author: Case, J.

text:
    CITY OF JERSEY CITY, PROSECUTOR, v. STATE WATER POLICY COMMISSION AND OAK RIDGE LAKE PARK REALTY COMPANY, INCORPORATED, A CORPORATION, RESPONDENTS.
    Argued October 3, 1935
    Decided December 11, 1935.
    Before Justices Case and Bodine.
    Bor the prosecutor, James A. Hamill and Charles A. Rooney.

    Bor Oak Ridge Lake Park Realty Company, Incorporated, King <& Vogt, Harry V. Osborne and Harold A. Price.

    Bor state water policy commission, David T. Wilentz, attorney-general, and J. Raymond Tiffany.

   The opinion of the court was delivered by

Case, J.

The writ brings up a permit, with incidental proceedings, granted by the state water policy commission to Oak Ridge Lake Park Realty Company, Incorporated, for the construction of a dam known as Oak Ridge Lake Dam near Woodstock on Rockaway River in Morris count}’.

The realty company, acting under chapter 243 of the laws of 1912 (Cum. Supp. Comp. Stat. 1911-1924, p. 3800, § 232-37f) and section 11, ei seq. of chapter 261 of the laws of 1929 (Cum. Supp. Comp. Stat. 1925-1930, pp. 1943 et seq., § 232-31s(11) made application to the state water policy commission for permission to construct its dam in accordance with plans and specifications then filed. The application was opposed by the city oí Jersey City, whose water supply is impounded from the waters of the Rockaway river in a reservoir at Boonton, twentjr-three miles below the dam site. The stated reasons for the opposition were, first, that the project embodied danger to the public health and, second, that the erection of the dam would result in diverting a large amount of water and thus would deplete the potable water supply of Jersey City. Testimony was taken and numerous exhibits were received in evidence, following which the water commission issued its permit and approved the plans and specifications for the dam upon certain named terms and conditions. In addition to the conditions that may be said to be routine to such an application there were others entitled “Special Conditions” introduced by the recital that they were imposed to the end that the possibility of pollution of potable waters might be minimized. The special conditions embraced requirements that the lake resulting from the building of the dam should be deepened to and maintained, at all points beyond five feet of the shoreline, at a depth of at least two and one-half feet below the spillway elevation; that all owners, grantees, lessees and occupants of property surrounding the lake should be limited in respects specifically described concerning the use of adjacent lands; that no privy or similar receptable should be permitted within one hundred feet of the nearest portion of the lake and that such a structure at a distance of more than one hundred feet should be built, and maintained at all times, in a manner satisfactory to the commission and to the state board of health so as to prevent extraneous matter from flowing over or upon the surface of the ground; that excremental matter be disposed of in manner stated; that the lake should not be opened to the general public but that its use should at all times be restricted to owners of surrounding property and to the members of their families and their bona fide guests, and that all deeds, grants, leases or other instruments to be thereafter executed by the applicant pertaining to the property owned by it and forming a basis for the use of the lake should have these conditions legibly printed therein with the requirement that the same should be strictly observed. The conditions were assented to by the applicant.

The prosecutor first contends that the commission failed to receive and consider lawful testimony concerning the effect which the erection of a dam and the impounding of the waters of the Kocltaway river would have upon the quantity and quality of the flow of the river. This grounds in a statement made by the chairman of the commission at the beginning of the hearing wherein it was said that the jurisdiction of the commission over structures such as that involved in the application is confined to the imposition of such conditions, if any, as shall be necessary to preserve the channel and provide for the flow of water therein to safeguard the public against danger from the water impounded or affected by the structure, and that jurisdiction over the contamination of such water, after impounding, is for some other department. The prosecutor contends that that position is not sustained by the statute and that it was the duty of the commission to consider, not only the questions thus conceded to be within its province, but all other matters having to do with the quantity and quality of the flow of the river. It is to be recalled that the applicant was not seeking a new or additional source of water supply under the earlier portion of chapter 267, Pamph. L. 1929, supra, particularly beginning with the eighth paragraph, but was seeking the approval of its plans for building a dam with no purpose to- draw any supply from the impounded waters. The only interest that the city of Jersey City had in opposing the application was to preserve the quality and quantity of its water at the Boonton reservoir many miles below the locus in quo. The fact is that the commission deviated from its initial position, received all of the testimony-—-considerable in character and extent—submitted on the issue that the project would deleteriously affect the quality of the water and reasonably safeguarded the prosecutor’s water supply from pollution at the projected dam; and the applicant forthwith, in writing, formally accepted the conditions and agreed to abide by and fulfill them. We think that prosecutor’s objective was attained.

It is next said by the prosecutor that the erection of the dam will materially diminish the water supply of the prosecutor. This is a summarization of prosecutor’s contentions and proofs to the effect that the damming of the water and the consequent increase of water surface would result in an added loss by evaporation of approximately fifty thousand gallons daily. That factual assertion was traversed by the applicant; and credible testimony by competent engineers was introduced to the effect that the loss by evaporation wonld he more than made up by the saving of ground loss due to the covering by water of long grasses in a marshy area near the stream. Aside from that, the maximum loss contended for by the prosecutor is but .0008 1-3 of prosecutor’s average normal consumption and .0025 of the daily intake at the reservoir. Prosecutor’s apprehension apparently is not that the present project will result in serious harm or loss but that the multiplication of such enterprises will do so, and therefore prosecutor has adopted the policy of opposing all such applications; to Avhich it need only be said that each application must stand upon its own facts and be determined as and when presented. The point is not sustained.

Appellant’s third point is that the erection of the dam and the impounding of the waters will impair the quality of the water of the prosecutor for potable purposes. We have already indicated our conclusion that the prosecutor’s water supply is reasonably protected from pollution.

It is next said that the decision of the board is unreasonable and is not supported by credible evidence. That point, we think, is not well made.

Finally, it is contended that the commission in granting the permit acted contrary to public policy and the interests of a large and growing section of the state and abused its discretion. This point depends for its premises upon an affirmative determination of one or more of the preceding points; and as the earlier points have all been resolved against the prosecutor, so this one must be also.

We find that the prosecutor has not been injured in any of its rights and that it is not necessary for us to determine the extent of the authority of the commission over matters having to do with the quantity and quality of the flow.

The Avrit is dismissed, with costs.


source: Caselaw Access Project

author: Egan, Y. C.

license: Public Domain

text:
    New Jersey State Firemen's Association and Jersey City Firemen's Relief Association, complainants, v. Mary A. Gildea et al., defendants.
    [Decided December 31st, 1935.]

      Messrs. King & Vogt, for the complainant.

      Mr. Mark A. Sullivan, for the defendant Mary A. Gildea.

      Mr. Benjamin J. Darling, for the defendants Gertrude K. Higgins and Helen A. Altz.
   Egan, Y. C.

The complainant filed a bill of interpleader and deposited the sum of $300, payable as a death benefit by the complainant upon the death of John W. Gildea, husband of the defendant Mary A. Gildea and father of the defendants Gertrude K. Higgins and Helen A. Altz. The defendants entered into a stipulation of facts as follows:

“1. John W. Gildea died October 11th, 1932, a member in good standing of the Jersey City fire department after having served the necessary seven years to become exempt.

“2. John W. Gildea, at the time of his death, was a member of the Jersey City Firemen’s Eelief Association.

“3. On the death of said John W. Gildea there became due from the burial fund established by the New Jersey State Firemen’s Association, the sum of $300, which has been paid into this court by said association in this proceeding.

“4. John W. Gildea died leaving only (a) Mary A. Gildea, his widow, who was his second wife; (b) Gertrude K. Higgins, his daughter by his first marriage; (c) Helen A. Altz, his daughter by his first marriage.”

The complainant the New Jersey State Firemen’s Association is a corporation formed under a special act of the legislature in 1885, page 144. 2 Comp. Stat. p. 2430. It is the parent body (section 26) of a number of local firemen’s relief associations formed by virtue of the provisions of the same act. The object of corporations under the act is to establish and maintain a fund for the relief and burial of indigent exempt firemen and their families. Section 23, 2 Comp. Stat. p. 2437. Section 6 of the same act provides that the moneys of the association are for the benefit of indigent or disabled firemen or their families. The funds of the said association, as well as the local relief associations, are derived from the collection—through the commissioner of banking and insurance, now the state tax commissioner—of two per cent, on the premiums of fire insurance policies upon property in this state, written by fire insurance companies not organized under the laws of this state (laws of 1885, page 310). 2 Comp. Stat; p. 2444.

The 1885 act was amended by chapter 75 of the laws of 1922 (Cum. Supp. Comp. Stat. p. 1293 ¶¶78-456b, 78-456c). to permit the payment of benefits “to firemen and to their dependents not only during the lives of such firemen, but after their deaths in accordance with such reasonable rules and regulations in regard thereto as the executive committee of the New Jersey State Firemen’s Association may from time to time establish.” This statute provides:

See. 1. “Any fund * * * held by any relief association * * * may be used for the relief, support and maintenance of firemen, exempt, paid or volunteer, and of their dependents, not only during the lives of such firemen but after their death, in accordance with such reasonable rules and regulations in regard thereto as. the executive committee of the New Jersey State Firemen’s Association may from time to time establish, which rules and regulations said executive committee is hereby given power and authority to make and establish, alter, amend and supplement. * * *”
Sec. 2. “Nothing in this act or in the act to which this is a supplement shall be construed to prevent the payment by any such association of funeral or burial benefits out of any funds to the natural beneficiaries of any fireman dying hereafter, in such amount and subject to such rules and limitations as said executive committee may from time to time establish.”

