceased’s household at the time of his death, and, as dependency was not proved, I find that this petition should be -dismissed.

Accordingly, I hereby order that the petition' be dismissed without cost to either party.

Charles E. Corbin,

Deputy Commissioner.


author: Ingeesoll, Y. C.

text:
    Agnes V. Williams, complainant, v. Sallie Raab, defendant.
    [Determined August 26th, 1926.]
    Sale of Land—Specific Performance—Lease With Option to Purchase at Specified Price Before Expiration—Tender of Price Made but Not in Manner Determined by Lease—Weld, Tender was Not Made nor Waived.
    On bill for specific performance. On final hearing.

      Messrs. Cassman & Gottlieb, for the complainant.

      Messrs. Babcock <& Champion, for the defendant.
   Ingeesoll, Y. C.

The complainant is the tenant of the defendant and in possession of certain premises in Atlantic City, designated in the leases as “all that furnished house known as No. 64 North Windsor avenue, Chelsea, New Jersey.”

In said lease is the following clause:

“The party of the second part has the option to purchase the within property at any time during the term of this lease under the following conditions: Purchase price ten thousand five hundred dollars [$10,500], subject to a purchase-money mortgage of seventy-five hundred [$7,500] on or before five years; balance of $8,000 cash on day of settlement.”

Prior to the expiration of the lease the complainant presented herself with a certified check, together with a bond and purchase-money mortgage, and demanded of the defendant a deed for the lands and premises described in the bill, and also a bill of sale for the furniture. These the defendant declined to execute. The complainant was not entitled to receive the deed and bill of sale in the form presented to her. Gough v. Williamson, 62 N. J. Eq. 526 (at p. 531); Waters v. Bew, 52 N. J. Eq. 787.

It is true that should the complainant be found to be entitled to a conveyance, a general description by lot number, as No. 64 North Windsor avenue, would entitle her to receive a deed, at least, in the language of the agreement.

In the supposed tender the deed demanded was by metes and bounds, and included a right of way over adjoining property. This right of way was not included in the purchase-money mortgage prepared by the complainant.

The bill originally averred a legal tender, but was later amended averring the waiver of the tender. I am unable to find that tender was either made or waived.

The complainant insists that an option to purchase, contained in a lease, is enforceable. This is true. Behr v. Hurwitz, 90 N. J. Eq. 110.

The general rule that time is deemed not to be of the essence of the contract, except by express statement, is not applicable in this case, as the complainant failed to make a proper tender to exercise her option during the term of the lease. .Not having exercised her option during that period, she cannot, by filing her bill thereafter, enforce the contract.


author: Kocher, Advisory Master.

text:
    Essex County Orphans Court.
    In the matter of the estate of Nettie B. Crotty, deceased.
    [Decided August 20th, 1926.]
    Wills — Probate — Undue Influence — Testator Discriminated Against Children Who Had or Who Shall Marry Persons of the Roman Catholic Faith—Undue Influence is That Which Dominates the Will of the Testator and Produces a Testamentary Disposition Which Would Not Have Been Made Had it Not Been for the Coercive Effect of Such Influence— Testimony Showed That No Such Coercion was Exercised— Wills Will Not be Set Aside on Account of Strong, Violent and Unjust Prejudice When Such Prejudice is Not the Result of Delusions or of Mental Incapacity.
    Messrs. Hobart & Minará (by Duane E. Minará), for the proponent.

      Messrs. Howe & Davis (by Richard J. Fitz Maurice), for the caveator.
   Kocher, Advisory Master.

Nettie B. Crotty, late of West Orange, New Jersey, died on November 7th, 1925, leaving a certain paper-writing purporting to be her last will and testament, wherein and whereby she divided her property equally among her children, Elorence, Robert and James. She further provided that if either of her sons should thereafter marry girls of the Boman Catholic faith, in that event they should receive nothing from her estate. She also left an undivided fourth part of her estate to James L. Crotty, the executor named in said will, in trust for her son Harry I. Crotty, and provided that if, at the expiration of three years from her death, her said executor was satisfied that her said son Harry I. Crotty, was no longer addicted to the use of intoxicating liquor, then, and in that event, she directed him to pay the principal of said trust fund to the said Harry I. Crotty.

The third paragraph of testatrix’s will reads as follows:

“Third. I am not making any provision in this will for my.-son Albert A. Crotty, because he has, against my expressed wishes, married a girl of the Roman Catholic faith.”

A-caveat against the probate of said will was filed by the said Albert A. Crotty.

It appears from the testimony that John E. Selser, a member - of the bar of this state of unquestioned integrity, was communicated with about the middle of September, 1925, by one’ Mrs. Piggiñs, a mutual friend of both Selser and the testatrix, who advised him that Mrs. Crotty desired to make her will; that he called at the home of-Mrs. Crotty'and found her in bed, but with her mental faculties unimpaired, and that after a lengthy discussion with him as to the disposition which she desired to make of-her estate she gave him instructions in regard to the preparation of the will as above outlined.

Later on, Mrs. Crotty went to the hospital and Mrs. Florence Ditzel, one of the testatrix’s daughters, communicated with Mr.' Selser that Mrs. Crotty was anxious to execute the will, and on October 15th, 1925, Selser, who in the meantime had prepared the will in accordance with Mrs. Crotty’s instructions, went to the hospital and superintended its execution; the witnesses being himself and Mrs. Piggins.

. It is admitted that the paper-writing in question was executed in manner and form prescribed by law, but it is vigorously contended on the part of the caveator that the will is the product of undue influence.

Undue influence has been defined to be such influence as dominates the will of the testator and produces a testamentary disposition which she would not have made if not coerced by such influence. Byrnes v. Gibson, 68 Atl. Rep. 756. It must be such as to destroy the free agency of the testator and amount to moral or physical coercion. It must be proved, moreover, that the act done was the result of coercion. There must be a control exercised over the mind of the testator or an importunity practiced which he could not resist or to which he yielded for the sake of peace. Lover idge v. Brown, 3 N. J. Adv. R. 1050; In re Tunison’s Will, 83 N. J. Eq. 277; affirmed, 93 Atl. Rep. 1087.

The testimony in this case will be searched in vain for any indication of the exercise of any influence as above defined by any person or group of persons. It is true that the question whether a testamentary disposition is the product of undue influence or not must always be largely controlled by the condition of mind and state of health of the person alleged to have been unduly influenced, Haydock v. Haydock, 33 N. J. Eq. 494; affirmed, 34 N. J. Eq. 570. In the case under consideration, however, there is nothing to indicate that the testatrix’s mind was in anywise affected by her illness. On the contrary, the very terms of the will, and its-provisions creating a truat of Harry Crotty’s share, until her executor shall feel satisfied that he had overcome his habits of drunkenness, of itself is indicative of the existence of a robust intelligence. The most that can be said is that the will shows upon its face that testatrix entertained a violent prejudice against her children or sons marrying girls of the Eoman Catholic faith.

The testimony upon this subject is that while testatrix was not intolerant toward persons confessing the Eoman Catholic religion, but that, on the contrary, she had many friends who professed that faith, still she was unutterably opposed to what she called mixed marriages—that is to say, marriages between Eoman Catholics and Protestants, and that she entertained a firm belief that such marriages were not successful. Perhaps she was influenced in this opinion by the experience of her daughter Florence, who had married a man who was said to be a Eoman Catholic, and who had separated from him, although Florence insisted that religion was not the cause of the separation. However that may be, it is settled that a will cannot be set aside on account of strong, violent and unjust prejudice of the testator exhibited in the disposition of his property made by his will, if such prejudice be not founded on delusions and does not show mental incapacity. Trumbell v. Gibbons, 22 N. J. Law 117; In re John Gleespin, 26 N. J. Eq. 523; Lewis’ Case, 33 N. J. Eq. 219, and it is also settled that the unreasonableness of testator’s prejudice and unfairness in the disposition of his property will not alone avail the court to repudiate the will. In re John Glesspin, supra.

The case under consideration is barren of any indication that the prejudice of the testatrix was founded upon delusions of any character, but that, on the contrary, they were the result of hereditary environment, and, to some extent, at least, of personal experience.