The executive committee of the New Jersey State Firemen’s Association, pursuant to the power given them under the statute, established rules and regulations relating to such fund, which, inter alia., is as follows (page 7 of the Compilation of Rules and Regulations in evidence) :

“To the next of kin of every deceased fireman * * * who has served the necessary seven years to become exempt, the maximum amount of $400 will be paid. * * * The next of kin interpreted to rank in the following order: Widow, children, father and mother, brothers and sisters.”

On June 18th, 1932, the executive committee reduced the allowance from $400 to $300.

On page 8 of the last mentioned rules and regulations, a section thereof entitled “Undertaker’s Bill” reads as follows:

“Undertaker’s Bill—-Where it is found that a disagreement exists between the next of kin and the undertaker in connection with the burial expenses of a deceased fireman, the advisory committee are empowered to use their discretion in the settlement of the claim. This shall apply to eases where no estate has been left sufficient to absorb the expenses. In cases where there is an estate sufficient to absorb the same, the undertaker must look to the estate for settlement and the burial benefit shall be paid direct to the next of kin.”

At the hearing no proof was offered as to the value of the estate, nor of any disagreement between the next of kin and the undertaker, respecting the burial expenses of the deceased fireman. Therefore, this last expressed section has no application to the present controversy.

Section 1 of the statute empowers the executive committee to pay “any fund * * * in accordance with such reasonable rules and regulations * * * as the executive committee * * * may from time to time establish. * * *” The executive committee established the rule that payment should be made to “the next of kin interpreted to rank in the following order: Widow, children, father and mother, brothers and sisters.”

Paragraph 11 of the bill of interpleader herein says:

“The complainants believe said burial benefit to be payable to the defendant Mary A. Gildea pursuant to the proof of claim previously filed by her but have been unable to determine or dispose of the merits of the claims of the defendants as between themselves. Complainants should not be threatened or subjected to the possible double payment of said benefit.”

The claimant daughters of the deceased insist that the words “dependent” used in the act of 1922, or “natural beneficiaries,” and “next of kin” used in the rules and regulations, limit the payment to blood relatives of decedent, or those standing in a dependent relation of consanguinity. I do not conceive that there is any doubt at all as to who is entitled to payment. The committee has unequivocally stated, or established, by rule or regulation the order in which payment should be made; and I believe the rule or regulation to be a reasonable one; and following that rule of order, the widow in the instant case is the person entitled to the fund; thereafter, come the children; then the parents; then the brothers and sisters.

In Bennett v. Van Riper, 47 N. J. Eq. 563; 22 Atl. Rep. 1055, it was decided that the phrase “related to,” “relations,” and “next of kin,” whether used in statute, will or contract, include not only relations by blood, but connections by marriage.

Under the circumstances, I shall advise an order that the widow is entitled to the moneys.


author: Oliphant, 0. C. J.

text:
    ERNEST CHARLES, PLAINTIFF, v. FISCHER BAKING COMPANY, A NEW JERSEY CORPORATION; JAMES F. MacNEILL, IRENE L. RAINEAR, AND EVERETT L. JONES, DEFENDANTS.
    Decided December 20, 1935.
    For the plaintiff, Richard F. Green.

    For the defendant, Reginald V. Spell (A. William Wann, on the brief).
   Oliphant, 0. C. J.

This matter comes before me sitting as a Supreme Court commissioner on a motion to strike the complaint as to the defendant Everett L. Jones. Plaintiff, a non-resident of New Jersey, instituted suit in the New Jersey Supreme Court, Mercer county, and attempts to serve the summons and complaint upon the defendant, also a nonresident of the State of New Jersey, by means of chapter 69, laws of 1930 (Cum. Supp. Comp. Stat. 1925-1930, p. 1048, §§ 135-96a(l) et seq.), amended by the laws of 1933, chapter 69 (N. J. Stat. Annual 1933, p. 264, § 135-96a(l), by sending said summons and complaint to the commissioner of motor vehicles. This was done and the said commissioner' of motor vehicles forwarded a copy of said summons and complaint to the said Jones, who lives in San Francisco, California. Thereupon, the said defendant, through his attorney, entered a special appearance, and moves to vacate and set aside the attempted service on the ground that the act aforementioned as amended gives the right only to residents of the State of New Jersey to effectuate service thereunder, and, therefore, this plaintiff, being a non-resident of the State of New Jersey, cannot avail himself, of the said statute.

Plaintiff admits the facts asserted by the defendant, but says that the act, or at least that part of the act, which says “in any civil suit or proceeding by any resident of the State of New Jersey" is unconstitutional under article IY, section II and the fourteenth amendment, section I; that the words “by any resident of the State of New Jersey” should therefore be deleted from the act and the provisions of the act apply to all citizens of the United States.

The constitutionality of the act in this regard has never been passed upon by the courts of this state.

The rule laid down in article IY, section II of the federal constitution is, for the purpose of the instant case, precisely the same as that found in the fourteenth amendment, section I. Those sections of the constitution read as follows:

Article IY. Section 2 :

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states. Hí

Fourteenth Amendment, Section 1:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In the case of Corfield v. Coryell, 4 Wash. C. C. 381, Mr. Justice "Washington sets forth “what are the privileges and immunities of citizens in the several states?” The court said, “it felt no hesitation in confining these expressions to those privileges and immunities which are, in their nature fundamental; which belong, of right, to the citizens of all free governments; and which have at all times, been enjoyed by the citizens of the several states which compose this union from the time of their becoming free, independent and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads

One of these heads there set forth is “to institute and maintain actions of any kind in the courts of the state.” This exposition of the law relating to the fourth section of the federal constitution has been relied upon consistently to this day, though the courts have said that in construing this provision of the constitution “the courts have manifested the disposition not to attempt to define the words but rather to leave their meaning to be determined in each case upon a view of the particular rights asserted or denied therein.” 18 How. 593.

What :the legislature has attempted to do in chapter 69, section 1, Pamph. L. 1930, supra, as amended by chapter 69, section 1, Pamph. L. 1933, supra, is to extend or grant a new mode of service of process to residents of the slate against any chauffeur, operator or owner of a motor car, unlicensed in this state, using the roads of this state. The first and fourth sections of the act as amended read as follows:

“1. From and after the passage of this act any chauffeur, operator or owner of any motor vehicle, not licensed under the laws of the State of New Jersey providing for the registration and licensing of motor vehicles, who shall accept the privilege extended to non-resident chauffeurs, operators and owners by law of driving such a motor vehicle or of having the same driven or operated in the State of New Jersey, without a New Jersey registration or license, shall, by the acceptance and the operation of such automobiles within the State of New Jersejr, make and constitute the commissioner of motor vehicles of the State of New Jersey his, her, or their agent for the acceptance of process in any civil suit or proceeding by any resident of the State of New Jersey against such chauffeur, operator or the owner of such motor vehicle, arising out of or by reason of any accident or collision occurring within the state in which a motor vehicle operated by such chauffeur, or operator, or such owner is involved;”

Chapter 69, section 4, Pamph. L. 1930, p. 297:

“4. This act shall be construed to extend the right of service of process upon non-residents and shall not be construed as limiting any provision for the service of process now or hereafter existing.”

It will be seen that the courts of this state are not closed to non-residents in instituting or maintaining suits against non-residents with respect to autmobile accidents occurring within the state. If service of process can be procured on the defendant within the state the action can be maintained. The institution of suit is the delivery of the complaint to the sheriff for the purpose of having him serve it. County, Admx., et al. v. Pacific Coast Borax Co. et al., 68 N. J. L. 273; 53 Atl. Rep. 386. If that service can be made, the suit proceeds. The right to institute the suit is nowhere abridged by the act, and if service can be made, a non-resident has equal rights with a resident as to its maintenance.

As was said in Canadian Northern Railway Co. v. Eggen, 252 U. S. 553 (at p. 562) : “The constitutional requirement is satisfied if the non-resident is given access to the courts of the state upon terms which in themselves are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically and precisely the same in extent as those accorded resident citizens.” A person cannot be said to be denied, in a constitutional or rational sense, the privilege of resorting to courts to enforce his rights when he is given free access to them, even though service of process is made easier and more sure for a resident than for a non-resident.

Fortunately the decision of the question here presented does not rest so much upon whether, as to the institution and maintenance of suits, a non-resident is denied a privilege accorded a resident, but upon the words themselves which are used in the statute. This phase of the matter has been touched upon by neither party in their briefs. These words are “by any resident of the State of New Jersey.” No discrimination is made on account of citizenship. It rests alone on residence in the state. “Citizenship and residence are not the same thing, nor does one include the other.” LaTourette v. McMaster, 248 U. S. 465 (at p. 470); Cummings v. Wingo, 31 So. Car. 427. The provision of the statute makes no discrimination against citizens of another state as such. It does not deny to the citizens of another state any right to maintain an action in the courts of this state upon the same terms as a citizen of this state may do, because he is a citizen of another state. The statute relates only to residence, and not to citizenship, which are entirely different things and are not synonymous terms. Grace v. Insurance Co., 109 U. S. 278. Paraphrasing the language set forth in Cummings v. Wingo, above cited; the service of process as provided in the act is denied to non-residents not because they are citizens of another state but only because they are not residents of this state. The right to use the provisions of the act would be denied as well to a citizen of this state, who was a nonresident at the time, as it would to a citizen of another state not residing here; and so conversely, if a citizen of another state is residing here at the time, he could make use of the provisions of the statute the same as a citizen of this state residing here.

The case of Douglas v. New York, New Haven and Hartford Railroad Co., 279 U. S. 377, is dispositive of the case at bar. That was a suit under the New York Employers’ Liability act for personal injuries. The act provided that “an action against a foreign corporation may be maintained by another foreign corporation, or by a non-resident in one of the following eases only: * * * (4) When a foreign corporation is doing business within this state.” Laws of 1913, chapter 60; laws of 1920, chapter 916, section 41. The petitioner argued that the act made a discrimination between citizens of New York and citizens of other states. Mr. Justice Holmes speaking for the Supreme Court said: “However the word ‘resident’ may have been used as equivalent to citizen, and for whatever purposes residence may have been assumed to follow citizenship, there is nothing to prohibit the legislature from using ‘resident’ in the strict primary sense of one actually living in the place for the time, irrespective even of domicile. If that word in this statute must be so construed in order to uphold the act or even to avoid serious doubts of its constitutionality, we presume that the courts of New York would construe it in that way. * * * A distinction of privilege according to residence may be based upon rational considerations and has been upheld by this court emphasizing the difference between citizenship and residence. * * * There are manifest reasons for preferring residents in access to often overcrowded courts, both in convenience and in the fact that, broadly speaking, it is they who pay for maintaining the courts concerned.”

For the within mentioned reasons, I am of the opinion that the statute in question violates in no way the provisions of the federal constitution, that the motion of the defendant to strike the complaint as to Everett L. Jones should be granted and an order may be presented in conformity therewith, striking out the complaint.


author: Porter, C. C. J.

text:
    Essex County Circuit Court.
    ANGELINA TROVATO, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF AMBROSE TROVATO, DECEASED, PLAINTIFF, v. COSMO CAPOZZI, DEFENDANT.
    Decided December 26, 1935.
    For the plaintiff, J oseph F. S. Fitzpatrick.

    Eor the defendant, Collins <& Corbin (by Charles W. Broadhurst).

   Porter, C. C. J.

This ease was tried by the court and a jury on October 24th, 1935. It is an action under the “Death act,” based upon the charge of negligence.

The undisputed facts are that Ambrose Trovato and Cosmo Capozzi, together with two others, were riding in the automobile of Capozzi when it overturned, and that Trovato was thrown from the car and instantly killed.

There was a sharp issue of fact presented by the testimony, as to whether Capozzi or the deceased, Trovato, was driving the car at the time of its being overturned. The plaintiff produced as a witness Eocco DeLena who testified that he saw Capozzi, whom he knew by sight, driving the car immediately prior to its overturning. As against that testimony, the defendant and his two companions in the ear testified that the deceased was driving.

The jury rendered a verdict in favor of the plaintiff, thus doubtless finding as a fact that the defendant was driving the ear and was negligently doing so. The clerk, under instructions of the court, received the verdict in the absence of the court. The verdict was in these words:

“We find in favor of the plaintiff, Angelina Trovato, deceased, and against the defendant, Cosmo Oapozzi, for the sum of nine thousand dollars ($9,000.00) damage, payable at the rate of fourteen dollars ($14.00) per week until the fund is exhausted.”

Application by the plaintiff has been made for an order moulding the verdict by the elimination of the words “payable at the rate of $14 per week until the fund is exhausted,” the contention being that the objectionable words are mere surplusage, that the error is but one of form, and that the real intention of the jury is to award a verdict of $9,000. Briefs have been submitted on that application.

There was applied for by the defendant, and allowed, a rule to show cause why the verdict should not be set aside and a new trial ordered on the ground that “the verdict is against the clear weight of the evidence on the question of whether or not the defendant, Cosmo Capozzi, was driving his automobile at the time of the alleged accident.” Partial argument was heard on this rule, and decision was reserved until briefs were furnished and considered on the application for the moulding of the verdict, which matter, it seemed to me, should be first decided.

Upon examining the briefs and authorities therein cited, I have concluded that I am without power to mould the verdict; that it is illegal and void, and that a new trial must be ordered.

That the verdict as rendered is not in proper form is not disputed. The function of the clerk was purely administrative; he was obliged, under the law and the instructions of the court, to receive and record the verdict as rendered by the jury. He so acted in the instant case.

There is a conflict of decisions in various states on the power of the court to mould verdicts. The rule in this state, however, is that the power of the court is limited to the correction of informalities in the verdict so that it will correspond in substance with the intention of the jury. I so read Kilgus v. Wayne Co., 85 N. J. L. 351; 88 Atl. Rep. 1056. That case was cited with approval in Union Garage Co. v. Wilner, 98 N. J. L. 441 (at p. 443) ; 120 Atl. Rep. 4, and in Cresci et al. v. Gandy, 99 N. J. L. 417; 124 Atl. Rep. 68. In other words, a verdict may be corrected as to form bnt not as to substance.

The jury clearly intended that the verdict be paid by weekly installments. That, in my opinion, is.a matter of substance rather than of form. It may well be that had the jury known that its verdict could not be effective as to weekly payments it would have reached an entirely different principal sum. ISTothing in the court’s charge could possibly have justified the jury in imposing any conditions or restrictions as to how the verdict was to be paid. I see no distinction in principle between the instant case and Kilgus v. Wayne Co., supra, where interest was improperly added, or in Cresci et al. v. Gandy, supra, where the verdict improperly provided for the return of “the tractor.”

Having reached this conclusion, it becomes unnecessary for me to decide the rule to show cause as to the weight of the evidence on the question of who was driving the automobile.

A new trial will be ordered, without costs, on this motion.


author: Herr, A. M.

text:
    Dora Lief, also known as Dora Leif, petitioner, v. Adolph Lief, &c., defendant.
    [Decided May 15th, 1935.]

      Mr. Milton M. Unger, for the petitioner.

      Mr. Harry J. Weiner, for the defendant.
   Herr, A. M.

The petition now presented by Dora Lief, the above named petitioner, sets forth that on August 15th, 1933, an order was entered in this cause requiring the defendant to pay her $5 a week as alimony pendente lite “until the further order of the court,” and that he is in arrears as of April 8th, 1935, in the sum of $330, calculated on the basis of $5 per week from August 15th, 1933, to April 2d, 1935, less credits of $90.

The original proceeding was a suit by the wife for divorce on the ground of extreme cruelty. The husband counterclaimed for divorce on the ground of adultery, but abandoned his counter-claim at the final hearing. The wife’s suit was heard on its merits, and on May 28th, 1934, both petition and counter-claim were dismissed by final decree. The decree is silent as to alimony, either temporary or permanent. At the date of the entry of the final decree the defendant was in arrears in his payments of alimony under the order of August 15th, 1933, to the extent of $115.

The petitioner appealed from the final decree to the court of errors and appeals, and that court has affirmed the decree. No application was made to that court or to the court of chancery for alimony pending the appeal.

At the hearing on the present contempt proceeding, counsel for the petitioner waived claim for accruals maturing subsequent to the entry of the final decree, and confined himself to the contention that the defendant is in contempt because of the arrears of $115 which accrued prior thereto, and that this court should now so adjudge and should punish him accordingly.

The question raised is whether after a wife’s suit for divorce results in a decree of dismissal on the merits, containing no reference to arrears of alimony accrued under a prior order, this court may or should go back of that decree and punish as for a contempt the husband’s failure to pay such accrued alimony.

Counsel for the wife seems to assume that installments of temporary alimony, as they accrue, are in the nature of a debt, as to which the wife has a vested right, and that such right must necessarily survive a decree of dismissal of her suit although such decree lacks a saving clause as to such accruals.

The alleged contempt is civil, not criminal. A criminal contempt is conduct that is directed against the dignity and authority of the court, and may occur in either a criminal or civil action or in a special proceeding. A civil contempt consists in failing to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein, and is therefore, not an offense against the dignity of the court, but against the party in whose behalf the violated order is made. Staley v. South Jersey Realty Co. (Court of Errors and Appeals), 83 N. J. Eq. 300; 90 Atl. Rep. 1042; L. R. A. 1917 B 113 Ann. Cas. 1916 B 955; see "Contempt ” 13 C. J. 6 §§ 5, 6; 6 R. C. L. 490 § 3.

A contempt proceeding to enforce temporary alimony is a civil contempt. See Bourgeois v. Bourgeois, 108 N. J. Eq. 598; 156 Atl. Rep. 2. In this respect it differs from a criminal contempt for the violation of an injunction. See Staley v. South Jersey Realty Co., supra.

Assuming (but not deciding) that the wife had a vested right to the installments as they accrued (see Bolton v. Bolton, 86 N. J. Law 622; 92 Atl. Rep. 389; Kossower v. Kossower (N. J.), 142 Atl. Rep. 30; Wittlinger v. Wittlinger, 13 N. J. Mis. R. 349; 178 Atl. Rep. 97; 94 A. L. R. 331; 41 A. L. R. 1419; 46 A. L. R. 1200; 57 A. L. R. 1113; Plahn v. Givernaud, 85 N. J. Eq. 143; 96 Atl. Rep. 40; 59 C. J. 1159), it does not follow that such right survived the decree, or that this court can or should thereafter enforce it by contempt orders.

The order for temporary alimony was interlocutory in its nature. The final decree failed to reserve any right under the order. The decree supersedes the order and disposes of it. The court speaks only through the decree, which is as eloquent in its omissions as in its express provisions. Every preceding order in the suit is terminated upon entry of the final decree unless there be an express reservation. It must be assumed that the decree settles and disposes of the whole controversy between the parties and of everything incidental or ancillary thereto. Hayes v. Hayes, 150 App. Div. 842; 135 N. Y. S. 225; affirmed, 208 N. Y. 600; 102 N. E. Rep. 1104; Walter v. Walter, 15 App. D. C. 333; Swallow v. Swallow, 84 N. J. Eq. 109; 92 Atl. Rep. 872; see Duss v. Duss, 92 Fla. 1081; 111 So. Rep. 382.