While the will upon its face states that the reason for not making any provision for her son Albert was because of his marrying a girl of the Eoman Catholic faith, Mr. Selser, the draftsman of the will, testified that in considering the disposition of her property by testatrix this was only one of the elements which entered into her mind and determined her to exclude Albert from participation in her estate. She told Mr. Selser that Albert had been a constant care to her and that his conduct caused her constant anxiety; that he had been arrested upon several occasions for various causes, and upon cross-examination Albert, himself, admited that he had been convicted of various crimes, ranging from assault and battery to stealing automobiles. That this testimony was competent upon cross-examination. See State v. Petrucelli, 98 N. J. Law 903; State v. Mount, 73 N. J. Law 582.

Mr. Selser further testified that the wayward conduct of Albert was the moving cause of his being deprived of participation in his mother’s estate, and that in discussing with testatrix the terms of her will she felt that she should give some reason why Albert was excluded therefrom, and not desiring to openly attack his character in her will, she suggested that the, reason which was alleged as that for his exclusion be expressed, which was, as a matter of fact, only one of many other reasons.

The caveator, in support of his contention that the will in question was the product of undue influence, relies upon a number of slight or suspicious circumstances spoken of in Spark's Case, 63 N. J. Eq. 242, the leading case on this subject and those following it, overlooking, however, the fact that all of these eases have their foundation in the e'xistence of confidential relations, which must be established before the so-called “slight circumstances” can become of any probative value. In this ease there is, however, not the slightest evidence of the existence of confidential relations between any of the beneficiaries under the will and the testatrix. This being true, the so-called “slight circumstances” became valueless.

The will in question was unquestionably executed as required by the statute; was executed by a person of competent mental capacity, and is not the product of undue influence and should be admitted to probate.

It is contended by proponent that the costs of this contest should be charged against the caveator for the reason that there was no reasonable cause for contesting the validity of the will, and that under section 197 of the Orphans Court act the court may determine who shall bear the cost of the controversy, and if there be no reasonable cause for contesting the validity of the will found, that the entire costs may be charged against the caveator.

In the case under consideration, while the testatrix was physically ill, her mind was, unquestionably, vigorous. She knew the claims of the various persons upon her bounty and carefully distinguished between them; she deprived Harry from presently participating in her estate until he had overcome the habit of indulging in intoxicating liquor; she discriminated against the caveator because of his long years of misconduct, which culminated by his marrying against her wishes, and she laid down the same rale of thumb in regard to her other sons, as she laid down in Harry’s case—that is to say, that they should not marry a girl of the Roman Catholic faith.

While there can be no question that a large amount of testimony was taken on the part of the caveator, which is of no value whatever in determining this controversy, still, under all of the facts of the case, I am constrained to deny the application of the proponent to charge the caveator personally with the costs of this proceeding.

All of which is respectfully advised.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GAETANO FIADINE, KNOWN AS TONY FRENO, PETITIONER, v. FLORENCE PIPE AND FOUNDRY COMPANY, RESPONDENT.
    Injury to Eye—Alleged Violation of Orders, in That Goggles Sup- ; • plied Were Not Used—Rule in Kolaszynski v. Klie, That the Disobedience of Orders was as to the Way the Work was Done, .Not Disobedience in Doing the Work, Followed and 'Judgment for Petitioner.
    On determination of facts and rule for judgment.
    Por the petitioner, Frank T. Lloyd, Jr.

    Por the respondent, Robert Peacock.

   * ' * . * * * * *

That petitioner, on May 23d, 1925, met with an accident •while in the employ of the respondent ■ as a chipper of cast-iron pipes, and suffered an injury to his left eye, permanently impairing the sight thereof; that the respondent had ■immediate notice of said accident; that the petitioner’s •wages amounted to $27 per week; that the accident arose ’out of and in the course of his employment.

The sole defense to this action is that petitioner acted in direct disobedience of his employer’s orders. Testimony on this phase of the case was gone into extensively. The petitioner testified that on various occasions prior to the accident he had been supplied with goggles by the respondent, but that he was unable to perform his work with them as •they were too dark. Several other witnesses of the respondent' testified that they occasionally did this chipping work ■without goggles. Respondent’s witness Mr. Ohler testified that he eared for- th’e eyes of the men who were injured, and he had numerous cases of ehippers similar to this of the petitioner.

In the case of Kolaszynski v. Klie, 102 Atl. Rep. 5, the court was confronted with the question as to whether or not an employe was entitled to compensation where she had disobeyed instructions ■ as to the manner of doing her work. In that case the employe used wood alcohol to assist her at lighting a fire, although she was instructed never to . use kerosene or anything like that, and the court said" that “it was a fortuitous event, which might, indeed, be expected, but might never happen. We must conclude that it arose out of and in the course of employment, unless the disobedience of orders prevents that conclusion. The disobedience of orders in this case was a disobedience of orders as to the way in which the work should be done. The work itself was the very work decedent was expected to do. It was done at the very place where it was meant to be done.”

So, in the case at bar, the petitioner was doing the very work he was expected to do, in the very place and manner it was meant to be done, in accordance with his employer’s instructions. This presents a stronger case for the petitioner than in the one cited above.

Dr. Sweet, the respondent’s physician, who treated petitioner, testified that he considered the eye to be affected to the extent of fifty per cent, with the assistance of glasses, and without glasses an impairment of ninety per cent. Following the case of Johannsen v. Union Works, 117 Atl. Rep. 639, I find the petitioner’s injury to be ninety per cent, loss of an eye.

$ $ * $ $ $ $

W. E. Stubbs,

Deputy Commissioner of Compensation.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    DANIEL LAMONICKA, PETITIONER, v. GENERAL PENCIL COMPANY, RESPONDENT.
    Infected Finger—Alleged That it was Caused by Splinter—No Attention or Notice for Nine Days—Then it was Alleged That Petitioner Had Asked Foreman and Another to Help Him Remove Splinter—This is Denied, but Foreman Says Petitioner Told Him Finger was Injured at Home.
    Eor the petitioner, Alexander Simpson.

    Eor the respondent, Richard W. Balcer.

   ❖ ❖ ❖ * * * %

The petitioner testified on his own behalf and also called to testify Dr. Ganelli and Dr. Snyder, and Julius Selchau, assistant foreman for the respondent. On behalf of the respondent, Dr. Eueif and Bernard Ypelaar were called to testify.

After carefully reviewing the testimony in this case, I find that the petitioner has failed to sustain the burden of proving that he sustained an accident arising out of and in the course of his employment with the respondent on July 16th, 1925. He testified that he was injured on this date, but that he did not go to his doctor, Dr. Ganelli, until nine days after the accident. Dr. Ganelli, when testifying on the stand, stated that he first saw the petitioner on July 18th, and when closely examined on this point he said that he was positive as to the date. He testified that at that time the petitioner had a badly infected thumb, which was about twice the normal size, and which had certainly taken several days to get in that condition. The doctor is more or less a disinterested party as far as contrasting his story with the petitioner’s story is concerned, and, therefore, we must take it that the petitioner has failed to prove that he received an accident while working for the respondent on July 18th, 1925.

Further, the petitioner claimed that he notified the hose, Julius Selchau, about the accident, and asked him to take the splinter out of his finger, but that the assistant foreman said that he was too busy to attend to it. He further states that a few days later he told Bernard Ypelaar, whom he referred to as “Pete,” about the accident, and how he had hurt his finger. When Julius Selchau was called to the stand by the attorney for the petitioner he denied ever having refused to try to get a splinter out of the finger at the petitioner's request, and denies that he knew anything about the petitioner having received an accident to the same, or the petitioner having told him that he had gotten the splinter in it while handling a box. When the foreman, Bernard Ypelaar, was called to the stand by the respondent, he likewise denied that the petitioner ever told him about receiving an injury by accident by getting a splinter in his thumb while handling a box at work, but went on to say that he noticed that the thumb was bandaged up, and as the bandage was dirty he put a new bandage on it, and when he asked the petitioner how he got it he told him that he hurt it the night before at home. Therefore, I find that the petitioner has failed to sustain the burden of proving that he notified the respondent of the alleged accident.

I find that the case should be dismissed, as the petitioner lias failed to prove an injury by accident arising out of and in the course of the employment on July 18th, of which notice was duly given to the respondent.

The case is therefore dismissed, without costs to either party.

Chabljbs E. Cobbin,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WALLACE B. ALLEN, PETITIONER, v. SARAH GLASER, RESPONDENT.
    Daughter of Petitioner, Employed as a Waitress, Her Compensation Including Lodging, was Burned to Death in the Employer’s Hotel at Night—Held, That She Met Her Death in the Course of Her Employment—Evidence Examined and Found That There was l'¡lo One Depending Upon Her for Support—Judgment for Funeral Expenses Only.
    Eor the petitioner,. Frank Heilenday for Aaron A. Melnilcer.