In Walter v. Walter, supra, on appeal from an order discharging a rule to show cause why the respondent should not be required to pay arrears of accrued temporary alimony, after a dismissal of the wife’s suit, the court said:

“.But the question is, whether, when a cause has been brought to a hearing on the merits, and an absolute decree of divorce has been rendered in favor of the husband and the wife’s counter petition for divorce has been dismissed, without any reference whatever to alimony or arrears of alimony, and no provision made for the collection or payment of arrears of alimony, the wife can afterwards, and after the decree has passed beyond the power of correction in the court which rendered it, * * * go back of that decree and enforce an interlocutory or incidental order for alimony pendente lile which remained partially unexecuted at the time of the rendition of the decree. This question we are compelled to answer in the negative. Whatever finality for certain purposes and under certain contingencies may inhere in the interlocutory orders of a court of equity for the payment of alimony pendente lite in suits for divorce, they are after all in the cause in which they were rendered only interlocutory orders incidental to.the cause and subject until final hearing to modification, revocation or rescission by the same court. }j{ * *

“The litigation between the parties in the matter of the divorce sought by both of them was terminated by an absolute and final decree; and upon every principle applicable to such cases we must assume that the final adjudication settled and disposed of the whole controversy between the parties and of everything incidental or ancillary thereto.”

It is not to be intimated that the petitioner might not have properly reserved or safeguarded her right to the accrued installments of temporary alimony by an appropriate provision in the decree, or that she might not by a timely, application have moved to amend the decree in this respect, but having failed to avail herself of either course she must be deemed to have waived any and all rights to such alimony, or to have received satisfaction therefor. Any other rule would be subversive of the doctrine of res judicata, and public policy requires that there should be finality to judgments and decrees of courts of competent jurisdiction. Miller v. McCutcheon, 117 N. J. Eq. 123; 175 Atl. Rep. 155; see Dowling v. Dowling, 93 N. J. Eq. 159; 115 Atl. Rep. 378.

The case of McGrail v. McGrail, 51 N. J. Eq. 537; 26 Atl. Rep. 705, cited by counsel is not in point. In that case a decree of divorce in favor of a husband on his counter-claim in a suit for maintenance was reversed on appeal. The temporary alimony awarded by this court and by the court of errors and appeals pending appeal was paid by the husband up to the time of the decree of reversal. The only point decided was that the decree of reversal by the appellate court did not revive the order for temporary alimony made by this court in the first instance.

The case of Swallow v. Swallow, supra (Backes, V. C., 1924), is of more significance. The defendant petitioned for a discharge of a writ of sequestration. The wife had been granted a final decree of divorce, but had failed to obtain an award of permanent alimony. During the pendency of the action the wife was awarded alimony pendente lile which the husband had failed to pay. On the petition to discharge the writ of sequestration the husband offered to pay the amount of temporary alimony that had accrued up to the time of the entry of the final decree, but the petitioner insisted on payments up to time of the petition or after the decree of divorce. The vice-chancellor advised an order discharging the writ upon the defendant paying all arrearages of alimony to the entry of the final decree.

The Swallow Case is authority for the proposition that the operation of an order for temporary alimony terminates with the entry of the final decree. Temporary alimony is awarded to the wife during the pendency of the action and as the action is no longer pending after the entry of a final decree it ceases to operate as to the future. To the same effect, see McGrail v. McGrail, supra. In the course of the opinion in the Swallow Case the court (at p. 110) said:

“The operation of an order for temporary alimony terminates with the entry of the final decree. I Is vitality, however, survives that event. (Italics mine.) * * * The cases cited in Wood v. Wood are also authority for the proposition that a wife’s order for temporary alimony continues down to the final decree, and may be thereafter enforced, even though she be adjudged guilty.”

This observation of the court in the Swallow Case appears to have been unnecessary to its decision for it is apparent that the right to the temporary alimony was not in issue. It clearly appeared that “the defendant now offers to pay the amount of alimony that accrued up to the time of the entry of the final decree, and prays that upon payment being made the writ be discharged.” The only issue decided was that an order of temporary alimony “until the further order of the court in the premises” does not extend beyond the entry of the final decree. The court (at p. Ill) recognized the rule that all interlocutory orders in a cause are superseded by the final decree.

There appears no significant distinction between a final decree of divorce and a final decree dismissing a petition for divorce as respects its effect in terminating an interlocutory order for temporary alimony.

This court is aware that there are decisions and die la in some jurisdictions apparently to the effect that the order for temporary alimony survives the entry of a decree of divorce or a decree dismissing a petition for divorce (see Ex Parte Robbins, 212 Cal. 534; 299 Pac. Rep. 51; Garham v. Garham (Ga.), 94 S. E. Rep. 555; Caldwell v. Caldwell, 189 N. C. 329; 128 S. E. Rep. 329. See 19 C. J. tit. “Divorce” 221 § 530), but is not disposed to follow a rule which would strip a final decree of its quality of finality.

Whether the final decree of dismissal may on application be now opened and amended so as to reserve a right to accrued installments of temporary alimony, is not before the court for consideration on this application.

The conflict of authority on the question whether the dissolution of an injunction deprives the court of the power to punish for contempt for its violation results from the differing views as to the nature, whether civil or criminal, of the particular contempts dealt with. 6 R. C. L. 507; 13 C. J. 61; 51 L. R. A. (N. S.) 972 n.

Irrespective of the foregoing objection, this court in the sound exercise of its. discretion should refuse to entertain the motion. The temporary alimony was awarded to enable the wife to maintain herself until her case could be heard, quite regardless of whether she should prove herself entitled to support. She failed at final hearing to prove her ease. She managed to live in the meantime without all of the money ordered to be paid to her. She made no application to the court at any time for the enforcement of her right until the present application, made nearly a year after the entry of the final decree.

If she has any right Tinder these circumstances let her seek its ei if or cement by the ordinary processes of execution. Her case is not one which should move this court to grant her the extraordinary and drastic remedy of a contempt order. See Williams v. Williams, 12 N. J. Mis. R. 641; 174 Atl. Rep. 428.

The order to show cause will be discharged, for the reasons above stated.


text:
    Mabel F. Wilson, complainant, v. Clarence F. Wilson, defendant.
    [Decided October 1st, 1935.]

      Mr. Sam Lieberman,, for the petitioning executor.

      Messrs. Waugh, Torppey & Hoffman, for the defendant.
   Herr, A. M.

This is an application on verified petition, order to show canse and answering affidavits, brought by Philip Lowits as executor of the last will and testament of Mabel F. Wilson (the above named complainant), deceased, seeking an adjudication fixing the total amount of arrearages of temporary maintenance claimed to be due and unpaid under an ad interim, order in the cause, in order that he may recover the same from the defendant by the process either of this court, or of the supreme court by virtue of P. L. 1902 p. 524; 1 Comp. Stat. 1910 p. 425 § 44; Rooney v. Rooney, 102 N. J. Law 551; 133 Atl. Rep. 752.

The original bill was filed by the said Mabel F. Wilson on July 29th, 1929, alleging abandonment and failure to maintain, and praying for a decree of separate maintenance under section 26 of the Divorce act. P. L. 1907 p. 482; 2 Comp. Stat. 1910 p. 2038 § 26. By an order entered on October 23d, 1929, the defendant, Clarence F. Wilson, was directed to pay her the sum of $20 each week for her temporary support and maintenance pending the suit. No further steps were taken in the cause by either party until the present application by the executor of Mabel F. Wilson, who died on June 18th, 1934.

The executor claims that the defendant neglected to pay to his wife the sums directed by the order to be paid that the arrearages up to the date of her death aggregate $2,310, and that he is obliged to seek the collection of that sum from the defendant in order to pay claims of creditors of the estate whose debts must otherwise remain unsatisfied. The executor’s petition does not contain a prayer for an order to revive the suit for the purpose of fixing the arrears, but under rule 60 of this court an order to revive for that purpose may nevertheless be advised if the allegations and proofs disclose that the executor has a meritorious claim to the relief prayed.

The defendant resists the application on the ground that shortly after the entry of the order for temporary maintenance the parties by their conduct destroyed the cause of action upon which the suit was based, if such cause had ever existed, on +he ground that the action has remained too long dormant for want of prosecution, on the ground that the alleged arrearages are not in the nature of a debt and did not survive the death of Mrs. Wilson, on the ground that the court is without jurisdiction to grant the relief prayed because the suit was abated by the death of the complainant and finally on the ground that the order for temporary maintenance was secured by fraud on the part of Mrs. Wilson. The defendant also disputes the amount of arrearages claimed, but admits that there are arrearages in some smaller sum if the order remained effective until the complainant’s death.

The proofs before the court on this application consist solely of ex parle affidavits, the parties having agreed to submit the present controversy thereon, without other evidence.

The affidavits in support of the defendant’s position show, without contradiction, that from the time of the entry of the order for maintenance pendente lite to the time of his wife’s death the defendant had frequently visited her and was on friendly terms. In this he is corroborated by the affidavit of his son. It further appears from the defendant’s affidavit, without contradiction, that during this entire period the complainant and defendant often had sexual relations with each other, that the defendant frequently urged his wife to live with him again, that she consistently held out hope that she would at some time do so and that finally, shortly before her death, she agreed to do so and presumably would have done so had not her death intervened.. According to the uncontradicted evidence of the defendant the only obstacle to a complete reconciliation was the complainant’s unwillingness to dismiss a boarder in her home, whose presence there had been the original cause of her husband’s leaving, and continued to be the sole cause of his remaining away. The defendant further testifies that during this whole period he paid the complainant money for her support and maintenance, not in the amounts and upon the dates required by the order, but in accordance with his means and to her complete satisfaction.

The complainant’s failure during this entire period of about five years to take any step in the prosecution of her action is a circumstance corroborative of the defendant’s evideuce that her alleged cause oí action was fully condoned and that a situation not far from complete reconciliation existed. There is no other proof tending to excuse or explain the neglect of the complainant to advance her cause seasonably to final hearing. The payments shown to have been made by the defendant to his wife from the date of the order vary from the terms of the order both in amounts and in dates of payment to such an extent as to further corroborate his testimony and to justify the conclusion that she intentionally waived her rights under the order, at least to the extent of all unpaid installments thereunder.