    Eor the respondent, Collins & Corbin (by Harry E. Walburg).

   * * . H* * . % # *

On August 36th, 1925., the deceased, Leona Allen, daughter of the petitioner, was in the employ of the respondent, Sarah Glaser, as a waitress, her wages consisting of $30 per month, together with board and lodging. At four a. m. on August 16th the new Atlantic Hotel, in Long Branch, operated by the respondent, was burned. All of the waitresses, with the exception of the petitioner’s decedent, escaped safely. She failed to awaken and came to her death. The family of the petitioner consisted of himself, his wife, Mary Allen, and Ka.thleen Allen, aged eleven. The father was employed as a janitor at Columbia University at $100 per month. His wife, Mary Allen, was in the habit of working at odd times, and was employed by the respondent at the same hotel where the daughter was burned.

The statement of facts, as given above, presents two questions for our consideration—first, was the deceased in the course of her employment at the time of the fire? Second, if so-, was anyone wholly or partially dependent upon the deceased prior to this occurrence?

An affirmative answer, I think, must be given to the first question under the ruling, that one is in the course of employment when engaged in carrying out the terms of contract. This contract of employment included lodging as one of its elements, and it was while under this phase of the contract that the fatality was experienced. The relation of master and servant evidently extended to all periods of time when the waitresses were on the property of the respondent, as it is hardly to be conceded that they were beyond the jurisdiction or authority of the respondent and free to do as they pleased irrespective of rule or regulation affecting them while in their sleeping quarters.

With regard to dependency, the testimony discloses that on the date of the occurrence the father was employed at a wage of $100 per month, and the mother was receiving as wages and tips from $80 to $90 per month and board. She was therefore self-supporting at the time of the accident. 1 am unable to reach the conclusion that the sum of these two figures was insufficient for the support of the father and the eleven-year-old sister of the deceased. The rule is that any case must be determined upon its status at the time of the accident. Erom the facts as cited it does not appear that anyone was actually dependent upon the deceased, at the time of the accident, for the necessities of life, involving food, raiment and shelter.

Assuming, however, for the sake of analysis, that a determination should not be based on the conditions pertaining at the time of the occurrence only, but that the financial and family status for some period of time prior to the accident should be considered, it would appear, from a study of the situation for the year preceding the occurrence, that the deceased had not during that time earned enough to cover her cost of support. Consequently, there was no surplus from her earnings to be applied toward the support of other members of the family.

The above line of reasoning leads to the conclusion that this case is one coming under the provisions of the Workmen’s Compensation act wherein no' one was actually dependent upon the deceased, and recovery cam be had therefore only for the allowance provided by the statute for the funeral expenses.

W. E. Stubbs,

Deputy Commissioner of Compensation.


author:
Harry J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MICHAEL FONTANAROSA, PETITIONER, v. KRAMER & KING, RESPONDENTS.
    Traumatic Hernia—Law Stated—Conditions Complied With.
    For the petitioner, Abraham I. Feltman.

    For the respondents, Bichard W. Baker.

   Froin the evidence submitted it appears that the petitioner, in the course of his employment, took rolls of silk from a machine and placed same on a table, which table was about fifteen feet away from the machine. At the time of the accident there were roles of silk piled upon said table about six feet high. The petitioner had been piling these roles of silk upon said table from the time he started work on the day of the accident, June 26th, 1925, from seven-twenty in the morning until three-thirty p. m.

After petitioner had placed a roll of silk in its place on the table and while both of his arms were extended over his head, he felt a sudden severe pain on his right side. He brought his right hand down to hold his right side where he had said pain, and with his left hand holding the edge of the table, he lowered himself to a position where a bench stood, and sat upon same. This bench was immediately adjoining the table and was about two feet in height and about two feet wide. Prom the moment he felt the pain to the time he sat down he did not take any steps. He stopped working immediately and sat on said bench for at least one-half hour. While he seated himself he was in intense pain, he was perspiring profusely about his forehead; that after sitting on said box for about fifteen minutes a fellow-employe saw that the petitioner was in pain and his forehead showed perspiration, and this fellow-employe administered cold, wet towels to the petitioner’s forehead.

The foreman saw the petitioner while he was seated on said bench, and after finding out from him what the trouble was told the petitioner to get dressed and go to a doctor. The accident happened at three-thirty p. *r. in the afternoon, and at four-thirty the petitioner went home, after being assisted out of the place by a fellow-employe. The petitioner worked, as a general rule, until eight-thirty in the evening, and after petitioner loft, a fellow-employe finished the work of the petitioner.

Immediately after leaving his place of employment the petitioner went to his doctor and he was informed by him that he had a hernia. Because of said condition petitioner was unable to do the work he was accustomed to before the accident happened.

Under Pamph. L. 1919, p. 204, ch. 93, 11, subdivision 10, hernia is a disease which ordinarily develops gradually, being very rarely the result of an accident. Where there is real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall, compensation will be allowed. All other cases will be considered congenital or of slow development and not compensible, being a disease rather than an accidental injury. Unless conclusive proof is offered that the hernia was immediately caused by sudden or severe strain that: "(1) The descent of-the hernia immediately'followed the cause; (2) that there was severe pain in the hernia region; (3) that there was such prostration that the employe was compelled to cease work immediately; (4) that the above facts were of such severity that the same was induced by the claimant and communicated to'the employer within twenty-four hours after the occurrence of the hernia; (5) that there was such physical distress that the attention of a licensed physician was required within twenty-four hours after the occurrence of the hernia.”

In'the case at bar the petitioner met with all the above requirements. The respondents raised that point that the requirements which provide that there should be such prostration that the employe was-compelled to cease work immediately was not complied with in that there was no prostration. This is the sole point raised by respondent to prevent the petitioner from recovering compensation. The facts indicated in this case, and I so find that there was a compliance with this requirement in that the petitioner, upon feeling a sudden pain on his right side, lowered himself to 9, bench and was in intense pain at said time and for quite some time thereafter while sitting on said bench; that while seated on said bench the petitioner was perspiring profusely; that this was an indication of severe pain and also of the fact that the petitioner was unable to continue work. Prostration as used in the statute is, I consider, a relative term; that it means that when an employe is seized with sudden pain and is in such a physical condition that he is compelled to cease work immediately; that that is sufficient prostration within the meaning of the act, and prostration does not necessarily mean that the injured person must lie prone. It is sufficient if the person injured suffered in the manner as in this case indicated.

* # * * * * * *

Harry J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ALPHONSO SUPPO, PETITIONER, v. PUBLIC SERVICE PRODUCTION COMPANY, RESPONDENT.
    Alleged Injury Through Fall—Evidence Indicated a Gastrointestinal Condition, Not Related to Tauma and in No Way Connected With an Accident.
    Eor the petitioner, I. Boss McQombe.

    Eor the respondent, James 0. Boyd.

   * i: * * * * * *

The only question at issue was whether or not the petitioner had sustained a temporary disability and a permanent injury as the result of the accident.

Erom the evidence submitted on behalf of the petitioner, it would appear that the petitioner fell backwards across a railroad track, striking his back. The doctors produced by the petitioner based their entire testimony upon the history of the case as given to them by the petitioner for the purposes of testifying at the trial, which, of course, was excluded.

The respondent produced two witnesses, one of whom treated the petitioner upon the day of the alleged accident, and stated he found no objective symptoms of injury, but that from his examination of: the petitioner he came .to the conclusion he was a sick man and was suffering from a gastrointestinal condition.

To corroborate this the petitioner was sent to a roentgenologist, who took twenty pictures of the petitioner over a period of four days, during which time bismuth was given to the petitioner for the purpose of showing up the action of the intestines upon the X-ray plates. These plates were introduced in evidence, and both doctors testified that the petitioner was suffering from a gastro-intestinal condition which had no relation to trauma, and that trauma could not have aggravated this condition.

The petitioner having failed to make out a prima, facie case, and the doctors of the respondent having made an exhaustive examination of the petitioner and their testimony being so explicit that the condition from which the petitioner was suffering was in no way connected with an accident, but was a condition of long standing.