The suit for separate maintenance was based upon the allegations of abandonment and refusal to maintain. The proofs show that, whether or not the defendant had been guilty of abandonment prior to the filing of the bill, he ceased to be guilty of that offense very shortly thereafter. If there was not a substantial reconciliation, at least there was a complete condonation of the alleged abandonment, coupled with a voluntary acceptance by the wife of less money than the order entitled her to receive and a partial consortium,, falling short of a complete reconciliation only because of the wife’s unwillingness to dismiss ihe star boarder and her unjustified resistance to her husband’s constant efforts to re-establish the home. In this case we once more behold the eternal triangle, but with the woman at the apex. In spite of the ubiquitous star boarder, she continued in the uninterrupted enjoyment with her husband of all of the advantages (without any of the burdens) of bed and board, which by her bill she complains that her husband refused to her. Is it material whose bed it was if they shared it, or whose board it was if his means supplied it? Legally the situation was the same as if the parties had been living apart by mutual consent without fault on the part of the defendant. It was a situation fully as inconsistent with the notion of abandonment as if there had been a complete reconciliation, and as destructive of the alleged cause of action. And when the cause of action, if any, was destroyed, the suit based thereon was necessarily terminated as complétely and effectually as if a decree of dismissal had been entered. Byrne v. Byrne, 93 N. J. Eq. 5; 114 Atl. Rep. 754; Kuntz v. Kuntz, 80 N. J. Eq. 429; 83 Atl. Rep. 787.

The termination of the suit rendered the order for maintenance .therein prospectively inoperative, so that no installments accrued thereon after such termination. Had a decree of dismissal been entered at that time, as it would have been upon application therefor, it might have contained an express reservation in complainant’s favor which would have enabled her to collect any prior unpaid installments, but its entry would have effectually terminated the order as to all future installments. See Lief v. Lief, 14 N. J. Mis. R. 27;. 178 Atl. Rep. 762; Yoder v. Yoder (Wash.), 178 Pac. Rep. 474; 3 A. L. R. 1104; Bell v. Bell, 214 Ala. 573; 108 So. Rep. 375; 45 A. L.R. 935.

If there were proof that at the time of the termination of this suit by reason of the conduct of the complainant as above set forth there were any unpaid arrearages under the order, no doubt the court would have jurisdiction to make an order at this time fixing the amount thereof, and might reserve to the complainant’s executor the right to collect the same by a suitable provision in the decree of dismissal when it is entered; although by so doing the court would depart from the settled practice of the ecclesiastical courts in refusing to enforce collection of installments more than one year in arrears. See De Blaquiere v. De Blaquiere, 3 Hagg. Ec. 322; 162 Eng. Reprint 1173; Lynde v. Lynde, 64 N. J. Eq. 736, 753; 52 Atl. Rep. 694. But there is no such proof. On the contrary the defendant is shown to have paid his wife far more money in the years subsequent to such termination and prior to her death than would have been required to satisfy any possible amount of arrearages accruing prior to the termination of the order.

Obviously, therefore, no order can be made to fix the amount of arrearages which do not exist, and it follows that the executor’s application must be denied.

But the executor contends that the evidence given by the defendant himself, upon which is largely based the conclusion that the suit terminated shortly after the entry of the ad-interim order because of the conduct- of the complainant, should not have been considered by the court under section 4 of the Evidence act (as amended, P. L. 1931 p. 305 ch. 163; N. J. Stat. Annual p. 158 § 70-4), in spite of the executor’s having first testified by his own affidavit to transactions between complainant and defendant, and that the court sua sponte should disregard the defendant’s evidence as being opposed to the policy of the law and dangerous to the administration of justice. The evidence given by the defendant as to transactions and conversations with his wife with respect to the matter in issue might well have been suppressed by the court on its own motion, under the authority of Monfort v. Rowland, 38 N. J. Eq. 181, had not the executor by his affidavit first testified to such transactions. Indeed, the only evidence sustaining the executor’s application is his own. The statute was designed to preserve a just mutuality in the right to testify. It has always been considered essential to the ends of justice that when death has sealed the lips of one party, the law should seal the lips of the other. The rule is designed to protect the estate of an owner whose death has rendered him powerless to defend. But a just mutuality is not achieved by silencing the living if the dead, througn the medium and choice of his representative, elects to speak. For the representative of the decedent, if he chooses to speak, speaks through the lips of the decedent. It is his privilege to waive the protection of the statute; if he speaks, the law will not enjoin silence upon the party who still lives. The statutory protection is not imposed upon the executor against his will. Tn the instant case the executor has made his election. By himself first testifying to transactions between the complainant and the defendant, he has opened the door to the defendant’s testimony as to such transactions. Kapalczynski v. Sitniski, 91 N. J. Eq. 524; 111 Atl. Rep. 24.

But assuming the executor’s argument to be sound, that the court should read his affidavit and at the same time suppress the affidavit of the defendant, and so should find itself without evidence upon which it can conclude that there was condonation by the complainant of the alleged abandonment, or that there was any agreement between the parties, express or implied, inconsistent with and destructive of the continued existence of the alleged cause of action, the executor’s application must still be denied upon other grounds.

If the jurisdiction of the court to order ad interim maintenance to the wife were derived from the statute, such ad interim orders would no doubt be subject to all of the provisions and limitations of section 26 of the Divorce act, to the same extent as final decrees under that section are so subject. It seems doubtful whether the court has authority under that section, by orders intended to operate retroactively, to reduce or cancel arrearages of alimony or maintenance fixed by or subsequent to final decree, or to accomplish such a result indirectly by declining to make orders designed to facilitate the recovery of such arrearages. The question does not seem to have come squarely before our courts. Dicta will be found in Lynde v. Lynde (Court of Errors and Appeals), 64. N. J. Eq. 736, and in Bolton v. Bolton (Supreme Court), 86 N. J. Law 69; affirmed (Court of Errors and Appeals), 86 N. J. Law 622. In this connection see, also, Sistaire v. Sistaire, 218 U. S. 1; 54 L. Ed. 905; 30 S. Ct. 682; 28 L. R. A. (N. S.) 1068; Lynde v. Lynde, 181 U. S. 183; 45 L. Ed. 810; Barber v. Barber, 21 How. (U. S.) 582; 16 L. Ed. 226; Kossower v. Kossower (Court of Errors and Appeals), 142 Atl. Rep. 30; notes, 94 A. L. R. 331; 41 A. L. R. 1419; 46 A. L. R. 1200; 57 A. L. R. 1113.

But whatever the law of this state may be respecting the vested character of arrearages of permanent alimony or maintenance, arrearages of temporary maintenance in suits under section 26 stand in a different category. While it is settled that the jurisdiction of the court to grant permanent maintenance is derived exclusively from section 26 of the Divorce act (Hervey v. Hervey, 56 N. J. Eq. 424, 426; 39 Atl. Rep. 762; Anshutz v. Anshutz, 16 N. J. Eq. 162; Yule v. Yule, 10 N. J. Eq. 138), that section does not purport to authorize the court to award maintenance pendente lite. Until the year 1902 the statutory provision for decreeing alimony in divorce suits (now section 25) contained no authority to order alimony pendente lite. Act of December 2d, 1794, Pat. Laws 1800 p. 143; Rev. 1877 p. 317 § 19; 2 Gen. S. 1895 p. 1269 § 19; P. L. 1902 p. 507 § 19; P. L. 1907 p. 481 § 25; P. L. 1933 p. 296; N. J. Stat,. Annual 1933 § 62-25. The statutory provision for decreeing separate maintenance (now section 26) on the other hand, has never contained authority to order temporary maintenance. P. L. 1820 p. 668; Rev. 1877 p. 318 § 20; 2 Gen. S. 1895 p. 1270 § 20; P. L. 1902 p. 508 § 20; P. L. 1907 p. 182; 2 Comp. Stat. p. 2038 § 26.

In spite of the lack of statutory authority to order a,d interim allowances for the wife, in divorce cases until 1902 and in maintenance suits up to the present time, this court has never hesitated to make such pendente lite provision for the wife in proper cases in both classes of suits. Amos v. Amos, 4 N. J. Eq. 171; Patterson v. Patterson, 5 N. J. Eq. 389; Marker v. Marker, 11 N. J. Eq. 256; Vreeland v. Vreeland, 18 N. J. Eq. 43; Marsh v. Marsh, 14 N. J. Eq. 315, 318. No distinction in principle is made in the early cases with respect to the temporary allowance awarded to the wife, whether such allowance was made in a suit for divorce or in a suit for separate maintenance. Such temporary allowance in both classes of cases was termed “alimony pendente lite ” and it was never supposed that the authority of the court to make such temporary allowances must be found in the statute. On the contrary it was recognized that the jurisdiction is inherent in the court. Thus Vice-Chancellor Van Fleet in the separate maintenance suit of Westerfield v. Westerfield, 36 N. J. Eq. 195, 197, observed:

“An application for alimony pendente lite stands now solely on the ground of necessity. * * * At common law, by the marriage contract, the husband acquired complete control over all property owned by his wife at the time of the marriage, or which she might acquire during coverture. In such a state of affairs, unless the court required the husband to support his wife, and to furnish her with the means of prosecuting her suit or defending his, she would be left, during the litigation, both destitute and defenseless.”

The court of chancery having jurisdiction by statute to decree alimony and maintenance in divorce and separate maintenance suits must of necessity have power to order temporary support and suit moneys in order to enable the wife to prosecute or defend such suits and to maintain herself until decree. The power to make such temporary, pendente lile provision is a part of the fundamental jurisdiction of courts of equity in all cases where authority is granted to the courts to hear and determine such causes. The power to allow support and suit moneys to the wife in order to enable her to maintain herself pending the action, and to prosecute or defend the same, must be regarded as incidental and necessary in all matrimonial actions. It is grounded upon the plainest principles of reason and justice, for without such power the rights of the woman, in many cases, could not be adequately protected. See Wooten v. Court (Mont.), 189 Pac. Rep. 233; 9 A. L. R. 1212.

Dr. Bishop in speaking of temporary alimonjr (2 Bish. Mar., Div. & Sep. 1891 § 915) says that the “doctrine of temporary alimony is fundamental in the law, not only in the law of divorce, but in our entire legal system. It is not mere practice. Without the aid of any statute it is binding on our tribunals because inherent in natural justice and natural jurisprudence; because it is a part of our system of general law; because it was law in the ecclesiastical courts of England whence it traveled to our states. Here are three distinct grounds upon any one of which, without the others, the doctrine would rest secure; much more, therefore, is it secure while resting on all three.”

This inherent power of the court of chancery to order ad interim, allowances for maintenance and suit money in suits between husband and wife is not confined to suits authorized by the Divorce act, but may be exercised in any suit between husband and wife where as a condition inherent in the cause of action the wife must remain separate from her husband pending the suit, or where because of the husband’s misconduct it becomes necessary, as an incident to a suit pending between them, to compel him to furnish her with the means to maintain herself and to prosecute or defend the suit.

Thus in Lambert v. Lambert (1767), 2 Bro. P. C. 18; 1 Eng. Reprint 764, the House of Lords affirmed an order for the allowance of suit money and maintenance pendente lite to a wife who had been compelled because of the husband’s extreme cruelty to separate herself from him, upon her bill to set aside on the ground of duress a deed of separation containing an inadequate provision.

Lord Loughborough in Ball v. Montgomery (1793), 2 Ves. Jr. 191, 195; 30 Eng. Reprint 588, voiced the much quoted dictum :

“* * * I take it to be now the established law, that no court, not even the ecclesiastical court, has any original jurisdiction to give a wife separate maintenance. It is always as incidental to some other matter, that she becomes entitled to a separate provision. If she applies in this court upon a supplicavii for security of the peace against her husband, and it is necessary, that she should live apart, as incidental to that the chancellor will allow her separate maintenance: so in the ecclesiastical court, if it is necessary for a divorce a mensa el thoro propter saevitiam.”

See, also, Duncan v. Duncan, 19 Ves. Jr. 394; 34. Eng. Reprint 564, in which Sir William Grant, master of the rolls, quotes Lord Loughborough’s dictum with approval (although inadvertently ascribing it to Lord Eosslyn) and cites earlier cases including Oxenden v. Oxenden, 2 Vern. 493; 23 Eng. Reprint (1705) 916.

The case of Biddle v. Biddle, 104 N. J. Eq. 313; 145 Atl. Rep. 639, which was upon a bill to enforce a separation agreement, seems to be the only case in híew Jersey in which a narrower view is taken of the power of the court in cases outside of the statute. There alimony pendente lile was denied (although suit money was allowed to the wife) on the authority of several earlier cases in this state, none of which, on examination, appear to be in point. In the case of Yule v. Yule, 10 N. J. Eq. 138, 144, one of the cases relied upon, the chancellor declined to grant a wife permanent maintenance where she failed to prove a case within the purview of the statute. Likewise the case of Anshutz v. Anshutz, supra, to which may be added Margarum v. Margarum, 57 N. J. Eq. 249; 41 Atl. Rep. 357, and Patton v. Patton (Court of Chancery), 58 Atl. Rep. 1019, involved permanent maintenance. See, also, Hervey v. Hervey, supra; Lynde v. Lynde, 64 N. J. Eq. 736; 52 Atl. Rep. 694; Cary v. Cary, 11 N. J. Eq. 400; Miller v. Miller, 1 N. J. Eq. 386.

Rockwell v. Morgan, 13 N. J. Eq. 119, cited in the Biddle Case, was a bill for dower instituted by a wife against the devisees under her deceased husband’s will. By petition she ■^sked that the rents of a part of the real estate be paid to her pendente lite. The application for support pendente lite was denied on the ground that the claim was not against her husband or his estate, but against the devisees. She had no claim to alimony or maintenance from the devisees who were the children of the decedent. The chancellor (at p. 120) very significantly observed that:

“The claim clearly does not fall within the equitable principle which allows to a wife a maintenance during the progress of a suit against her husband. * * * In a controversy with her husband it is just that she should have the means of enforcing her claim or of testing its validity.” (Italics mine.)

The Biddle Case recognizes the general rule that “in litigation between a husband and wife, the wife is regarded as a privileged suitor and is entitled to aid from her husband when necessary to enable her to properly present her cause,” which was the basis for the court’s allowance of suit money, although not thought to justify pendente lite maintenance. No authority is cited for such a distinction and it appears to have been made in none of the earlier cases. The Biddle Case seems to be out of line with the well established principle laid down by the authorities above cited, and if followed would seem to impose an unwise and unnecessary restriction upon the inherent power of the court. The court in the Biddle Case appears to have overlooked the case of Vroom v. Marsh, 29 N. J. Eq. 15, in which Chancellor Runyon allowed a wife temporary alimony on a bill filed by her husband to annul their marriage on the ground of duress. The suit came within the general equity jurisdiction of the court. The authority to grant alimony pendente lite in annulment cases for fraud or duress was not derived from any statute prior to 1902 and the present section 25 of the Divorce act relates to temporary alimony in only those annulment cases which are brought upon statutory grounds. See Avakian v. Avakian, 69 N. J. Eq. 89, 99; affirmed, 69 N. J. Eq. 834; 60 Atl. Rep. 521.

In any event the Biddle Case is not in point so far as statutory actions for divorce, annulment and separate maintenance are concerned. With respect to such actions the authorities are in accord in recognizing an inherent jurisdiction to order pendente lite allowances to the wife, so that whatever limiting effect the provisions of section 26 may have upon the court’s power to modify existing final decrees for separate maintenance so far as they may operate to reduce or cancel the defendant’s obligation to pay past due arrearages fixed by such decrees, such statutory provisions are inapplicable in the case of arrearages under ad interim orders for temporary maintenance. Such orders, until final decree, remain within the complete control of the court. They may be modified from time to time, in the court’s discretion, retrospectively as well as prospectively, even to the extent of extinguishing the husband’s obligation to pay arrearages. They are in no different category from ad interim orders made in non-matrimonial suits, all of such orders until final decree being in complete control of the court. Fourniquet v. Perkins, 16 How. (U. S.) 82; 14. L. Ed. 854; 10 R. C. L. 562 § 350; 21 C. J. 703 § 873. In matrimonial litigation it is particularly important for the court to maintain such full control of its ad interim orders because of the summary nature of the hearings upon which such orders are based, because ex necessitate the benefit of every reasonable doubt must be accorded to the wife pending final hearing, because the circumstances of the parties frequently change pending the suit, and because of the regrettable fact that in matrimonial causes the bitterness of the parties toward each other often renders their affidavits unreliable to an extent which can be determined only upon the final hearing.

It follows that a wife, pending her suit for separate maintenance, has no vested right to installments of temporary maintenance as they accrue. Until final decree the court may at any time for sufficient cause annul and vacate its prior orders and so wipe out all unpaid accumulations thereunder. Such “sufficient cause” need not amount to fraud, as in Wittlinger v. Wittlinger, 13 N. J. Mis. R. 349; 178 Atl. Rep. 97, but it is open to the court to balance all of the equities.

Now in the instant case, if the evidence of the defendant himself be disregarded, -the proofs still show that during the period of five years intervening between the entry of the ad interim order and the death of the complainant the parties were on friendly terms, occasionally dining together and attending shows in each other’s company, that during the whole period the complainant was receiving money from the defendant in amounts which apparently satisfied her and that after securing the order she took no further step in the cause. Under these circumstances, had she lived, it may be doubted whether she could have prevailed on an application to enforce payment of the alleged arrearages. The court would apparently have been free to adopt the arbitrary rule applied by the ecclesiastical courts and to have declined to enforce arrears extending beyond one year. Or the court might well have determined on the facts that the wife’s conduct had been such as to mislead the defendant into believing she had dropped the case and so to have induced him to refrain from moving the same upon his answer, or from moving for its dismissal on account of the complainant’s delay in its prosecution, and thereby perhaps relieving himself of the burden of the order.

However that may be, the death of the complainant in this case certainly calls for the application of an estoppel against her executor on the ground of laches, particularly because of the statutory estoppel assumed to have silenced the- defendant by virtue of section 4 of the Evidence act as amended by P. L. 1931 p. 305 (N. J. Stat. Annual 1931 § 70-1). The court feels far from confident of its ability to ascertain what sums if any are due and unpaid. Disregarding the defendant’s testimony, the evidence is not of such a reliable quality as to warrant an order in accordance with the executor’s prayer for relief. If the lips of the defendant are to be sealed by the statute and by the policy of the law, there remains no one with sufficient knowledge of the facts to justify the court in arriving at a judicial determination of the factual issues. Such a determination would hardly be more than conjecture. Lutjen v. Lutjen (Court of Errors and Appeals), 64 N. J. Eq. 773 53 Atl. Rep. 625. See, also, Dunham v. Adams, 82 N. J. Eq. 265, 269; 88 Atl. Rep. 696; Schuler v. Schuler, 114 N. J. Eq. 220, 222; 168 Atl. Rep. 468.

The sole adverse equity urged by the executor is that there are unpaid creditors of the wife whose debts must remain unsatisfied unless he can collect his claim against the defendant. But since the statutory provisions of section 26 of the act do not apply to maintenance pendente lile, as above pointed out, there has been no limitation placed at any time upon the creditors’ common law remedy. See Avakian v. Avakian, supra; Hayward v. Hayward, 1 Swab. & T. 85; 164 Eng. Reprint 640. It does not appear that any creditor in fact relied upon the order in extending credit to the wife, and further, as a matter of law, no creditor would have been justified in so relying. The interest of creditors does not tip the scales in favor of the executor’s application.

The court is well aware that the effect of denying the executor’s application is by indirection to cancel such arrearages as there may be. But this the court has power to do, and in the instant case, in the exercise of a sound discretion, ought to do.

It is unnecessary, therefore, to consider the other matters urged in defense of the application.

A decree of dismissal of the bill will be advised, on the court’s own motion. It should not remain pending of record when in fact it has long since abated, and the court is in duty bound to decree its dismissal for want of jurisdiction. Reid v. United States, 211 U. S. 529; 53 L. Ed. 313; 29 S. Ct. 171; Ysern v. Horter, 94 N. J. Eq. 135, 141; 118 Atl. Rep. 774; 15 C. J. 852 § 171.

Such decree of dismissal, silent as to any accumulations of unpaid installments arising under the ad interim order, will as effectually dispose of the executor’s claim as would an order denying his application. Lief v. Lief, 14 N. J. Mis. R. 27; 178 Atl. Rep. 762.


author: Pee Curiam.

text:
    BART R. BOYLE, PROSECUTOR, v. LUCIUS F. DONOHOE ET AL., ETC., THE BOARD OF COMMISSIONERS OF THE CITY OF BAYONNE, RESPONDENTS.
    Submitted October 11, 1935
    Decided December 11, 1935.
    Before Justices Case and Bodine.
    For the prosecutor, Bart R. Boyle, pro se.

    For the respondents, Alfred Brenner.

   Pee Curiam.

This is a companion case to O’Connell v. Board of Commissioners of the City of Bayonne, 116 N. J. L. 61. The causes were consolidated by stipulation of counsel. Although there are differences in some of the facts, a like general result is reached. Bjr the same series of corporate acts by which O’Connell was named corporation counsel, Boyle was named city attorney.

The writ brings up the record on which prosecutor grounds his title to office, and first of all, appropriately perhaps because upon it prosecutor’s appointment depends, appears the resolution of February 6th, 1934. We are asked, in effect, to find that his appointment, issuing out of that unlawful proceeding is valid. That that proceeding was unlawful, we have no doubt; and our reasons appear in the O’Connell case. Whatever technicalities be evoked, the basic fact is that the prosecutor, no longer an incumbent, seeks, by our finding, to have an office issuing out of that wrongful municipal act restored to him against the present city government which has repealed the illegal resolution and sought to undo its fruits. The legal status of Boyle and O’Connell is not bettered by the fact that both of them, shortly after they were appointed, signed undated resignations effective May 21st, 1935, and handed the same to one of the commissioners to be used at the latter’s discretion, and that the resignations were delivered to other hands, were submitted to the reorganized commission on June 25th, 1935, and were accepted; although respondent’s argument thereon is to the point that the incident is a factor contributing towards the illegality of the whole proceeding and not that the resignations were effective as a termination of valid appointments.

We think that the writ should be dismissed. That will be the order; with costs.


author: Per Curiam.

text:
    EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, A CORPORATION, PROSECUTOR, v. HARRY NEUMAN, DEFENDANT.
    Argued October 3, 1935
    Decided December 11, 1935.
    Before Justices Case and Boduste.
    For the prosecutor, Collins & Corbin, Edward A. Marlcley and James B. Emory.

    For the defendant, Harold Simandl.

   Per Curiam.

The writ brings up an order by the judge of the First District Court of the city of Newark denying the motion of the present prosecutor, defendant in the District Court action, to set aside the service of summons in an action brought against it by Harry Neuman.

Prosecutor is a foreign corporation authorized to do business in this state and, before the disputed service, had designated the commissioner of banking and insurance its attorney upon whom process might be served. Its contention is that the person served had no authority in that respect. The proofs sustain a finding that the person served with process had been conspicuously held out by the prosecutor for nearly twenty-five years as its general agent in this state. That agent, not only solicited insurance, but performed other acts for prosecutor in and about its insurance business. The action was upon an insurance policy. For the reasons given in our determination of Massachusetts Protective Association, Inc., v. Louis R. Freund, Judge, &c., et al., 116 N. J. L. 65, the prosecutor should not now be permitted to prove that that person was not its agent or that, if he be its agent, his powers were special and not such as to justify the -service of process upon him.

The finding below will be affirmed, and the writ of certiorari will be dismissed, with costs.


author: La whence, 0. C. J.

text:
    C. I. T. CORPORATION, PLAINTIFF, v. SAMUEL FERTIG, DEFENDANT.
    Decided December 14, 1935.
    For the plaintiff, Walter Fox.

    For the defendant, Samuel Sladkus.

   La whence, 0. C. J.

This suit was submitted to the court, without a jury, at the Monmouth Circuit. The facts were stipulated. On May 25th, 1932, defendant Fertig purchased of Charles F. Straub, a dealer, a Plymouth coupe for $764.12, trading in another car valued at $227, evidencing the remainder of the purchase price by a conditional sales contract of the usual type and a promissory note. On the same day Straub assigned the contract and transferred the note to plaintiff, a finance corporation, for a valuable consideration. Neither the contract nor a copy was filed in the county clerk’s office as required by the Conditional Sales act. Pamph. L. 1919, ch. 210, p. 461, §§ 5, 6; Cum. Supp. Comp. Stat. 1911-1924, p. 3130, § § 182-91, 92. This was the result of oversight or neglect on the part of plaintiff. By virtue of the contract, the motor vehicle was delivered to defendant.

On March 2d, 1932, International Accountants Society, Incorporated, brought suit against Fertig in the District Court of the city of New Brunswick to recover of Mm an indebtedness of $135. On March 24th, 1932, judgment was entered in favor of the society for $135 and $11.31, costs of suit. An execution was issued thereon out of that court and later returned unsatisfied. It is to be observed that this judgment was obtained two months before the execution of the conditional sales contract between Straub and Fertig for the motor car in question. On February 8th, 1933, the society caused an alias execution to be issued out of the District Court on its judgment and the car was levied upon as the property of Fertig. A valid lien was thus .secured, inasmuch as neither the conditional sales contract nor a copj' had been filed as required by the statute {supra). Nor did it appear that the plaintiff in the judgment had any actual knowledge of it. The finance corporation (plaintiff here), realizing that its interest was in jeopardy, without consulting Fertig or making known to him its purpose, paid the society $135 in satisfaction of the District Court judgment. A satisfaction piece indicating, however, that Fertig as defendant therein had paid it was filed in the office of- the clerk of the District Court and the judgment was canceled of record. Why plaintiff did not take an assignment of the judgment does not appear. Having paid or satisfied the judgment, it thereupon took possession of the car, presumably under the conditional sales contract, returned it to Straub, the dealer, and the latter reimbursed it for all moneys advanced by it as assignee, although it does not appear that Straub paid it anything for securing a cancellation of the District Court judgment against Fertig or to reimburse it for the expense of recovering possession of the ear.

Plaintiff in the suit here considered seeks to recover of Fertig $135, the amount which it paid to obtain satisfaction of the District Court judgment; $3 for a storage charge after it had taken possession of the car, and $2.40 as expense involved. The suit is rested on the theory that a conditional vendee is under an obligation to reimburse the conditional vendor, or his assignee, for disbursements made in the preservation of the property covered by the contract. It is to be noted that nothing remains due plaintiff as assignee on the contract itself. It has been fully paid in that regard by Straub. The only pertinent inquiry appears to be whether it can require Fertig to pay it for disbursements which it was obliged to make in protecting its interest due to its own carelessness in not having the conditional sales contract or a copy-filed, thus enabling a judgment creditor of Fertig to obtain a lien upon the car. It is not suggested that the latter was under a duty to have the contract filed, or that the neglect to do so is chargeable to him; nor that the money paid to satisfy the judgment was so paid at his request. The general rule appears to be that “one who has been compelled to pay out money which another in good conscience and equity should have paid, or should have prevented his being required to pay, may recover from the other the money so paid, unless he was so compelled to pay by reason of his own mistake or negligence.” 41 C. J. 12, § 3-B. See, also, Harris v. Compton, 4 N. J. L. 177, cited in Liddel v. McVickar, 11 Id. 44 (at p. 55), and the footnote to Ferrel v. Rodgers, 1 Id. 265 (*228), quoting from Jones v. Willson, 3 Johns. 434. The money here involved was paid out by plaintiff because of its failure to have the conditional sales contract filed as required by the statute through no fault of Fertig and without his knowledge or consent. This was not money spent to preserve the property but to protect plaintiff’s interest as assignee of the contract against the hazard which it itself had negligently caused. It would seem consequently that since defendant had nothing to do with the matter no cause of action has been shown. Paraphrasing the text in Harris v. Compton, supra, plaintiff could not, without defendant’s request, pay money for him or otherwise take upon itself his liability, and thereby create a duty upon which it can maintain a suit at law. It could not change defendant’s responsibility by its own misconduct and neglect. Judgment may be entered in favor of defendant and against plaintiff of no cause. No costs will be allowed.


author: John C. Wegnek, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MATTHEW NAPOLEON, PETITIONER, v. JERSEY CITY COAL AND ICE COMPANY, RESPONDENT.
    Decided December 3, 1935.
    Por the petitioner, Levitan & Levitan.

    Por the respondent, Wall, Haight, Carey & Hartpence.

   ❖ * # # # * *

I do find and determine from the evidence taken in this cause as follows:

1. That the petitioner was on the 24th day of March, 1928, in the employ of the respondent in the capacity of coal carrier.

2. That at the time of the injury the said Matthew Napoleon received as wages in said employment, the sum of thirty-eight ($38) dollars per week.

3. That on the 24th day of March, 1928, the said Matthew Napoleon, while in the course of his employment, and engaged in the work of carrying coal for respondent, injured his left foot on a nail which caused serious infection of the left foot, which subsequently developed into osteomyelitis affecting the last metatereal of the left root.

4. That the respondent herein had knowledge of said accident, and has had proper notice of the same.

5. That respondent did not deny said accident and under date of March 28th, 1930, stipulation and judgment was signed allowing petitioner temporary compensation from March 24th, 1928, the date of the accident, to March 3d, 1930, and a permanency of thirty-three and one-third per cent, of the left foot or forty-three and three-fourths weeks compensation at the rate of $17 per week.

6. That subsequently petitioner filed a formal petition alleging further temporary disability and increased permanency as well as an injury to the right leg.

7. That respondent again settled with the petitioner allowing him permanent compensation based upon twelve and one-half total or sixty-two and one-half weeks at $17 per week. This was to cover temporary and permanent disability alleged and at that time it was agreed that there was no disability to the right leg as the result of the accident. This order was signed July 19th, 1932, and the respondent argues that same was a complete and final closeout.

8. That on May 27th, 1933, petitioner again filed a petition alleging an increased disability. No claim was made for temporary disability. Under date of September 13th, 1933, the attorney for the petitioner discontinued the action on petition for increased disability.

9. That on January 17th, 1935, a petition was again filed by petitioner for permanent injury to the left and right leg.

10. That this petition was filed within two years of the last payment of compensation, the last payment being made April 29th, 1933.

11. That respondent in its answer contends that the settlement of July 19th, 1932, was a full and final closeout, that the workmen’s compensation bureau has no jurisdiction and the statute of limitation applies.

12. That on May 23d, 1935, respondent moved for dismissal of petition on the above grounds, which motion was denied for reasons hereinafter stated. Eespondent subsequently moved for dismissal on July 25th, 1935, and again on October 22d, 1935.

13. That the motion of the respondent for dismissal on the ground of the statute of limitations was denied under the authority of the cases of Hahne v. McLaughlin, 12 N. J. Mis. R. 6; 169 Alt. Rep. 542, and Ecken v. O’Brien, 115 N. J. L. 33; 178 Alt. Rep. 373.

13a. That under the eases of Federal Leather Co. v. DeRensis, 113 N. J. L. 235; 174 Alt. Rep. 163, and Anderson v. Public Service, 114 N. J. L. 515; 177 Alt. Rep. 865, referred to in the case of Ecleen v. O’Brien, supra, before a case can be held to be a full and final closeout, testimony must be taken on the merits of the case. This case further holds that if the order has the elements of a final award and judgment, it is reviewable under paragraph 21(f) of the act upon the grounds of increased disability.

14. That from the testimony of the petitioner and his doctors it would appear that the condition had healed but subsequently broke down and petitioner has needed treatment off and on since the date of the accident. In the testimony taken at the hearing of July 7th, 1932, it was found that Dr. Saul Kleinberg, who treated petitioner, testified for respondent, and stated that he first examined petitioner in January, 1929, found an osteomyelitis of the left foot, between that time and the latter part of 1930, operated upon him three times and discharged him in January, 1932, healed. Six other doctors testified for both petitioner and respondent, and testified that the condition they found as of July 7th, 1932, was stationary and temporary disability had ended previous to that date. There is the testimonjr taken in connection with the last petition, the testimony of Dr. Rector who stated that when he examined petitioner on June 24th, 1935, he was under temporary disability and further that petitioner’s foot should be amputated. Dr. Morris Feldman also testified for petitioner and stated he first treated petitioner on July 16th, 1934, and continued until September 13th, 1934, when he discharged him, the wound being healed. Dr. Feldman subsequently testified that he examined petitioner on October 3d, 1935, and petitioner was in need of further treatment and could not work at that time.

15. That respondent offered no medical testimony and rested, pressing its motion for dismissal on the grounds heretofore stated.

16. Section 11, paragraph A reads in part that temporary disability produced by injury shall be paid during the period of such disability but not exceeding three hundred weeks. In Creagh v. The Nitram Co., 84 N. J. L. 243; 86 Atl. Rep. 435, the Essex Common Pleas considered temporary disability as extending to such time as the injured employe is sufficiently recovered from the effects of the injury to enable him to resume work. Vishney v. Empire Steel and Iron Co., 87 N. J. L. 481; 95 Atl. Rep. 143; Kelley v. The Seltzer Bennett Co., 38 N. J. L. J. 336; McManus v. Barbour Flax Spinning Co., 40 Id. 118, and International Motor Co. v. Purcell, 91 N. J. L. 707; 103 Atl. Rep. 860, all hold the same view as that expressed in Creagh v. Nitram, 35 N. J. L. 328.

17. That from the testimony of petitioner’s doctors, petitioner is entitled and allowed temporary disability compensation from July 16th, 1934, to September 13th, 1934, the period he was treated by Dr. Eeldman, and that from January 17th, 1935, the date of filing his petition to date, and continue until such time as permanent disability can be determined. The respondent is to furnish necessary medical attention as provided in section 14 of the act, and medical allowances for court appearances by doctors as follows:

Dr. Sector—$25 payable by respondent.

Dr. Eeldman—$25 payable by respondent.

Medical bills for treatment:

Dr. Feldman—$120 payable by respondent.

Medical Center—$317.50 payable by respondent.

Dr. Haver—X-rays, $10, payable by petitioner.

18. That while there is a question of whether or not petitioner received authorization as provided under the act in this instance, there is no question that such treatment was needed, and that the respondent’s interest were not in any way prejudiced by the same, and that therefore the same should be paid by the respondent.

It is, therefore, on this 3d day of December, 1935, * * * ordered that the respondent herein, pay or cause to be paid to the said petitioner the sum of $17 per week as temporary disability compensation for' a period from the 16th day of July, 1934, to September 13th, 1934, and from January 17th, 1935, to date, and to continue until the permanent disability can be determined,, together with the taxed costs of this proceeding.

*******

John C. Wegnek, Deputy Commissioner.


author: Daniel A. Spaib, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ISAIAH MILLIKEN AND EDWARD MILLIKEN, PETITIONERS, v. BOARD OF FREEHOLDERS, MONMOUTH COUNTY, RESPONDENT.
    Decided December 11, 1935.
    Por the petitioners, Thomas F. ShebeTl.

    Por the respondent, William A. Stevens.

   * * * ¡¡c * *

It appears that the petitioners were in the employ of the respondent on January 24th, 1935, as laborers; that on that date they were assigned to a section of the highways of the county of Monmouth leading from Preehold to Matawan; that they were given shovels with which to remove snow from the highway; that the petitioners commenced work at about six-thirty p. m.; that they were obliged to leave work about eleven p. m. on the same evening, for the reason that their hands and feet had become wet and frozen on account of the low temperature; that on the following day they were instructed by Walter Conover, county road supervisor, to go to Dr. Howard JB. Mason for treatment. It developed that the petitioners were suffering from frostbite, due to the extreme cold weather and that as a result thereof, sustained both temporary and permanent disability.

It is not disputed that the respondent is the governing body of the county of Monmouth, in charge of the care and maintenance of the roads and bridges within the territorial limits of the county of Monmouth. It is also not disputed that on January 24th, 1935, a severe snowstorm and blizzard enveloped the county of Monmouth, and as a result thereof, the county highways over which the respondent had jurisdiction, were blocked to travel, due to drifting snow.

It is the contention of the respondent that the petitioners were employed in an emergency to clear county roads in Monmouth county following a snowstorm of approximately that date, of snow drifts blocking the county highway; that the employment was casual in the emergency and but temporary in character to meet the particular situation of opening the roads to travel.

It appears that the petitioners were employed for this specific work; that Isaiah Milliken had never worked for the county before, and that Edward Milliken had been previously employed by the county as a dishwasher, at one of the county homes, in the winter of 1933.

Section 23 (c) of chapter 95 of the laws of 1911, as amended (Cum. Supp. Comp. Stat. 1911-1924, p. 3885, § **236-32 (c), reads as follows: “Employer is declared to be synonymous with master, and includes natural persons, partnerships and corporations; employe is synonymous with servant, and includes all natural persons who perform service for another for financial consideration, exclusive of casual employments, which shall be defined, if in connection with the employer’s business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring.”

Casual employment when connected with the employer’s business, is defined in the act to be, “as employment, the occasion for which arises by chance or is purely accidental.” The word “occasion” refers solely to the employment which must arise by chance or be purely accidental, in order to constitute the employment as a casual one.

The business of the county of Monmouth is to keep the roads in good repair and at all times keep them open for traffic and also to keep said roads free from snow and ice. Snow and ice are reasonably to be expected in the State of New Jersey during the winter time. Therefore, it cannot be fairly maintained that the occasion for the employment of the petitioners to remove the snow from the roads of the county of Monmouth was casual employment within the legislative definition. The occasion of the employment refers to the employment arising from the business of the employer, which, in this particular case, was to keep the roads free from obstructions arising from any cause, and therefore, when petitioners were employed, they were employed for employment within the scope of the employer’s business. A fall of snow which obstructed the highways of the county of Monmouth was an incident among other things which might be expected to occur in the course of employer’s business and be connected with it and hence the employment was within the scope of employer’s business. It cannot be said that the occasion arose by chance or by accident, because a snow fall at the end of the month of January in the county of Monmouth is not such an unexpected event that it necessarily falls within the realm of chance.

It is my conclusion that the petitioners, Isaiah Milliken and Edward Milliken, sustained an accident arising out of and in the course of their employment with the respondent on January 24th, 1935, and that such employment was not casual employment.

$$$$$$$

Daniel A. Spaib, Deputy Commissioner.