********

Charles E. Corbin,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    GEORGE WASHINGTON, PETITIONER, v. NEW YORK TELEPHONE COMPANY, RESPONDENT.
    Injury to Eyes—Loss of One Eye and Partial Loss of Other Through Being Hit by a Piece of Cement Flying From an Electric Drill Being Used by Petitioner.
    Eor the petitioner, Henry Ca/rless.

    For the respondent, H. A. Kennedy.

   Hs H* H‘ H« ❖ ❖ ❖

1. The petition was duly filed in accordance with the act entitled “An act prescribing liability of an employer to make compensation for injuries received by an employe in the course of emplojunent,” approved April 4th, 1911, and the acts amendatory thereof and supplementary thereto.

2. Process was duly served upon the respondent, who filed an answer to the petitioner’s petition, and at the hearing held on March 31st, 1926, the petitioner’s petition was amended by substituting May 5th, 1925, instead of April 4th, 1925, as the date of the accident and the notice to the employer.

3. The said George Washington, on the 5th day of May, 1925, was in the employ of the respondent as a laborer at the wages of $29.70 per week, and was engaged in removing the paved surface of Broad street, near Pennington street, Newark, New Jersey, so as to allow of the respondent laying certain wires, conduits or pipes beneath the surface of said street, and while engaged in his said duties he was using what is known as an electric drill for the purpose of breaking up the surface of said street, and while engaged in said occupation a piece of cement flew into petitioner’s left eye. Said accident arose out of and in the course of his employment with the respondent.

4. The petitioner continued working without medical treatment until May 9th, 1925, when he was sent to the clinic of the respondent company at Washington street, Newark, New Jersey, where he wont and reported his accident and was referred to the medical department of the respondent at New' York, where he went on May 11th, 1925, and was there examined by the respondent’s physician, and on several other occasions thereafter. Paul Hunt, a fellow-employe, corroborated petitioner as to the happening of the accident, and said he tried to remove the cement from petitioner’s left eye, but was unable to do so, and he further stated that the foreman of the job was nearby at the time of the accident, and that his attention was called to the happening thereof, and I find and determine that the said respondent had actual knowledge of said accident on the day of the happening thereof, or soon thereafter.

5. Petitioner continued working for the respondent until the 10th day of October, 1925. He testified, and it was proved to my satisfaction, that medicine was prescribed for him by the physician of the respondent, to be used by applying drops thereof into the left eye; that he continued to use the said medicine for a number of weeks; that part of the time while he was working he protected the eye with a covering, and that the left eye continued to pain him; it was inflamed and gradually became worse.

6. On or about September 28th, 1925, the petitioner went to the Newark eye and ear infirmary for treatment to his said left ejre, and continued treatment at said institution up to the present time. The condition of his said left eye became such that on November 23d, 1925, the patient was admitted to the said infirmary, his left eye removed and a gold ball inserted in the socket.

7. The right eye of the petitioner was normal until on or about December 15th, 1925, when a severe case of sympathetic ophthalmia of the right eye developed and the petitioner has suffered the loss of a considerable portion of the vision of his said right eye in addition to the total loss of the left eye, all of which said loss of vision and injury I find and determine resulted from the accident and injury which occurred May 5th, 1925.

* ❖ * ■ * * * * *

Harry J. Goas,

Deputy Commissioner.


author: Newman, J.

text:
    JEAN ERNEST NAEGELI, EXECUTOR, ETC., OF JEAN C. NAEGELI, DECEASED, PLAINTIFFS, v. SILK CITY EXCHANGE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided May 10, 1926.
    Contracts—Sale of Goods at Auction—Conditions of Sale Specifically Stated That There was no Guarantee as to Quality or Condition, That All Sales Were Made as Stock was Seen, and was Not to be Set Aside for Error in Description—Defendant Sought 'Relief From Bid Because of Breach of Guarantee as to Quality or Condition—This is in Express Contradiction of Written Terms Which Cannot be Contradicted by Parol Evidence.
    On action at law.
    For the plaintiffs, George W. Flaacke.

    For the defendant, Addison P. Bosenltrans.

   The opinion of the court was delivered by

Newman, J.

This case is presently before the court on the transcript of the pleadings for trial and the stipulation of counsel made in open court, as follows:

“It is stipulated, first, that the defendant’s counter-claim is withdrawn and abandoned; secondly, that the defendant signed immediately after the sale an acknowledgment of purchase, and thirdly, that if upon considering defendant’s brief, with its offer of proof therein contained, the court should be of the opinion that defendant’s defense is inadmissible in the circumstances of the case, the court may direct the entry of judgment for the amount of the check as evidenced by the transcript, with interest from the date and costs.”

It is conceded by the defendant that if the evidence which it seeks to offer is excluded it has no defense. I am of the opinion that the evidence which it seeks to offer is not admissible. The cheek in suit, and upon which payment was stopped, represents a portion of the purchase price of looms upon which it was the successful bidder at an auction, and defendant alleges that it stopped payment thereon because of alleged fraudulent representations of the auctioneer as to the quality and condition of the looms.

It is conceded that the defendant, upon the goods being struck off to it, signed an acceptance of said bid embodying the conditions of sale set forth in the transcript. The important portions of those conditions are as follows:

“In every sale the stock sold is just what is found on the premises and every lot is sold as exhibited, without any guarantee as to the quality or condition.

“The sale of an article will not be set aside because of an error in description, and no allowance will be made on account of condition or quality.”

Upon the defendant signing the acknowledgment of said bid embodying the conditions, the sale thereupon became evidenced by what was equivalent to a written contract between the parties.

The defendant seeks to be relieved from the bid because there was a breach of guaranty or warranty as to quality or condition. The conditions expressly provide that the goods sold were without any guarantee as to quality or condition, and that no allowance will be made on account of condition or quality. These provisions of the conditions are in express contradiction of the terms which the defendant seeks to show, and it seems to be settled in this state that parol evidence is not admissible to contradict the expressed terms of a written contract. Naumberg v. Young, 44 N. J. L. 331; Crowley v. Homan Co., 3 N. J. Mis. R. 968; Banton v. Stanley Automobile Agency, 4 Id. 325, and cases cited in those cases.

The enforcement of this rule sometimes works a hardship, but the wisdom of its enforcement has been demonstrated and sanctioned by years of judicial approbation.

Holding as I do that the proffered evidence is inadmissible, pursuant to the terms of the above stipulation, judgment should be entered for the plaintiff for the sum of $3,000, with interest, from April 20th, 1925.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    VINCENZO MARTORANO, PETITIONER, v. FAIRVIEW STONE CRUSHER, RESPONDENT.
    Injury by Robbers to Night Watchman—Watchman was Robbed but Not the Employer—Watchman Unable to Tell What Happened on Account of Injury to His Head, Probably From Blackjack—Accident to Employe While Being Robbed, Where No Robbery of Employer Occurs and Apparent Intent to Rob Employer Appears is Not an Injury in Course of Employment.
    For the petitioner, A. J. Amove.

    For the respondent, James 0. Boyd.

   # ijc #

From the facts submitted in the case, it appears that the petitioner was employed as a watchman by the Fairview Stone Crusher, and that on the night of December 16th, 1924, at about eleven p. m., he went into a shack maintained by the company and proceeding to light a fire in a pot stove. The shack was eleven feet square. As the petitioner was lighting the stove he heard a window raised in the back of the shack, and immediately walked to the door, which was on the opposite side of the shack from where the window went up, and as he looked out of the door he saw a colored man standing about twelve feet from the door with his hands in his pockets. The colored man asked for some wood to light a fire and was told he could take some from a pile and light a fire in the quarry. The petitioner then states that as the colored man stood with his hands in his pockets he smelled something, felt dizzy, and the next thing he remembers he regained consciousness in the North Hudson Hospital about two weeks later.

On cross-examination it was brought out that the petitioner was robbed of his gun, his blackjack, his money and his watch; that none of the company property was disturbed, nor was anything stolen. The petitioner testified that he did not know what happened to him. The injury the petitioner sustained was a deep laceration on the right side of his head and probably a fractured skull.

Erom the facts submitted in this case, it would appear that the petitioner was unable to testify as to what happened to him. The burden of proof is on the petitioner to prove an accident arising out of and in the course of his employment. In the absence of such proof, a deputy commissioner cannot speculate as to what happened to the petitioner. If we were to assume that the petitioner was assaulted for the purpose of robbing him of his personal effects (which would seem to be all that was stolen at the time of the assault), the case would come within the case of Wather v. American Paper Co., 89 N. J. L. 732; 99 Atl. Rep. 263, wherein the death of a night watchman, as the result of an assault while on duty in the mill, by an assailant whose purpose in going to the mill was to rob deceased, and who didn’t attempt any robbery from the office of the mill, or any destruction of the mill property, or any other mischief or crime other than the robbery of the deceased, was held not to have arisen out of and in the course of the deceased’s employment. There was no evidence in the case at bar to indicate that the petitioner’s assailant contemplated robbing any of the effects of the employer or committed any depredation upon the employer’s property. Therefore, the petition should be dismissed.

% % % # i'fi & t\i #

Charles E. Corbin,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GIUSEPPE FIOKENTINO, PETITIONER, v.. W. H. & F. W. CANE, INCORPORATED, RESPONDENT.
    Traumatic Hernia Alleged—Petitioner Felt Pain, Rested a Few Minutes and Then Continued Work Until Quitting Time— Hernia Not Proven.
    Por the petitioner, Raskin & Hornestein.

    Por the respondent, Edwin G. Kautzmann.

   * * ¡I: * * * * *

It is alleged in the petition that the petitioner suffered a hernia on October 1st, 1925, while in the course of the employment with the respondent.

The petitioner, in his testimony, stated that on October 1st, 1925, at about eleven-fifty a. m., with the aid of a fellow-employe, lifted a beam, and in so doing felt a pain in his right groin. The petitioner let his end of the beam down to the ground and sat down for ten minutes, after which he had his lunch. He then continued to work after the lunch period until quitting time, which was at four-thirty p. it., and then went home. After he arrived at his home the petitioner for the first time examined himself -and found a lump or a bulging in his right groin.

There is no claim of a real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall, nor has there been any evidence adduced to establish a traumatic hernia. The burden of proof is therefore upon the petitioner- to furnish conclusive proof that the hernia was immediately caused by such sudden effort of severe strain that—first, the descent of the hernia immediately followed the cause; second, that there was severe pain in the hernial region; third, that there was such prostration that the employe was compelled to cease work immediately; fourth, that the above facts were of such severity that the same was noticed by the claimant and communicated to the employer within twenty-four hours after the occurrence of the hernia; fifth, that there was such physical distress that the attendance of a licensed physician was required within twenty-four hours after the occurrence of the hernia, as is required under the workmen’s compensation statute. Section 2, paragraph llx.

The petitioner failed to establish an immediate descent of the hernia following the cause, and, therefore, has failed to satisfy the burden placed upon him, and the petition must be dismissed.

Charles E. Corbin,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JAMES H. ROSECRANS, PETITIONER, v. ROBERT REINER, INCORPORATED, A CORPORATION, AND THE FIDELITY AND CASUALTY COMPANY, A CORPORATION, RESPONDENTS.
    Physician Employed by Employer Does Not Come Within the Statute Authorizing Bureau to Fix Compensation—Right of Action for Payment for Services Rendered Under Such Employment is in Common Law Courts—Bureau May Fix Compensation Only When Employment of Physician is by Employer.
    For the petitioner, Lichtenstein, Schwartz & Freidenberg.

    For the respondents, Edwards & Smith.

   # :¡í # #

The facts in this case were stipulated and agreed upon, which briefly are as follows:

Dr. James H. Eosecrans, petitioner, was engaged by respondent Eobert Eeiner, Inc., to treat medically one Eichard Spoerl, who suffered an accident arising out of and in the course of his employment. Dr. Eosecrans rendered services and demanded from respondent payment of his bill, which amounted to $710. The respondent insurance'carrier, fidelity and Casualty Company, was aware of the fact that petitioner was treating said Eichard Spoerl. Petitioner not being paid his bill for medical services, instituted proceedings in this bureau by means of a pettion for the payment of services rendered. The respondents in this proceeding put in the defense that the workmen’s compensation bureau is without jurisdiction to hear this case on the ground that it involves merely a contractual relationship between petitioner and respondent, and that petitioner’s remedy is in the common law court. Therefore, the question of jurisdiction is the only one at issue.

Petitioner bases his contention on the fact that this bureau has jurisdiction of paragraph 14 of the laws of 1911, chapter 95, as amended by chapter 245, laws of 1922, wherein it states: “The employer shall not be liable to furnish or pay for physician’s or surgeon’s services in excess of $50, and in addition to furnish hospital services in excess of $50, unless the injured workman or physician who treats him, or any other person on his behalf shall file a petition with the workmen’s compensation bureau stating the need for such physician’s or surgeon’s services in excess of $50.”

In my opinion, considering the above quotation in conjunction with the remaining section of the paragraph, which deals with medical services, this petition is filed for the- sole, purpose of enlarging the obligation of the employer to furnish medical treatment, and that the petition when filed by the physician is merely filed in behalf of the injured workman. The filing of this petition for an extension of the medical services in nowise affects the contractual relations between the various parties. It creates no new rights but merely enlarges the employer’s obligation, granting the injured person the benefits of extended medical service.

A careful reading of the case , of Moore v. Deres, reported in 97 N. J. L. 378, and 117 Atl. Rep. 480, and the case of Dias v. New Jersey Manufacturers Casualty Insurance Co., reported in 132 Atl. Rep. 101, makes plain that the various provisions of the Workmen’s Compensation act are applicable only to the parties incident to the contract of employment, namely, employer and employe, and it is clear from the above citations that a third person has no rights enforceable under the provisions of the Workmen’s Compensation law.

My interpretation of section 14 of the Compensation act, which deals with medical services, is as follows: When the employer fails to render medical services in accordance with the provisions of the Compensation act, and the injured workman secures the services of a physician, then the injured workman has a right to file a petition with the workmen’s compensation bureau for reimbursements for obligations incurred in securing this medical service, as set forth clearly in the case of Moore v. Deres: “The provision for enforcement in the name of employe clearly negatives any right to enforcement in the name of a creditor of the employe as is the present case.' The employe must bring the suit even though he may be under a moral obligation to spend the money recovered for the purpose for which the statute provides it.”

When, however, the employer renders the medical service by means of a physician employed by him, then the right of action that the physician may have for his services is in the common law court, against the employer, but not in the workmen’s compensation bureau, as -clearly stated in the case of Dias v. New Jersey Manufacturers Casualty Insurance Co., as follows: “The parties are bound by all the terms of the statute, and only parties to the statutory contract are bound by its terms or entitled to its benefits. An examination of the statutes demonstrates that only the employer and the employe are parties to the statutory contract. The act of 1931 implies a contract only as between employer and employe, and makes provision quite inapplicable to third parties.”

A study of the Workmen’s Compensation act fails to reveal any provision under which an action may be maintained on the part of any other than the injured employe or his dependents. In the absence, therefore, of any provisions for legal procedure by some other person, such right cannot be assumed.

I do, therefore, find that the workmen’s compensation bureau is without jurisdiction to hear this case, and do render judgment in favor of the respondent and against the petitioner, and order that the petition be dismissed.

Charles E. Corbin,

Deputy Commissioner.


author:
Hakby J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PATRICK W. HACKETT, PETITIONER, v. MARTIN H. LANGE, DEFENDANT.
    Femoral Hernia—Statutory Requirements All present.
   ❖ # ❖ * - ❖ * * *

1. That some time during the forepart of November, 1925, the said petitioner was employed by the respondent as a plumber and steam Stter, working at the Chevrolet export plant No. 2, Grove street, Bloomfield, New Jersey, at a weekly wage of $60.50. On November 19th, 1925, while engaged in the duties of his employment, said petitioner was pulling up on a fitting when the wrench which he was using slipped and struck him in the groin, on the right side. This accident immediately brought on an injury known as femoral hernia.

2. The testimony produced at the trial showed that the petitioner was rendered semi-unconscious and unable to stand up and continue his work. A fellow workman had to assist him to the office of his employer, and the petitioner notified his employer of the accident the same afternoon. Petitioner, on the same day, consulted I)r. Morgan D. Hughes, a licensed physician of the town of Bloomfield, New Jersey, who, after an examination, informed petitioner that he was suffering from the above-mentioned femoral hernia, and that an operation was necessary. Petitioner later submitted to an operation, and paid the sum of $220 for the operation and hospital expenses incidental thereto1. Petitioner was unable to return to his employment until December 21st, 1925.

3. The testimony offered conclusively proved that the hernia was immediately caused by such effort or severe strain that the descent of the hernia immediately followed the cause; that there was severe pain in the hernial region; that there was such prostration that petitioner was compelled to cease work immediately; that the above facts were of such severity that the same was noticed by petitioner and communicated to the employer within twenty-four hours after the occurrence of the hernia; that there was such physical distress that the attendance of a licensed physician was required within twenty-four hours after the occurrence of the hernia.

4. In my opinion the section of the hernia clause which provides “that there was such prostration that the employe was compelled to cease work immediately,” means that he became incapacitated to the extent that he had to stop work at once, and not necessarily that he remained prone on the floor, practically unconscious, and unable to get up. The word “prostration” is modified by the word “such,” which indicates that the entire clause must be considered in conj unction with the qualifying word “such.” Accordingly, if there is such “weakness” or depression' of the bodily functions that, as a result of the accident, he is compelled to cease work immediately, I am of the opinion he has fulfilled the third requirement of the act. Such was the case here, and having complied with the other provisions of the act he is entitled to an award.

Hakby J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MICHAEL BOGDOLL, PETITIONER, v. J. P. WHITE COMPANY, RESPONDENT.
    Death Resulting From Fail—Determination of Amount of Compensation Due the Several Dependents.
    For the petitioner, Ilen-ry M. Hartmann.

    For the respondent, Raymond E. Taylor.

    SUMMARY OR FACTS.
    That on August 22d, 1925, the decedent, Alexander Bog-doll, while engaged in attending the flow of concrete at the top of a narrow concrete shute elevated eighty-five feet from the ground, and while changing the directions of the shute, the same broke and the decedent fell to the ground and was instantly killed.
    The petitioner is entitled to compensation, the decedent having left him surviving the following members of his family:

      Date of Birth

    Michael Bogdoll.....Father.......June 9, 1881
    Marcella Bogdoll ....Mother ......Oct. 21st, ,1882
    Edward Bogdoll.....Brother......March 15th, 1908
    Henry Bogdoll......Brother......May 3d, 1909
    Bernard Bogdoll ....Brother......June 8th, 1911
    Marcella Bogdoll ... .Sister .......March 8th, 1916
    Eleanor Bogdoll.....Sister .......March 3d, 1919
    A review of the facts set forth above makes plain that, in so far as Edward and Henry are concerned, no claim for compensation can he entertained. .The wages earned by these two must, however, be considered in arriving at the cost of maintenance of those of the family who may be classified as partial dependents in this case.
    The status of the father, mother, brother and sisters under sixteen is definitely established in the case of Oonners v. Public Service Electric Go., 97 Atl. Rep. 792, in which case the Supreme Court of New Jersey affirmed the judgment of the Court of Common Pleas, who held that the father, as well as the other members of the family, must be considered a dependent, even though he was earning $26.40 a week.
    The soundness of this ruling is apparent when the wages of the father and other wage earners are all placed in a common fund, so that the father, as well as the other members of the family, feels the loss of the withdrawal of the contribution of the deceased.
    In the present case the total income of the family was $102. This indicates $12.75 as the cost of maintenance of each of the eight members. Five of these must be classified as partial dependents whose support cost $63.75. This amount apportioned among the wage earners, according to their several wages, shows that the deceased contributed weekly toward the support of his father, mother, Bernard, Marcella and Eleanor, the sum of $25.62, which sum must be used as the basis of the calculations determining the weekly compensation rates.
    DETERMINATION.
    I do find and determine, therefore, that Alexander Bogdoll was, on August 22d, 1925, in the employ of the respondent, J, P. White Company; that his wages were $41.25 per week; that on said date he met with an accident arising out of and in the course of his employment which resulted in his death on said date; that the employer had due knowledge of the injury, which was not intentionally self-inflicted nor due to intoxication; that he left surviving his father, mother, brother Bernard, sister Marcella and sister Eleanor, all of whom were partially depending upon him for support.
   ORDER.-

It is, therefore, on this 20th day of May, 1926, ordered that judgment final he entered in favor of the petitioner, and that the respondent pay, or cause to be paid, to the petitioner, compensation as follows:

$14.09. per week for............. 93-5/7 weeks

$12.81 per week for next ensuing.. 206-2/7 weeks $10.25 per week for next ensuing.. 41-4/7 weeks

$8.97 per week for next ensuing.. 155-5/7 weeks

Covering a total period of.... 497-2/7 weeks

This compensation shall begin as of August 22d, 1925, the first weekly payment due August 29th, 1925. All the compensation which has become due since August 29th shall be paid in one sum.

The respondent shall also pay to the petitioner $150 on account of burial expenses, and also $300 as counsel fee to the petitioner’s attorney.

W. E. Stubbs,

Deputy Commissioner of Compensation.


author:
Chaeles E. Coebin,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MICHAEL BILOKIEWICZ, PETITIONER, v. CENTRAL RAILROAD COMPANY OF NEW JERSEY.
    Round House Employe Injured While Working on an Engine Preparing to Engage In Interstate Commerce—Held, Bureau Without Jurisdiction.
    Eor the petitioner, Samuel Greenstone.

    For the respondent, Theodore J. E. Brown.

   ********

1. The petitioner was employed by the respondent, Central Railroad Company oí New Jersey, on September the 4th, 1924, as round house employe. At the time of this accident he was engaged in putting coal on the fire, and while so doing a piece of coal fell from the top of the tank. At this time he was working on B. & 0. engine 4604, which engine had arrived at Jersey City at two thirty-six a. m., with train known as P.D.No. 4 from Baltimore, and left the same day with train known as DP No. 5 for Baltimore, leaving Jersey City at seven twenty-five p. m. This engine was regularly engaged in this service.

2. It is further stipulated and agreed that the said Michael Bilokiewiez was employed as round house employe on January the 12th, 1925, and fell from engine No. 1.63, said engine being in the act of taking sand, having just completed taking coal from under a shute. This engine was engaged in interstate commerce, as it was assigned to trains No. 402 and No. 403, which are known as “Somerville Locals.” At the round house a daily register book is kept. In this book it shows that Engineer Harry Dow and Fireman J. J. Harrington had signed said register book and were actually in active interstate sérviee, as the movement which they were then making was to take on coal and sand and proceed to the Jersey Central train shed, the terminus of the Ceneral Railroad Company of New Jersey, and from thence return to Somerville with passengers enroute from New York to various points in New Jersey.

In view of the above, it is apparent that the petitioner was engaged in interstate, commerce at the time of his injury, and the workmen’s compensation bureau of the department of labor of the State of New Jersey is without jurisdiction to award compensation to the petitioner, and, therefore, the petition is dismissed; •

Chaeles E. Coebin,

Deputy Commissioner.


author: Ingeesoll, V. C.

text:
    Harry Coulter et ux., complainants, v. William Stern et ux., defendants.
    [Determined August 25th, 1926.]
    Sale of Land—Specific Performance—Contract for Sale Not Signed by Wife—Husband Admits Willingness to Execute Deed—Question Whether There Should be Abatement of Purchase Price or Indemnity Against Inchoate Dower—Held, Court Will Refuse to Decree Specific Performance Where Wife Has Not Joined in Contract—Exception, Where Wife's Refusal was Brought About by Connivance of Husband, Not Available Here.
    On bill for specific performance. On final hearing.

      Messrs. Cole & Dole, for the complainants.

      Messrs. Gassman & Gottlieb, for the defendants.
   Ingeesoll, V. C.

Bill is filed against husband and wife'for the specific performance of a contract for the sale of certain real estate, which contract was signed by the husband only.

The bill was dismissed so far as the wife is concerned. The husband admits his willingness to execute a deed.

The question for consideration is: Whether complainants-are entitled to a decree with either an abatement or indemnity for the purchase price, or indemnity against the inchoate dower of the wife.

The language of Vice-Chancellor Leaming in Bateman v. Riley, 72 N. J. Eq. 316 (at p. 318), is here applicable.

“It has been the uniform practice of this court to refuse-to decree the specific performance by a husband of a contract, for the sale of land, with either abatement from the price or with indemnity, where a wife has not joined in the contract of sale, and refuses, of her own volition, to join in a deed. Young v. Paul, 10 N. J. Eq. (2 Stock.) 401, 418; Hawralty v. Warren, 18 N. J. Eq. (3 C. E. Gr.) 124, 128; Pinner v. Sharp, 23 N. J. Eq. (8 C. E. Gr.) 274, 282; Reilly v. Smith, 25 N. J. Eq. (10 C. E. Gr.) 158, 159; Peeler v. Levy, 26 N. J. Eq. (11 C. E. Gr.) 330, 335; Blake v. Flatley, 44 N. J. Eq. (17 Stew.) 228, 229; McCormick v. Stephany, 61 N. J. Eq. (16 Dick.) 208, 224.”

The complainants insist that in this case, Schiefrin v. Wilensky, 92 N. J. Eq. 109, should be followed. • Not so. In that case the court was satisfied that the refusal of the wife was not her own act, but was brought about by the connivance of her husband. In the present case the court does not find the facts to be as found in the cited case.

Complainant may take a decree for conveyance from the husband without abatement or indemnity, or the bill will be dismissed.


author: JBebby, Y. C. Bekky, Y. C.

text:
    John Tomcsik et ux., complainants, v. Edward Kramer and the Metuchen Realty and Improvement Company, defendants.
    [Decided September 30th, 1925.]
    Conveyances—Equitable Mortgage—Complainant Had Deed to Property Which He Gave to Another, Unrecorded, to Secure Loan—Other Loans Were Made by Another, and Original Loan Paid Off, the Deed Finally Passing Into Hands of the Other—Transaction Reviewed and Deed Held to be an Equitable Mortgage—Matter Referred to a Master for an Accounting.

      Mr. Leo S. Lowenkopf, for the complainants.

      Mr. Daniel H. Applegate and Mr. David M. 8atz (representing Mr. Frederic M. P. Pearse), for the defendant Edward Kramer.

      Mr. Leo Goldberger, for the defendant Metuchen Realty and Improvement Company.
    Mr. Goldberger—I move to dismiss the bill on the ground that there are no facts alleged in the bill where we are to be charged with any fraud or any collusion with Mr. Kramer. Furthermore, granting that there was some fraud, the Metuchen Realty Company has sold this property to the party in possession; there is no charge in the bill alleging that this party in possession knew of any of the so-called fraudulent transaction. Therefore, being an innocent purchaser, this bill would have no effect on the party who bought this property from the Metuchen Realty and Improvement Company.
    Court—The Metuchen Realty and Improvement Company had notice of the whole transaction. You are making a motion on behalf of the Metuchen Realty Company?
    Mr. Goldberger—Yes.
    Court—The motion will be denied. I will hear the testimony.
   JBebby, Y. C.

(orally).

The complainant Tomesik has made a very definite statement up to this time to this effect; that he owned four lots; that in 1917 he traded these four lots to the Metuchen Realty and Improvement Company and took five lots and some four hundred and some dollars in exchange; that he only got a small portion of that money—something less than a hundred dollars, because he owed Greenbaum the difference, and Greenbaum kept that difference to repay him what he owed him, and he received a deed for five lots, which was given to him in the lawyer’s office, and that deed he put in his pocket and kept there; the deed was unrecorded; he kept it for two months; after that he went back to Greenbaum and borrowed $300, and then Greenbaum asked him for security and he gave him the unrecorded deed. Subsequently, he went to Kramer and borrowed $300, for which he got the check of $297, and with that money he intended to build an addition to his house. He lost the money, or a part of it, at least, and he went back to Kramer for $300 more, telling him that he wanted to pay that money to Greenbaum, and pay off Greenbaum $300 that he owed him. He claims that Kramer paid the $300 direct to Greenbaum and that he never got it. He also said that he made an application for a building and loan association mortgage. He does not know very definitely why that loan wasn’t granted, but he agrees that he didn’t get it. He afterwards borrowed another hundred dollars from Kramer, and all this time, so he says, Greenbaum had the unrecorded deed which he got when he exchanged the lots. That is the extent to which the testimony goes, as I understand it now. Whether he is right or not, will depend upon what some of the other witnesses say, I suppose.

Bekky, Y. C.

(orally).

- The major portion of the facts in this case I recited this morning. I am not going to recite these particular facts. In announcing my decision the stenographer may repeat them for the purpose, of this record at this time.

In addition to the facts that I recited, it appears by the testimony and other evidence submitted that the complainant had a loan account with Greenbaum for the Metuchen Realty Company and had a book in which were recorded payments on account of that loan account as they were made. This book was introduced in evidence. There was also an account book showing payments made to the defendant Kramer. It appears that the defendant Kramer made some advances to the complainant, and in 1919, according to his own testimony, and for his own protection, he induced the complainant to execute a paper, which has been introduced in evidence and marked Exhibit D-2, by which the.complainant assigned his right, title and interest to the five lots in question to the defendant Kramer. From my own examination of the complainant, I am satisfied that neither he nor his wife understood the purport of that paper when it was executed. The defendant Kramer testifies that he had it prepared by a lawyer; that he did not have the lawyer explain the meaning of the paper to the complainant, but that he sent it to the complainant by his son, and two days afterwards the complainant and his wife came to Kramer’s store and executed the paper. Beyond question, these complainants, who are of low mentality, unfamiliar with the English language, and difficult to understand, did not appreciate the purport of that assignment when they made it. It appears that after that assignment was executed the defendant Kramer paid to the Metuchen Eealty Company the sum of, approximately, $260, and obtained from the Metuchen Eealty Company a deed conveying the five lots in question to Kramer. An inspection of the deed plainly discloses the fact that the date of the deed and the name of the grantee, and the date of the acknowledgment and the name of the grantee, as it appears on the endorsement of the deed, have all been changed since the deed was originally written. This deed, Kramer says, he received through the mail from the Metuchen Eealty Company, and afterwards had it recorded in the Middlesex county clerk’s office. This, to my mind, is the strongest corroboration of the complainant’s story, which appears in the whole case, the complainant claiming that he received the deed in the lawyer’s office at the time the exchange of properties was made, and this testimony stands undenied. He states that this deed was received and placed by him in his coat pocket and that he retained possession of it for some months afterwards, until he obtained a loan from Greenbaum or the Metuchen Eealty Company, when he delivered it, the deed never having been recorded, to Greenbaum. Under these circumstances, it seems to me that I have no alternative bat to advise a decree in favor of the complainant, directing in that decree that an account be taken of the moneys paid out by Kramer on aecount of this property, the moneys received by him for rents or otherwise. The record title still remains in Kramer, although there appears to be a contract of sale with the Metuchen Eealty Company. The Metuchen Keaity Company certainly had notice of the claim of the Tomcsiks, because under the facts as I find them that company had possession of Tomcsik’s deed, and I believe changed the name of the grantee in that deed, or rather erased the name of the grantee in the deed and inserted Kramer’s name in it when it was mailed to him. The rule in such cases is too plain to require any citation of authorities. At most the deed which the defendant Kramer has, and this assignment, even if it were a valid assignment, would constitute, in my judgment, an equitable mortgage. The rights of Tomesik could not be foreclosed without foreclosing that equitable mortgage.

I will refer this matter to a master for the purpose of taking an account, as I have already indicated, and I will advise a decree for complainants.

The testimony on the part of Mr. Kramer is that he advanced $297, $300 and an additional sum of $263.37, and $100 in addition. While there is some doubt in my mind as to the correctness of that amount, yet I feel that the weight of the testimony, not in the number of witnesses, because they are evenly balanced, but I am rather inclined to believe that Mr. Kramer advanced the $300 in cash which he says he advanced. Although the complainant denies that, I think he did. I think Mr. Kramer is telling a straight story on that; so that, I think, there is no question that Mr. Kramer is entitled to a credit for the four different sums he paid, namely, the $297, the $300, the $263.37 and the $100. In addition to that he is entitled to a credit for whatever he has paid by way of repairs, interest or insurance. He is entitled to interest on his own advanced, including the taxes which he has paid. Whatsoever he has expended in money for repairs he is entitled to that. I will allow him for actual expenditures, but I cannot allow him for anything else.


author: Kochek, Advisoky Mastek.

text:
    Essex County Orphans Court.
    In the matter of the estate of James E. Healey, deceased.
    [Decided September 7th, 1926.]
    Wills — Accounting — Ancillary Administrator—Executor Appointed Ancillary Administrator in New York—Account as Ancillary Administrator Allowed in Kings County, New York—Account Filed in New Jersey Court Contained Much of the Matter Included in the Ancillary Account, and it Appeared That the Two Accounts Were Inextricably Mingled— Primary Right of Administration in the Courts of Domicile, and Subject to Jurisdiction of the Courts of the Domicile— Administrator Must Settle His Accounts in Jurisdiction Where He Takes Possession of Assets Under Authority of Court Appointing Him—Distribution May be Made by Ancillary Administrator, or He May Remit Funds to Domiciliary Administrator for Distribution; When Made by Ancillary Administrator it is Regulated by Laws of the Domicile of Deceased—Strictly, Accountant Should Restate His New York Account and File Here a New Account, or at Least File a Supplementary New York Account; but Substantial Justice May be Had in This Case if Accountant Restated His Account Here in a Way to Avoid Duplications Either of Charge or Discharge.
    On exceptions to account.

      Mr. Lionel L. Meyers, for the accountant.

      Mr. Thomas A. Kenny, for the exceptant.
   Kochek, Advisoky Mastek.

James E. Healey, late of the county of Essex, died testate, of a will which was duly admitted to probate by the surrogate of the county of Essex, and letters testamentary thereon issued to Lionel L. Meyers, the executor therein named. The testator was engaged in the business of a wholesale produce merchant in the city of New York, and in order to liquidate the business, and collect other assets in the State of New York, the said Lionel L. Meyers was appointed ancillary administrator by the surrogate’s court of the county of Kings, of the State of New York, and he, as such ancillary administrator, duly presented his account to the surrogate of the county of Kings, which account was sworn to on June 19th, 1925, and on the 11th day of November, 1925, the surrogate’s court of the said county of Kings made its decree allowing said account and awarding him $855.45 as his commissions as well as the sum of $280.44 counsel fees And expenses. The decree further fixed the balance in accountant’s hands at the sum of $17,426, and directed that the sum be held by him for distribution in accordance with the terms and provisions of' testator’s will.

On December 18th, 1924, accountant filed his account in this court as executor, which said account includes most if not all of the items afterward appearing in the New York account. On January 22d, 1926, accountant filed an amended account in this court as executor, to which last account exceptions were filed by Margaret Healey, the residuary legatee under the said will of James E. Healey.

In all of these accounts, both that filed in New York and those filed in New Jersey, New York assets and New Jersey assets, the expenses of administration in the New York proceedings, as well as those in New Jersey, are inextricably mingled.

The primary right to administration of a decedent’s estate is in the country or state of his domicile, and the distribution of the estate is regulated by the law of his domicile. Normand v. Grognard, 17 N. J. Eq. 425; Griswold v. Kelley-Springfield Tire Co., 94 N. J. Eq. 308, 316.

It is settled that every grant of administration is strictly confined in its authority and operation to the limits of the territory of the government which grants it, and does not, de jure, extend to other countries. It cannot confer, as a matter of right, any authority to assets of the deceased in any other state, and whatever operation is allowed to it beyond the original territory of the grant is a mere matter of comity, Where it becomes necessary to obtain ancillary letters in a state other than that of the domicile for the purpose of collecting debts, the inventory of the ancillary administrator should include only the property within the jurisdiction where his letters are granted. The inventory of the executor or administrator of testator’s domicile should include only property within the latter jurisdiction.

It is further well settled that an administrator must settle his accounts in the jurisdiction in which he takes possession of assets under the authority of the court appointing him, and where there is administration in different states, each portion of the assets must be administered in the state where possession thereof was taken. The fact that the same person was appointed administrator in each jurisdiction does not, of course, affect this rule. Banta v. Moore, 15 N. J. Eq. 97; Normand v. Grognard, supra; Vaughn v. Northrup, 15 Pet. 1; Babbitt v. Fidelity Trust Co., 70 N. J. Eq. 651.

Distribution of an estate may be made by an ancillary administrator, or the latter may transmit the balance to the domiciliary administrator for distribution. In re Dellinger, 94 N. J. Eq. 409, 420; Normand v. Grognard, supra.

If the fund is distributed by the ancillary administrator such distribution is regulated by the laws of the domicile of the testator or intestate. Normand v. Grognard, supra; Griswold v. Kelley-Springfield Tire Co., supra.

Thus, in the case of Banta v. Moore, 15 N. J. Eq. 97, it was held that where ancillary administration was granted in Hew York upon the estate of a person domiciled in Hew Jersey, that the ancillary administrator is not bound to account to the Hew Jersey administrator unless the assets in the hands of the ancillary administrator are needed for the purpose of the payment of debts in Hew Jersey. See, also, Normand v. Grognard, supra.

In the account in question, accountant, as ancillary administrator, has filed with the surrogate of Kings county, Hew York, a complete account of his administration of this estate, charging himself with not only assets collected by him in Hew York as ancillary administrator, but also with assets of the estate in New Jerse]^. On the other hand, he has prayed allowance for not only expenses and disbursements in connection with his ancillary administration, but with items such as the physician’s bill during testator’s last illness, the expenses in the surrogate’s court in this state for probating testator’s will, as well as other items properly payable by him as executor by virtue of the letters testamentary issued to him by the surrogate of the county of Essex of this state.

Accountant’s account as ancillary administrator has, as has been seen, been duly allowed by the surrogate of Kings county, New York. The account filed in this court is in great part a copy of that filed in New York, with some small additional charges and a few items of discharge, among which are items of attorneys’ fees paid to New York attorneys and fees paid to a public accountant for services in connection with the estate, to Avhich last two items exceptions have been filed.

Inasmuch as it is apparent that the services included in these charges Avere rendered in connection with the New York accounting, AAdiich was duly allowed by the surrogate of Kings county, New York, they must be disallowed by this court even though they may not have been presented to the surrogate of Kings county at the time of the allowance of the account by him. Accountant finds himself in this predicament; he has, as ancillary administrator, included in his New York account items in connection with the administration of the estate both in the nature of charges and discharges AAdrich he could only properly receive or pay under the authority of the letters testamentary granted him in this state, and has had the account thus made up allowed by the court of New York, and now presents to this court an account made up of items both as to charge and discharge in connection AAÚth the administration of the estate by him as executor in NeAv Jersey and as ancillary administrator in New York.

Strictly speaking, accountant should restate his New York account, charging himself with only such assets as were collected by him in that state and praying allowance for items of disbursement in connection with his ancillary administration and take a decree in the New York surrogate’s court fixing the balance in his hands as an ancillary administrator, to be administered by him as executor in New Jersey, and should then file in this court a new account charging himself with the balance in his hands as ancillary administrator as fixed by the New York account, and proceeding to further charge himself with New Jersey assets and praying allowance for claims paid to New Jersey creditors, or it would seem that accountant might file a supplementary account as ancillary administrator in the New York court, which has already accepted jurisdiction in the allowance of the claims of New Jersey creditors, and proceed to distribute the balance in his hands pursuant to the order of that court, which has already been seen is within its jurisdiction.

It would appear that substantial justice will be accomplished if accountant be required to restate his account filed in this court as executor, charging himself in the first instance with the balance shown in the New York decree, adding thereto such New Jersey assets as may have come to his hands not set up in the New York account, and praying allowance for all disbursements made by him in connection with the administration of the New Jersey estate, not prayed allowance thereon.

This court will certainly decline to consider expenditures for counsel fees and to expert accounts rendered in connection with the preparation of the New York account which has already been allowed by the courts of that state. That such services were rendered in connection with the New York account is apparent from the fact that the New Jersey account is a mere copy of the former..

If accountant has perchance incurred expenses in connection with the New York accounting which he has not included in that account, it is clear that his only remedy is by application to the court having jurisdiction over that account, as this court can only consider such facts as pertain to the administration of the estate in this state.

A decree will be advised in accordance with the foregoing.


author:
Habby J. Goas,
      Deputy Commissioner:

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GERTRUDE MIDDLETON, WIDOW OF JOHN MIDDLETON, PETITIONER, v. GLOBE AUTOMATIC SPRINKLER COMPANY, A CORPORATION, RESPONDENT.
    On petition, &c. On order dismissing petition.
   It appearing to the court that the above matter has appeared, from time to time, on the list of eases for trial in the workmen’s compensation bureau, and that at such times the petitioner has not appeared ready to proceed with her ease, and it further appearing that said respondent has been ready on such occasions, and it further appearing that due notice of this application to dismiss has been duly served upon the attorney for the petition, and good cause being shown therefor, it is, on this 6th day of October, 1926, ordered that the petition for compensation heretofore filed in the above case be and the same is hereby dismissed without costs to either party as against the other.

Habby J. Goas,

Deputy Commissioner: