author: Del Mae, J.

text:
    Bergen County Orphans Court.
    IN THE MATTER OF THE FINAL ACCOUNT OF THE EXECUTOR OF THE ESTATE OF HARRY V. READ, DECEASED.
    Decided September 27, 1946.
    Proctor for the accountant, Bernard A. Green.

   Del Mae, J.

The executor has filed his final account praying for its allowance, also for the allowance of counsel fees and disbursements. The matter coming on for a hearing, the allowance of executor’s commissions and counsel fees was waived. Ho exceptions have been filed and the surrogate’s report did not call attention to any items which should be disallowed. One of the beneficiaries is a minor. He was not represented by any guardian and no request was made of the court to appoint any. The court, on its own motion, appointed William A. Schmidt as guardian ad litem of the infant.

Whether or not accounts of executors are excepted to, it is tile duty of the court to examine them and the vouchers and receipts for payments and disbursements claimed therein and decree an allowance of the account as stated only if found to be correct. B. 8. 3 :10—15; N. J. 8. A. 3:10-15. In re Schlemm, 130 N. J. Eq. 295 (at p. 307) ; 22 Att. Bep. (2d) 364; Conover v. West Jersey Mortgage Co., 96 N. J. Eq. 441; 126 Atl. Rep. 855. This duty becomes especially important when the rights of an infant are concerned.

Such examination by the court discloses payments amounting to two thousand one hundred ninety-one dollars and seventy-five cents ($2,191.75) to Morris Levine, to Hevas & Hevas, and to Wasserman, Behr & Shagan for legal services and disbursements. Query: Are these proper charges against the estate?

It does not appear that any of the persons mentioned are members of the bar of this state. ' It does appear that the services alleged to have been rendered were rendered since the effective date of R. 8. 2 :20—9; N. J. 8. A. 2 :20—9.

The vouchers covering the alleged legal services show no details thereof, not even that the services were such that the advice of attorneys of another state was necessary or desirable.

The proctor who appeared in court for the executor and asked for a decree allowing the account did not call the court’s attention to these items in the account and did not make any request for adjudication as to their fairness. The evident design was to circumvent the effect of the aforesaid statute by having the account approved as filed. The question arises as to whether a fiduciary may employ foreign counsel, pay them out of the funds of the estate and rely upon his vouchers as justification for such payment.

The Court of Errors and Appeals in In re Babcock, 113 N. J. Eq. 374; 164 Atl. Rep. 407, 408, held that: “The executor would be derelict if he made payment of a counsel fee without court allowance and might, if the same was improper, have been surcharged therefor.” The same court in In re Merz, 132 N. J. Eq. 313; 38 Atl. Rep. (2d) 176, held that: “The prevailing practice is for the representatives of decedent’s estate on their accounting to seek an allowance for counsel who have advised them. Eees for services rendered to them should he allowed by the court, since some of the beneficiaries might otherwise object.” Also held: “The court is concerned only in fixing an amount that is fair under the circumstances of each particular ease. Any other practice would require the attorneys employed by a decedent’s estate to sue the representative at law. They would then have to seek the approval of the Orphans Court for payment of the judgment.” This case, I think, recognizes the right of a fiduciary to employ an attorney and the right of the attorney to recover the reasonable value of his services by a decree of the Orphans Court.

I have noted the opinion of the learned judge of the Orphans Court in In re Foster, 13 N. J. Mis. R. 36; 176 Atl. Rep. 156, 158, that: “Attorneys employed by a personal representative to assist him in administering his trust or to prosecute or defend actions for or against him in his official capacity have no claim they can enforce directly against the estate.” (Emphasis mine.) The same doctrine was approved in the Court of Chancery in Lewis v. Morgan, 132 N. J. Eq. 343; 28 Atl. Rep. (2d) 215. The only New Jersey case cited to support these opinions is Doolittle v. Willet, 57 N. J. L. 398; 31 Atl. Rep. 385, which decision is based upon a contract to purchase supplies used in a business conducted by the decedent’s son and another. This business was in no way connected with the administration of the estate. One ease therein cited, namely, Laible v. Ferry, 32 N. J. Eq. 791, also deals with an executor who was empowered by the will of the testator to carry on his business after his decease and alludes to a debt contracted in connection with such business by the executor, and held that, even though the executor was personally liable for such a debt, he was entitled in equity to be indemnified out of the property lawfully embarked in the business. The other case cited is Wild v. Davenport, 48 N. J. L. 129; 7 Atl. Rep. 295, which ease recognizes the doctrine that where an executor has the option of entering a partnership of which the decedent was a member, and does so voluntarily, he becomes personally liable for debts for the reason that he has of his own volition engaged in the business as a principal, and is a contracting party, but held that, under the facts in that case, the executor did not become a partner and, therefore, was not liable.

The rights of an executor to employ agents to help administer an estate is too well settled to admit of any controversy. So is the power of the Orphans Court to allow the reasonable value of services so rendered in proper eases, settled by many decisions. It may well be that a fiduciary who employs the services of an attorney and agrees to pay a specific sum therefor becomes personally bound and can be sued individually on such contract in a court of law, but, where the agreement is to pay for the reasonable value of such services, since the eourt having jurisdiction over the accounting is empowered to fix the reasonable value thereof, I think it becomes an implied term of the hiring that the compensation is to be fixed by the court.

In In re Barsotti v. Bertolino, 128 N. J. Eq. 363; 16 Atl. Rep. (2d) 454, 456, it was held thati “The services of counsel of a foreign jurisdiction are not required in the absence of special circumstances, such as litigation in the foreign forum or questions which are governed by the law of that jurisdiction.”

In In re Turnbull, 1 N. J. Mis. R. 41, Judge Flannagan of the Essex County Orphans Court, said: “It is the established practice before this court to apply to the court to fix the amount of counsel fees at the time the final account is submitted and before they are paid, and not to pay counsel fees in advance and then submit them for allowance in the form of an expenditure already made. A departure from the established practice, as was done in this case, is not looked upon with favor by the court;” and, therefore, “where payments for attorneys’ fees have already been made only such amounts will be allowed as are established as reasonable compensation.” (Citing Hurlbut v. Hutton, 44 N. J. Eq. 308; 15 Atl. Rep. 417, and Kingsland v. Scudder, 36 N. J. Eq. 287).

Prom the foregoing cases I think it may be gathered that a fiduciary has no power to bind the estate which he represents fco pay specific compensation to attorneys whom he may employ to help him in the administration of the estate, and, if he makes payments to such attorneys, he does so at his peril and that the allowance of such payments should only be made by the court if they are, in the opinion of the court, reasonable and necessary, and that where foreign counsel are employed, special circumstances must be shown for the necessity thereof.

The executor not having shown any necessity for the employment of foreign counsel and having presumed to usurp the functions of the court by paying for legal services allegedly rendered by lawyers not members of the blew Jersey bar, and in apparent violation of R. S. 2:20-9; N. J. S. A. 2:20-9, his account will be surcharged for the sum of such payments, which are hereby disallowed.


source: Caselaw Access Project

author: Eastwood, C. C. J.

license: Public Domain

text:
    Cumberland County Circuit Court.
    IRENE B. SHEPPARD, PLAINTIFF, v. PHILADELPHIA RECORD COMPANY, A CORPORATION, DEFENDANT.
    Decided September 24, 1946.
    For the plaintiff, Stanger & Howell.

    For the defendant, Boyle, Archer & Greiner.

   Eastwood, C. C. J.

Application has been made to me by the defendant corporation in the above matter to quash the writ of attachment issued out of the Cumberland County Circuit Court on March 7th, 1946, on the ground that the writ in question was improperly executed by the sheriff of Cumberland County and having been so defectively executed that the writ has no legal vitality. In opposition to the defendant’s motion, it is maintained by the plaintiff that the writ was properly executed by the sheriff or that in the event the writ was not properly executed then this court may exercise its power of amendment to cure such alleged defective execution. It is. also contended by the plaintiff that the defendant has, by its actions, taken such steps in the cause as constitute a general appearance, and that, therefore, the defendant has admitted the jurisdiction of the court and the defendant is thereby estopped to question the effectiveness of the method by which it was brought into court.

It appears that the writ, sub judice, was issued in accordance with the provisions of B. 8. 2:42-72, et seq.; N. J. S. A. 2:42—72, et seq. Pamph. L. 1903, ch. 247, as amended by Pamph. L. 1907, ch. 114, commonly known as the Practice Act of 1903. Parenthetically, it may be observed that attachment proceedings under the Practice Act of 1903 are comparatively rare, the more popular procedure and that generally followed being proceedings under the Attachment Act of 1901. Pamph. L. 1901, ch. 74. B. 8. 2:42-l, et seq.; N. J. 8. A. 2 :42-l, et seq. However, it is provided in B. 8. 2:42—76; N. J. 8. A. 2:42-76, that the issuance of writs of attachment, and the practice and procedure relating thereto under the Practice Act of 1903, shall be the same as in eases of attachment under the Attachment Act of 1901.

As to the salient facts before me it may be briefly stated that they are as follows: On March 7th, 1946, the writ of attachment in question was issued out of the Cumberland County Circuit Court in the amount of $1,500 on the order of a Supreme Court Commissioner, who awarded the writ in the sum of $1,500 against the rights and credits, moneys and effects, goods and chattels and real estate belonging to the defendant in this state. Pursuant to the order and the writ the sheriff of Cumberland County, together with one Samuel E. Brown, a freeholder of said county, went to the premises of one Earl Hummel, Sr., trading as South Jersey Hews Agency, Bridgeton, Hew Jersey, to the premises of one George Bozarth, Millville, Hew Jersey, and to the premises of one Louis H. Steiner, "Vineland, Hew Jersey, all of whom were news dealers and then and there declared that he, the sheriff, attached moneys in the hands of the said news dealers due and owing to the defendant, Philadelphia Beeord Company. The sheriff then proceeded to make an inventory and appraisement in the presence of the said Samuel E. Brown, which inventory was set forth in the following words: “Money ia the hands of [the named news dealers] due and owing to Philadelphia Beeord Company, a corporation.” Hnder the •word appraisement appears the word “Unknown.” The sheriff left a copy of the writ with each of the news dealers and returned the writ into court on March 14th, 1946. The plaintiff filed her complaint on April 1st, 1946, together with a rule to plead. The defendant then served notice of this application, service of which was acknowledged by plaintiff’s attorneys on April 25th, 1946, and which motion was argued before me orally at chambers in Bridgeton. Because of the novelty of the question presented for adjudication I have requested written memoranda to be filed, which has been done, the benefit of which I have had and which have been of very material assistance in aiding the court in arriving at its decision.

It will be immediately perceived that the legality of the writ in question depends entirely upon whether or not the same was properly and legally executed by the sheriff of Cumberland County. If so, then our inquiry is at an end and the writ must stand. If not, this court is without jurisdiction and the writ must fall. Directing our attention to the provisions of B. 8. 2:42—18; N. J. 8. A. 2:42—18, relating to the execution of the writ and the inventory and appraisement the statute provides:

“The officer to whom an attachment is directed shall execute it by going to the house or lands of defendant, or to the person or house of the person having the custody or possession of defendant’s property and estate, and then and there declare, in the presence of at least one credible person, that he attaches, at the suit of plaintiff, the rights and credits, moneys and effects, goods and chattels and real estate of the defendant, at the suit of the plaintiff. He shall, with the assistance of one discreet and impartial freeholder, make a just and true inventory and appraisement, signed by himself and the freeholder, of all the property and estate of the defendant so by him attached. The freeholder shall be allowed one dollar a day for his assistance, to be paid by the officer and included in his fees. The inventory and appraisement shall be annexed to and returned with the writ, with an indorsement on the writ of the true time of its execution and signed by the officer.”

It will thus be seen that one of the indispensable requirements of the execution of the writ is that “He [the sheriff] shall, with the assistance of one discreet and imparial freeholder, make a just and true inventory and appraisement, signed by himself and the freeholder, of all the property and estate of the defendant so by him attached.” In the case at bar this has not been done. The appraisement places no value upon the property attached. The value, if any, is baldly stated to be “Unknown.” The plaintiff has thus failed to comply with a jurisdictional requirement of a valid writ of attachment. The several cases cited by the plaintiff to the effect that this court has the power to amend the writ so as to set forth the true nature of the inventory and appraisement are not in point. The cited eases refer solely to the power of amendment with respect to ministerial acts and can in nowise be construed so as to permit an amendment to cure a jurisdictional deficiency.

Hor can the argument of the plaintiff prevail to the effect that the defendant by its subsequent actions has entered a general appearance and can not, therefore, object to the form or mode of execution of the writ of attachment in question. A defendant may, of course, waive any defects in the process or its service, and may confer jurisdiction upon the court so far as his person is concerned by so doing, but he can not thereby give a court jurisdiction over the cause of action. See Ex parte Hall, 94 N. J. Eq. 108; 118 Atl. Rep. 347; Myslewitz v. Sullivan et al., 102 N. J. L. 61; 131 Atl. Rep. 57; Collins v. Wheaton, 85 N. J. L. 508; 89 Atl. Rep. 1004. Jurisdiction over the subject-matter of a suit can not be conferred by consent; nor can the right to object to such jurisdiction be lost by neglect or acquiescence. Woolworth & Co. v. Zimmerman, 13 N. J. Mis. R. 505; 179 Atl. Rep. 474; King v. Scala, 110 N. J. L. 321; 165 Atl. Rep. 426; Lazorchak v. Demarest, 108 N. J. L. 198; 157 Atl. Rep. 137; Handelman v. Harris, 93 N. J. L. 66; 107 Atl. Rep. 34.

I find that as a matter of fact the sheriff in his inventory and appraisement annexed to the writ in question and returned into this court failed to make a just and true inventory and appraisement of the defendant’s property in the hands of the several news dealers above enumerated; that the failure so to do constituted a fatal jurisdictional defect, which this court is without power to amend and which is not cured by the alleged subsequent appearance of the defendant in the suit. The writ must accordingly be vacated. Counsel may present an appropriate rule.


author: Waesche, President.

text:
    Division of Tax Appeals.

      IN THE MATTER OF THE APPEALS FILED BY THE CITY OF JERSEY CITY TO INCREASE THE 1945 TAX ASSESSMENTS LEVIED ON REAL PROPERTY LOCATED IN SAID CITY, OTHER THAN SECOND CLASS RAILROAD PROPERTY.
    Decided September 3, 1946.
   Waesche, President.

On or about January 10th, 1945, the assessor of Jersey City filed with the Hudson County Board of Taxation his 1945 complete assessment list and duplicate, as the law required him to do. Chapter 120, Pamph. L. 1943; N. J. 8. A. 54:4^35. The Hudson County Board of Taxation, after investigation, revised, corrected, and equalized the assessed value of all real property in Jersey City, and did everything necessary for the taxation of property in Jersey City equally and at its true value, as the law required it to do. R. S. 54:4^46, 54:4^47; N. J. 8. A. 54:4-46, 54:4-47. Jersey City certified to the Hudson County Board of Taxation its budget for the year 1945, and the said Tax Board computed and determined the tax rate for Jersey City for the year 1945 at the rate of $6,072 per $100 of valuation. Chapter 316, Pamph. L. 1942; N. J. 8. A. 54:4-52.

The Hudson County Board of Taxation certified to the Jersey City tax collector the revised and corrected 1945 assessment list and duplicate and the 1945 tax rate of $6,072. The Jersey City tax collector collected the 1945 taxes levied on the real property located in Jersey City on the valuation assessments as fixed and determined by the Hudson County Board of Taxation at the tax rate of $6,072 per $100 of valuation.

On June 19th, 1945, the Board of Commissioners of Jersey City adopted the following resolution:

“Whereas the forms of petition of appeal adopted by the Hudson County Board of Taxation require that the petitioner be duly authorized to make the affidavit or verification required thereby, now therefore, be it

“Resolved, that the Director of Revenue and Finance or his deputy be and they hereby are authorized to execute petitions of appeal by the City of Jersey City to the Hudson County Board of Taxation in all eases where the assessment, as certified by the Hudson County Board of Taxation for the year 1945, does not reflect the true value of the property assessed, and they are further authorized to do and take any or all other action or actions that may be required to prosecute the same to final determination.”

Pursuant to the foregoing resolution, the Deputy Director of the Department of Revenue and Finance of Jersey City filed with the Hudson County Board of Taxation 12,000 appeals from the 1945 valuation assessments on real property located in Jersey City.' By these 12,000 appeals Jersey City requested that the valuation assessments on the properties covered by the appeals be increased a total of $67,966,925. Such an increase in the assessed value of these properties would warrant the collection of $4,126,951.69 more taxes for 1945 than was authorized or required by the city’s 1945 budget.

The total assessed value of real property in Jersey City for the year 1945 as fixed and determined by the Hudson County Board of Taxation is $315,918,592. The total assessed value of the real property covered by the 12,000 appeals for the year 1945 as fixed and determined by the Hudson County Board of Taxation is $144,939,825, which is approximately forty-six (46%) per cent, of the total 1945 valuation assessment on all real property in Jersey City.

On September 25th, 1945, the Hudson County Board of Taxation adopted the following resolution:

“Resolved, that all petitions of appeal filed by the City of Jersey City for the increase of assessments for the year 1945'upon real property situate in that taxing district, be and the same are hereby dismissed; and be it

“Further Resolved, that a written order dismissing such petitions of appeal in accordance with this resolution be signed by Commissioners Loori, Wilkens and Ruhlmann, and that the same be incorporated into and made a part of this resolution as though recited in full; and be it

“Fuiithek Resolved, that certified copies of said order be forwarded to the Attorney and Collector of Taxes for said taxing district.”

Pursuant to the foregoing resolution, on September 28th, 1945, the Hudson County Board of Taxation entered the following order:

“Appeals in writing having been filed with the Hudson County Board of Taxation by the taxing district of Jersey City in each of which it is alleged that said taxing district feels discriminated against by reason of the assessed value of the several parcels of property described in each of said petitions, for taxation for the year .1945, located in Jersey City, in the County of Hudson;

“And it appearing to the Hudson County Board of Taxation that each of said petitions of appeal is filed without authority in law and that each of said petitions is insufficient to confer jurisdiction upon this Board;

“It is, on this 28th day of September, 1945, Ordered that each and all of the petitions of appeal filed with this board by the taxing district of Jersey City for the increase of assessments for 1945 upon real property situate in the City of Jersey City he and they are hereby dismissed.”

From the foregoing order of the Hudson County Board of Taxation, Jersey City filed with the Division of Tax Appeals 876 separate appeals. Several of the interested property owners have moved to dismiss those particular appeals which concern their properties on the ground that the Division of Tax Appeals is without jurisdiction to hear them. They contend that the appeals were filed with the Hudson County Board of Taxation without any authority in law, ergo, the Hudson County Board of Taxation had no jurisdiction to hear them. Therefore, the judgment of the Hudson County Tax Board should he sustained, and the appeals dismissed. Since that same question applies to all the 876 1945 Jersey City appeals now before the Division of Tax Appeals, we are concerned with, whether or not we have jurisdiction to hear any of them.

By special statutory authority, a taxing district “which may feel discriminated against by the assessed valuation of property in the taxing district” may appeal to the County Board of Taxation, B. S. 54:3-21; N. J. 8. A. 54:3—21. In other words, a taxing district may appeal “the assessed valuation of property in the taxing district” only when it “feels discriminated against” by reason of such assessments. Thus a taxing district’s right to appeal is expressly limited and qualified by the statute. This legislative authority to appeal is. not general; it is conditional.

Every word of the statute permitting taxing districts to appeal to county boards of taxation must be given its full significance and meaning; hence the meaning attributed to the words "may feel discriminated against." The cardinal principle for the construction of statutes is that they are to be construed so that, if possible, full effect shall be given to all parts of the statute. And a statute ought upon the whole to be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void, or insignificant. Den ex dem. James v. DuBois, 16 N. J. L. 285, 293; Steel v. Freeholders of Passaic, 89 Id. 609, 612; 99 Atl. Rep. 318; Household Finance Corp. v. State Board of Tax Appeals, 119 N. J. L. 230, 234; 196 Atl. Rep. 219; Diorio v. Fair Lawn, 118 N. J. Eq. 556, 562; 180 Atl. Rep. 557.

Municipalities or taxing districts have only the authority granted them by the legislature. In the ease of New Jersey Good Humor, Inc., v. Bradley Beach, 124 N. J. L. 162, 164; 11 Atl. Rep. (2d) 113, the Court of Errors and Appeals said:

“A municipal corporation is the creature of the legislature, and possesses only such rights and powers (a) as have been granted in express terms; (b) as arise by necessary or fair implication; or are incident to the powers expressly conferred, and (c) as are essential to the declared objects and purposes of the municipality—not merely convenient,' but indispensable. * * * Any reasonable or fair doubt of the existence of the asserted power, or any ambiguity in the statute whence it springs, or those in pari materia, is to be resolved against the municipality, and the power is denied. Municipalities are to be confined within the limits that a strict construction of the grants of powers will assign to them.”

See, also, Meday v. Rutherford, 65 N. J. L. 645; 48 Atl. Rep. 529, and Kosich v. Dover Township, 112 N. J. L. 281; 170 Atl. Rep. 248. In the case of Englewood v. Hopper, 54 N. J. L. 544; 23 Atl. Rep. 948, the Supreme Court held that any power to increase valuations of property for the purposes of taxation was a statutory power which must be exercised in strict compliance with the statute conferring jurisdiction. Consequently, a municipality’s right to appeal to a county board of taxation is purely statutory and is strictly limited to the powers granted by the statute.

In addition to being strictly limited to the authority granted them by statute, municipalities and taxing districts must show upon the face of their records all facts necessary to the exercise of the authority granted them by the legislature. As we have seen, the authority of a municipality or taxing district to appeal is expressly upon the condition that the taxing district feels discriminated against because of the “assessed valuation of property.” Therefore, a taxing district must show upon the face of its records that it feels discriminated against as a condition precedent to its right to appeal. State, Trask, pros., v. Garragan, Collector of Bayonne, 37 N. J. L. 264; State, Inhabitants of West Hoboken, pros., v. Anderson, Collector, 38 Id. 173; Clark Thread Co. v. Kearney Township, 55 Id. 50; 25 Atl. Rep. 327; McCallum v. Assessors, 58 N. J. L. 544; 34 Atl. Rep. 755. And the official records of the appealing municipal taxing district must also show whether it feels discriminated against because of assessments “in the taxing district” or because of assessments “in another taxing district in the county.” R. S. 54:3—21; N. J. S. A. 54:3--21. The legislature apparently recognized that assessments “in the [appealing] taxing district” might be too high compared with assessments in the other taxing districts in the county or that assessments “in another taxing district in the county” might be too low compared with assessments in the appealing taxing district, in either of which eases the appealing taxing district might feel discriminated against. But that situation does not now confront us. The appeals we are now considering are from assessments in the appealing taxing district, although they were not filed because the assessments are too high, but because the asesssments are too low. Therefore the feeling of discrimination which must open the door for these appeals to lie could be aroused only because these particular properties in Jersey City are assessed too low. Of eourse the Board of Commissioners of Jersey City could not, in good faith, declare that Jersey City feels discriminated against without first, having full knowledge of the particular assessments which gave rise to such feeling. Since those are the only assessments which could be appealed by the taxing district, no one except the Board of Commissioners could, possibly know which assessments to appeal. Therefore, the Board of Commissioners of Jersey City must also designate on their official records the particular assessments which they feel are discriminatory and which should, therefore, be appealed. ' In the case of Perrine v. Farr, 22 N. J. L. 356, 366, the Supreme Court held that:

“Ho principle is better settled, than that an officer exercising special statutory authority, or a tribunal of limited jurisdiction, must show its authority. If the case is not shown to be within the jurisdiction, it is presumed to be without it.”

In the case of Carron v. Martin, 26 N. J. L. 594, 600, the Court of Errors and Appeals said:

“In our judgment, public policy requires that the proceedings of our numerous municipal corporations should be kept strictly within the limits assigned to them by the statutes authorizing them, and if they appear not to come within those limits, they should not only be liable to reversal by certiorari, but also be held void and insufficient to support a title professing to be founded on them.”

In the case of State v. Council of Elizabeth, 30 N. J. L. 176, 178, the Supreme Court said:

“Inferior jurisdictions have upon them the burthen of showing their acts to be within the authority granted to them. What are called jurisdictional facts must appear on the face ©f their proceedings or otherwise.”

In the ease of State, Evans, pros., v. Mayor and Common Council of Jersey City et al., 35 N. J. L. 381, 386, the Supreme Court said:

“As they were exercising a special power, they must show, ©a the face of their proceedings, that they have pursued strictly the authority vested in them by the statute under which they act.”

In the ease of State, Wilkinson et al. v. Inhabitants of Trenton, 36 N. J. L. 499, 501, the Court of Errors and Appeals held that:

"The rale, when applied to public bodies entrusted by statute with powers of a general nature, where their acts are verified by an entry in their minutes, kept by the proper officer, is equally stringent, that it must appear from an inspection. of all the proceedings when properly before the court, that they have kept strictly within their limited sphere.”

In the case of Jersey City v. Hudson County Board of Taxation, 130 N. J. L. 309, 312; 32 All. Rep. (2d) 594, 596, the Supreme Conrt said:

"The connty board of taxation is a special tribunal, and it is well settled that such tribunals should show upon the face of their record all facts necessary to give jurisdiction.”

It has been repeatedly held that a municipality exercising a specially delegated power must strictly follow the procedure laid down by the legislature. The right of a municipality to appeal to the county board of taxation the assessed valuation of property is conditioned upon the municipality’s acting in good faith. This good faith must be shown by the exercise of reasonable discretion in the public interest when determining by resolution that the taxing district feels discriminated against because of certain assessments. The adoption of such a resolution is a step in the procedure required by the statute which must he followed before the right to appeal will lie. In the ease of State v. Perth Amboy, 29 N. J. L. 259, the Supreme Court held that the proceedings of municipal corporations must be exercised substantially in compliance with the terms on which they are granted. “Those terms,” the court said, “are the conditions on which the power is given, and any material departure from them is fatal to the proceeding.” In the ease of State, Baxter, pros., v. Mayor and Alderman of Jersey City, 36 Id. 188, the Supreme Court held that, “Every requirement of the statute prescribing the procedure to enforce it must be strictly conformed to.” See, also, Paret v. Bayonne, 39 Id. 559; Fleischauer v. West Hoboken, 40 Id. 109; Jones v. Landis Township, 50 Id. 374; 13 Atl. Rep. 251; McGovern v. Board of Public Works, 57 N. J. L. 580; 31 Atl. Rep. 613; App v. Stockton, 61 N. J. L. 520; 39 Atl. Rep. 921; Gross v. Hague, 99 N. J. L. 457; 123 Atl. Rep. 744.

As we have seen, in order for Jersey City to appeal any assessment, the Board of Commissioners of Jersey City must first determine, by the exercise of reasonable discretion, that the taxing district of Jersey City feels discriminated against by reason of certain property assessments, and then order appeals to be taken from those particular assessments. These necessary steps in the procedure leading to an appeal by Jersey City to the Hudson County Board of Taxation cannot be delegated to subordinate city officials. In the ease of Schwartze v. Camden, 77 N. J. Eq. 135, 140; 75 Atl. Rep. 647, 649, the court said:

“Where the legislature confers upon the legislative body of a municipality a power of such inherent quality, or in such manner that the exercise of the power in accordance with the legislative intent may be reasonably said to include the deliberative and concerted judgment and discretion of the members of the municipal legislative body, I think there can be found in the adjudicated cases no justification for a delegation of the discretion so conferred.”

See, also, State, Danforth, pros., v. Paterson, 34 N. J. L. 163; Harcourt v. Asbury Park, 62 Id. 158; 40 Atl. Rep. 690; Levy v. Mravlag, 96 N. J. L. 367; 115 Atl. Rep. 350; Librizzi, v. Plunkett, 126 N. J. L. 17, 22; 16 Atl. Rep. (2d) 280; 1 Dillon Municipal Corporations (5th ed.) 460, § 244; 1 McQuillan Municipal Corporations (2d ed.) 1093, § 393.

It does not appear that the Board of Commissioners of Jersey City adopted any resolution declaring that the city felt discriminated against. It does not appear that the Board of Commissioners of Jersey City ordered any assessments appealed to the Hudson County Board of Taxation because the city felt discriminated against. It appears that the Board of Commissioners of Jersey City authorized appeals of assessments only, because they did not reflect the true value of the property assessed, but the resolution does not mention any specific assessment from which an appeal was to be filed. From the record before us, it is obvious that the City of Jersey City did not follow the procedure necessary to file any of the 12,000 appeals with the Hudson County Board of Taxation. But even if the Board of Commissioners of Jersey City had declared that the taxing district of Jersey City felt discriminated against and specified the assessments of property in the taxing district which caused such feeling, we think the Hudson County Board of Taxation’s action in dismissing the appeals would have been proper. In our opinion, the facts in this case prove conclusively that the city could not reasonably have felt discriminated against because of the assessments appealed to the County Tax Board. Therefore, any resolution of the Board of Commissioners stating that the city felt discriminated against would have been in bad faith, contrary to the public interest, and therefore void. The assessments appealed to the Hudson County Board of Taxation were on real property which bore approximately fifty per cent, of the-total assessments on real property in Jersey City. It must be assumed that the land values in Jersey City for 1945 were uniformly assessed, as the law requires. See our opinion in the 1943 Jersey City appeals, 23 N. J. Mis. R. 311; 44 Atl. Rep. (2d) 189. An examination of the assessments on land appealed to the Hudson County Board of Taxation reveals that any increase in those assessments would raise them above the other assessments on comparable land in the same neighborhood which were not appealed, thus destroying the uniformity in the assessments as originally assessed and increasing the tax burden. Furthermore, if the assessments. on the real property under appeal were increased $67,966^925 as Jersey City requests, the state and county taxes assessed against Jersey City would be substantially increased. Consequently, the city would only be injured if the assessments on the land under appeal were increased. Therefore, it could not reasonably have felt discriminated against because of the assessments on land. The mere fact that assessments are below the true value of the property assessed does not give the city any right to appeal such assessments. That alone would not necessarily cause any discrimination against the city. The primary purpose of the law is to assess property uniformly, as required by the constitution, so that all property, except such as shall be exempt by law, shall bear its full, equal, and just share of taxes. In the case of Trustees of Public Schools v. City of Trenton, 30 N. J. Eq. 667, 677, the Court of Errors and Appeals said:

“The constitutional provision invoked relates only to the assessment of taxes, and in that respect it concerns only such equalization of the burdens of taxation as will result from the designation of the property which shall be the subjects of taxation, and the apportionment of the taxes thereon under general laws, by uniform rules and upon true valuations. The reasons which induced the adoption of this constitutional provision are deep-seated in principles of public policy. Its object was to secure to the people of the state the equalization of taxation, so far as was practicable, by requiring the imposition of taxes on property by general laws, on the principle of uniformity in the subjects of taxation and in valuations.”

In the case of State, ex rel. Trustees, &c., v. Township Committee of Readington, 36 N. J. L. 66, 70, the Supreme Court said:

“It is of the very essence of taxation that it should be equal and uniform, and that where the burden is common there should be a common contribution to discharge it.”

See, also, Trenton Water Co. v. Parker, Receiver, 32 N. J. L. 426; Weehawken Township v. Roe, Clerk of Hudson County Freeholders, 36 Id. 86: Stratton v. Collins, 43 Id. 562; Jersey City v. Vreeland, 43 Id. 638; Gross v. Hague, supra; City of Newark v. Timer et al., 12 N. J. Mis R. 125; 170 Atl. Rep. 37; Middletown v. Ivins, 102 N. J. L. 36; Township of Hillsborough v. Cromwell, 66 S. Ct. 445.

Moreover, the law does not permit a municipality to raise more money by taxation than the amount which is authorized by the annual municipal budget. By these appeals the Board of Commissioners of Jersey City are actually endeavoring to circumvent this law. The increase they seek in the assessments appealed to the Hudson County Board of Taxation would warrant the collection of $4,126,951.69 more taxes for 1945 than is authorized by the city’s 1945 budget. The legislature did not intend to provide a detour through the county boards of taxation by which municipalities might by-pass its laws controlling municipal budgets, thereby rendering them nugatory. (See our opinion in the matter of the appeals filed by the City of Jersey City to increase the 1943 valuation tax assessments levied on real property located in said city, other than second class railroad property. 23 N. J. Mis. R. 311; 44 Atl. Rep. (2d) 189.) And it is the duty of the administrative and judicial branches of the government to vindicate the law and to prevent its frustration.

The appeals filed by Jersey City with the Hudson County Board of Taxation to increase the 1945 valuation assessments on certain parcels of real property were filed without authority in law. Consequently, they were insufficient to confer jurisdiction upon the Hudson County Board of Taxation to hear said appeals. Since the Hudson County Board of Taxation had no jurisdiction to increase the assessments here under appeal, obviously neither have we. It is our duty to take notice of our lack of jurisdiction and to make an examination of our jurisdiction on our own motion. “Every court has judicial power to hear' and determine, or inquire into, the question of its own jurisdiction.” 21 C. J. 8., Courts, 174, § 113. “When at any time or in any manner it is represented to the court that it has not jurisdiction, the court should examine the grounds of its jurisdiction before proceeding further, the question of jurisdiction being always open for determination.” 21 C. J. 8., Courts, 175, § 113. “A court is bound to take notice of its limits of its authority; and it is its right and duty to make a preliminary examination of its jurisdiction to entertain the cause, of its own motion, even though the question is not raised by the pleadings or is not suggested by counsel.” 21 C. J. S., Courts, 175, § 114. Moreover, “where a court is without jurisdiction in the particular case, its acts and proceedings can be of no force or validity, and are a mere nullity and void, not voidable.” 21 C. J. 8., Courts, 177, § 116.

The judgment of the Hudson County Board of Taxation will be affirmed, and the appeals therefrom to the Division of Tax Appeals will be dismissed.


author: Eastwood, S. C. C.

text:
    PAUL S. WILKIE, PLAINTIFF, v. JOHN W. GOEHRIG AND MARY A. GOEHRIG, DEFENDANTS.
    Decided October 12, 1946.
    For the plaintiff, Frank I. Casey.

    For the defendants, J ohn L. Heher.

   Eastwood, S. C. C.

Application has been made to me on behalf of the plaintiff in the above matter to reopen a judgment by default entered in favor of the defendants on their counter-claim and to strike out the answer and counter-claim filed by the defendants on the ground that the defense proffered by the defendants is of an equitable nature and not cognizable in a court of law. Briefs have been submitted by the respective parties, accompanied by voluminous affidavits in support of their respective contentions. These have been considered and have been of substantial aid to me in arriving at the following conclusions.

An inspection of the pleadings reveals that the plaintiff, Wilkie, has instituted ejectment proceedings in the New Jersey Supreme Court for the eviction of the defendants, John W. Goehrig and Mary A. Goehrig, his wife, from a dwelling house and lot of land situate and known as Ho. 167 Locust Street, in the City of Trenton, Hew Jersey. To the complaint the defendants have filed an answer in the nature of a general denial and in addition thereto set up a defense designated as “First Separate Defense,” together with a counter-claim against the plaintiff for damages in the amount of $2,000. Apparently no answer to the defendant’s counter-claim was filed by the plaintiff and judgment thereon by default was accordingly entered in their favor.

Factually, it appears that the plaintiff, Wilkie, holds legal title to the premises in question by virtue of a deed delivered to him for a valuable consideration of $3,300, which deed is under the hands and seals of the defendants and others holding the legal title thereto, the same having been duly acknowledged and recorded in the county clerk’s office of Mercer County. The first separate defense raised in opposition to the plaintiff’s claim is in substance an allegation that the deed in question was obtained and delivered to the plaintiff through the connivánce and fraud on the part of the plaintiff and one William Goehrig, the latter acting as agent for the defendants and other members of the Goehrig family. It will thus be perceived immediately that the first separate defense is equitable in nature and not maintainable in a court of law. Under our system where law and equity are administered by separate tribunals, any relief to which the defendants may be entitled must be sought in the Court of Chancery. The foregoing rule is succinctly stated in the case of Hunt v. Gorenberg et ux., 9 N. J. Mis. R. 463; 155 Atl. Rep. 381, in an able opinion by Mr. Justice Ackerson, sitting as Supreme Court Commissioner. The case at bar is controlled by the decision of the Court of Errors and Appeals in Swift v. Rice, 98 N. J. L. 538; 120 Atl. Rep. 187. In short, the plaintiff is the holder of the record or paper title which purports to convey an absolute legal title to him. In this posture it is apparent that the defendants cannot raise the equitable defense of fraud in this court.

Some question may arise as to whether the case should not be transferred to the Court of Chancery under the provisions of the Transfer of Causes Act, B. S. 2:26-60; N. J. B. A. 2 -.26-60. As stated in Hunt v. Gorenberg, supra, this is not permissible because it is well settled that the Transfer of Causes Act is intended only for the transference of cases where the court in which they are pending has no jurisdiction on the whole case, and not where an equitable defense is attempted to be pleaded to a cause of action cognizable in a court of law.

In view of the foregoing, I am persuaded that the application of the plaintiff to reopen the judgment by default entered in favor of the defendants on their counter-claim is proper, since the allegations of the counter-claim are directly and intimately interwoven with and dependent upon the allegations set forth in the defendants’ first separate defense, namely, fraud in the procurement and delivery of the deed in question. As previously stated, the defendants have in their answer set forth a general denial of the plaintiff’s cause of action. As such it will be permitted to stand. That part of the answer designated as “first separate defense” will be stricken for the reasons above set forth. The counter-claim will be struck in ioto. An order to this effect may be presented, but the same shall not take effect until after ten days from October 15th, 1546, in order that the defendants in the interim may apply for relief in Chancery, if they so desire.


author: Martino, D. C. J.

text:
    Camden City District Court.
    SAKS THEATRICAL AGENCY, PLAINTIFF, v. SAMUEL S. MENTINE AND PATSY MARDOZZI T/A OVERBROOK VILLA, INDIVIDUALLY, JOINTLY AND SEVERALLY, DEFENDANTS.
    Decided August 26, 1946.
    For the plaintiff, Benjamin J. Dzick.

    For the defendants, Louis L. Goldman.

   Martino, D. C. J.

Plaintiff maintains a theatrical agency-in the Shubert Building, Philadelphia, Pennsylvania. Defendants maintain a road house on the White Horse Pike, at Lindenwold, Camden County, State of Hew Jersey. On or about December 18th, 1945, the plaintiff’s representative went to the defendants’ place of business in Hew Jersey, in response to a telephone communication, where the defendants signed a ■written contract for the hiring of certain entertainers for their place of business. The entertainers, for some reason which was never explained by defendants, were refused admission and prevented from exhibiting their talents. The plaintiff was forced to pay the salaries of the respective entertainers and now sues to recover the money it paid out.

Defendants presented no testimony, but rested on plaintiff’s evidence and moved for a directed verdict on the grounds that the plaintiff company was carrying on an employment agency in this state, contrary to B. 8. 34:8—1, et seq., which prohibits such agency from operating in this state without first obtaining a license therefor from the Commissioner of Labor. The defendants cite the case of Gionti v. Crown Motor Freight, 128 N. J. L. 407; 26 Atl. Rep. (2d) 282, where an architect was denied recovery because he was not licensed in this state and performed certain work contrary to B. 8. 45:3-10. This statute, being a penal one, a violation of its provision was illegal, void and unenforceable. A similar statute concerning real estate brokers, B. 8. 45:15—1, et seq., was invoked in the case of Kenney v. Paterson Milk and Cream Co., 110 N. J. L. 141; 164 Atl. Rep. 274, and the Court of Errors and Appeals held that an unlicensed real estate broker, attempting to collect his commissions on a written contract for the sale of an interest in real estate, contrary to the licensing provisions of R. 8. 45 :15—1, et seq., was without remedy. The theory of both decisions rested on the conclusion that both statutes were regulatory and not merely revenue producing, a.nd a contract made in violation of these statutes was illegal and void.

The question to be determined in this ease is this: Is R. 8. 34:8-1, et seq., covering employment agencies, invoked by these defendants, similar to the statute regulating architects and real estate brokers? I think not.

Significantly, both the statute regulating architects and real estate brokers, contains the following provision, “Any single act or transaction shall constitute engaging in business.” B. 8. 45 :3—10 and B. 8. 45 :15-2. A careful examination of B. 8. 34:8-1, et seq., covering employment agencies, fails to reveal a similar provision.

It seems dear that B. 8. 34:8-l contemplates carrying on tiie business of procuring * * * engagements for vaudeville or theatrical performances, and B. 8. 34:8—3, states, no person shall open, keep or carry on an employment agency without first obtaining a license therefor, and * * * .a person who shall open or conduct an employment agency without first producing such license * * * shall be guilty of a misdemeanor. Unquestionably, the statute is regulatory and within the police power of the state, McBride v. Clark, 101 N. J. L. 213; 127 Atl. Rep. 550. Any contract in clear violation of this statute would be illegal, void and unenforceable, but since the statute is penal in nature, it must be strietly construed. Gionti v. Crown Motor Freight, supra.

The defendants offered no testimony and this court would be justified in concluding from the evidence that the contract made with the plaintiff was the only transaction the plaintiff ever concluded in this state.

Before 1931, the statute regulating real estate brokers, B. 8. 45:15-1, et seq., was invoked in the case of Wensley v. Godly, 101 N. J. L. 325; 128 Atl. Rep. 590, decided April 15th, 1925, and our Supreme Court, through Mr. Justice Lloyd, held that this statute contemplated only the carrying on of a business as real estate broker and did not apply to an individual and isolated contract of brokerage. On April 27th, 1931, our legislature amended the statute to provide that any single act, transaction or sale, shall constitute engaging in business within the meaning of this act, B. 8. 45:15—2. Kenney v. Paterson Milk and Cream Co., supra, construed this amendment of April 27th, 1931, in a ease involving a single transaction, and held a single sale to be unlawful.

In the case at bar, since the evidence presented does not justify a conclusion that the plaintiff did conduct an employment agency in this state, or that the contract in question was part of a course of similar transactions consummated in this state, the plaintiff is. entitled to a judgment.

Judgment for the plaintiff in the sum of three hundred eighty-five dollars ($385), and since no interest was demanded, the judgment will only carry costs.


author: Eastwood, S. C. G.

text:
    NATHAN DAVIS, PLAINTIFF, v. WILLIAM THOMPSON, DEFENDANT.
    Decided October 14, 1946.
    For the plaintiff, Samuel M. Cole,

    For the defendant, Turp & Coates.

   Eastwood, S. C. G.

This is an application hy the defendant to determine the legality of an order of a Supreme Court Commissioner holding the defendant to hail. Defendant makes said application under the authority of R. S. 2 :27-77; N. J. S. A. 2 :27-77, which provides as follows:

“Any justice of the supreme court or judge of the court out of which a capias ad respondendum shall issue may, on application and notice to plaintiff, determine the legality of an order to hold to bail and discharge a defendant illegally arrested in a civil action, whether or not hail has been given.”

I am of the opinion that the statute quoted does not vest a Circuit Court Judge, sitting as a Supreme Court Commissioner, with any authority to exercise the powers conferred thereby. Such a view is expressed by Supreme Court Justice Perskie in the ease of Jordan v. Hoffman et al., 126 N. J. L. 100; 18 Atl. Rep. (2d) (at p. 609). In the case cited, the eourt held:

“We know of no statute law, nor of any rule of court, nor .of any other authority which authorizes a Circuit Court Judge, sitting as a Supreme Court Commissioner, to exercise the powers conferred by B. S. 2:27-77 and 2:27-78; N. J. S. A. 2:27-77 and 2:27-78, in a cause pending in this court.” The application of the defendant is denied and the defendant will be allowed twenty days’ time within which to file his answer to the complaint.

An appropriate order may be submitted to the court.


text:
    OCIE GILBERT, A MINOR, BY HER FATHER AND NEXT FRIEND, WILBERT C. GILBERT, AND WILBERT C. GILBERT, IN HIS OWN RIGHT, PLAINTIFFS, v. MILTON L. LAHN, ELTON COLLINS AND FRANK ROSELLO, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS. RUBY BOOTHE, PLAINTIFF, v. MILTON L. LAHN, ELTON COLLINS AND FRANK ROSELLO, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS. FRANCIS ZINNIE, PLAINTIFF, v. MILTON L. LAHN, ELTON COLLINS AND FRANK ROSELLO, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS.
    Decided October 14, 1946.

      For the plaintiffs, Horace G. Brown.

    For the defendant Milton L. Lahn, Bennett Otarle.

    For the defendant Elton Collins, Stanger <& Howell.

   Eastwood, C. C. J.

The application for a rule to show cause why a new trial should not be granted in the above causes (consolidated for trial) arises out of verdicts in favor of all of the plaintiffs against the defendant Frank Kosello, at the Cumberland County Circuit. Parenthetically, it may be stated that in so far as the plaintiffs Ocie Gilbert and Ruby Boothe are concerned, this was the second trial of the cause on all issues. At the previous trial the jury found a verdict in favor of these plaintiffs and against all of the defendants. It was the first trial for the plaintiff Francis Zinnie. In the trial under review the jury found in favor of all of the plaintiffs against the defendant Frank Rosello and returned a verdict of “no cause of action” in favor of the defendants Milton L. Lahn and Elton Collins.

I am now importuned by the several plaintiffs to grant new trials on the questions of both liability and damages, it being insisted on their part that the verdicts were grossly inadequate under the testimony of the witnesses and were against the weight of the evidence. On the other hand, it is maintained by the defendants Lahn and Collins that the verdicts were .proper and should stand.

While, on appeal the higher court is restricted to errors of law to which due exception has been taken by counsel in the proceedings below, the review on a rule to show cause why the verdict should not be set aside, either by the trial judge or by the Supreme Court, covers a very broad field. The court in such a ease views its own proceedings critically, for the purpose of discovering whether such an injustice has been done to the party aggrieved as will justify the granting of a new trial. Controverted questions of fact are scrutinized. The weight of the evidence and the propriety of the damages given by the jury are weighed by the court. The entire conduct of the trial including the-behavior of the counsel and of the jury is subject to the scrutiny of the court.

On a rule to show cause the court or judge may set a verdict aside on the ground that it is against the weight of the evidence. In this respect, it may be noted that the mere number of witnesses supporting the one side or the other is not determinative of the weight of the evidence. Preiss v. Public Service Co., 11 N. J. Mis. R. 426; 166 Atl. Rep. 628; Floersch v. Donnell, 82 N. J. L. 357; 82 Atl. Rep. 733. The jury has a right to consider the credibility of witnesses botk quantitatively and qualitatively. A difficult question always confronts a court in passing upon the weight of the evidence. The constitution has vested in the jury the right to decide upon the weight of conflicting testimony and it is not within the province of the court to usurp this exclusive function of the jury, even though in the opinion of the court the jury ought to have arrived at a different conclusion than it did, or that the court, if it had been acting as a jury, would have decided the issue differently. The rnle of law applicable to the question before us may be stated to be to the effect that “the verdict must be so clearly against the weight of the evidence as to give rise to an inference that it was the result of mistake, passion or prejudice.”

The cases at bar have been ably presented by counsel for the respective parties, commencing on May 1st, 1946, and continuing until May 10th, 1946. I venture to say that no phase of the situation prevailing at the time of the collision between the automobile of the defendant Rosello and the tractor and trailer owned by the defendant Lahn and operated by his servant and agent, the defendant Elton Collins, escaped the scrutiny and probing of counsel. There is no question but that the several plaintiffs suffered severe injuries as a result of the accident and the question of the liability of the three defendants to respond therefor was the principal issue requiring the jury’s consideration. These questions, as previously stated, were resolved, both as to damages and liability, in favor of all of the plaintiffs against the defendant Frank Kosello alone. It is proper to observe at this point that the amount of the damages awarded by the jury to the several plaintiffs was, in the opinion of the court, totally inadequate, the same being in each instance for sums less than the out of pocket expenses suffered by the plaintiffs, which amounts were not seriously controverted by the defendants. Damages awarded must be consonant with the testimony and the law as charged by the court. Rubel v. Weiss, 7 N. J. Mis. R. 447; 146 Atl. Rep. 42. If the further question of liability on the part of the several defendants was not involved, this court would grant a new trial on the question of damages alone without further comment.

It is urged by counsel for the defendants Lahn and 'Collins that the rule should bo discharged as to them since the jury found liability solely, on tbe part of tbe defendant Rosello, and the verdict was wrong, if it is wrong, only in so far as damages are concerned, relying on Supreme Court rule 131, N. J. S. A. tit. 2, which reads as follows:

“In case a new trial is granted it shall only be a new trial of the question or questions with respect to which the verdict or decision is found to be wrong, if separable.”

The power to grant new trials as to damages only should be exercised by the court with caution and with due regard to the rights of both parties, and only in those cases where the error which resulted in excessive or inadequate damages did not affect the other issues. Kimble v. Degenring, 116 N. J. L. 602; 186 Atl. Rep. 451. After thoroughly reviewing the evidence adduced at the trial, the arguments of counsel and the substantial and thorough briefs submitted, I am persuaded that the verdicts in favor of the plaintiffs against the defendant Rrank Rosello alone are against the weight of the evidence and give rise to an inference that they were the result of mistake, passion or prejudice. I am further of the opinion that the verdicts in question arise from mistake, passion or prejudice of such a nature that they affect not only the question of damages, but also the validity of other phases of the ease. In such a situation a new trial should not be limited solely to the question of damages. Rafferty v. Public Service Corp., 13 N. J. Mis. R. 80; 177 Atl. Rep. 357. I am further constrained to hold that the question of liability on the part of the several defendants is so interwoven and co-related as not to fall within the prohibition of Supreme Court rule 131, above cited, not being susceptible of separation. Such determination lies within the courts discretion. Drotar v. Pennsylvania Railroad Co., 120 N. J. L. 199; 199 Atl. Rep. 75.

It follows that a new trial of the whole issue should be had. The rule will be made absolute. Counsel may present an appropriate order.


author: Drewen, C. P. J.

text:
    Hudson County Court of Common Pleas.
    HUGH TRAVERS, PETITIONER-APPELLANT, v. J. GAYNOR, RESPONDENT-APPELLEE.
    Decided October 22, 1946.
    Por the petitioner-appellant, Fred Friedman.
    Pot the respondent-appellee, Harry E. Young.

   Drewen, C. P. J.

Petitioner is a farrier, sixty-one years' of age. He sustained an injury on January 30th, 1943, for which an award was made on August 28th, 1943, for six (6%) per cent, of total. On May 25th, 1944, that award was increased by an additional five and one-half (5%%) per cent, "due to the fact that the injuries extended into the shoulder.” He now asks for a finding of further increase, with corresponding increase in the award.

The transcript leaves us completely uninformed of the nature of the accident. All we learn from the petition for increase now before us is that "while working for respondentappellee petitioner injured his left arm, shoulder and back.” Whether the accident was one that could account for the-injury complained of, the record does not tell. In petitioner’s behalf it is said that he was kicked by a horse, but that is not petitioner’s testimony. In a question asked on his cross-examination, the accident is described as one in which "the-horse shied while you were putting the shoe on * * * and struck your arm;” and to this petitioner assented. That is all there is.

As with the details of the original accident, so also with the proofs and merits underlying the first increase, there is a complete want of facts, for the transcript on this appeal contains nothing earlier than the present petition, which was filed July 13th, 1945. The above- recitals of former happenings are taken by us from the deputy commissioner’s order dismissing the petition.

As stated, the present claim is for a second increase, and is based upon the conelusional allegation that “although petitioner was awarded 5% per cent, of total on May 25th, 1944, petitioner feels that his disability has greatly increased since that date.” The respondent’s answer is that petitioner “is not entitled to any further compensation because of any accident which arose out of or in the course of his employment with this respondent.”

It is obvious that to find an increase we must first resolve a contrast as between a present and a former state of disability. Of what prior condition is the present condition an increase ? Prom what degree of disability is a further increase to be measured? To such queries the transcript gives no answer. All we have from the petitioner himself is that “It is worse. It is getting no better.” How or wherein it is worse he does not say except for a description of his presently claimed pain and impairment, and all of which he admits is identical with whát he had to say about his condition at the time he was accorded the increase now in effect. Por example: “I can’t do anything with it. I could not shoe a horse; I could not take the shoe to the fire. I cannot- hold horse’s legs with it.” All this, petitioner concedes, is a repetition of his former complaint.

Petitioner’s medical experts are of no help. First there is Dr.' Hummel. In dealing with percentage of increase he seems to have recognized a medico-legal conundrum and given it a Delphic answer. He said he “would be inclined” to give petitioner about twelve and one-half per cent, of total. He had said also that he estimated disability of the arm at fifteen per cent. Upon being reminded of this, and asked whether the twelve and one-half per cent, of total was intended to include the fifteen per cent, of the arm, or to be added to it, the doctor made the statement: “It is hard to give an exact estimate in this ease, because of his general condition. I would say it would include whatever I gave him the last time.” This seems to us to have too much the aura of an exigent guess. What is “the general condition” of which the doctor liras disposes? Prom the proof it is fairly to be inferred that petitioner is suffering from a chronic progressive disease of such a nature as to account in whole or in part for the disability complained of. Of this disease and its effects the same Dr. Kummel says: “Petitioner now looks a great deal older than the given age of sixty-two. He seems to be generally more or less debilitated. He has considerable restriction of motion of the left shoulder as compared with the right. The right shoulder [never the subject of petitioner’s claim], is not normal either. He has atrophy of the arm which is close to one-half inch. * * * He has considerable disability generally but basing it on the difference in the two extremities, I would be inclined to give him about twelve and one-half per cent, of total for the difference, as attributable to the accident.” As already stated, the record tells us nothing about the accident. Dr. Kummel’s diagnosis is peri-arthritis. We are constrained finally to ask how the doctor separated what he found in the left shoulder from petitioner’s “considerable disability generally?” Taking his own word for it, we may conclude it was “hard” to do; yet how he did it he does not tell.

The differences in the findings of Dr. Kummel for petitioner and of Dr. Markens for respondent, that concern a pathological and non-related cause of disability, are in degree only. Dr. Markens says that petitioner has a “lot of disability from other causes, pre-existing conditions,” that these other causes are arthritic, and that they have already resulted in “deformity of the spine and so on.” This is not contradicted in the proofs before us. The medical testimony really raises no issuable dispute here. True, Dr. Kummel makes no categorical ascription of disability to “other causes” in just those words, as Dr. Markens does, but we certainly cannot ignore Dr. Kummel’s finding of “considerable disability generally,” nor his testimony that petitioner’s right shoulder “is not normal either.” No one suggests where the effects of disease end and those of injury begin, no one except Dr. Markens, who says he found no disability whatever as a result of accident. Hpon what disability resulting from accident is Dr. Kummel’s percentage of about twelve and one-half per cent, based? Prom what degree to what degree of accident-related disability is it measured? Unless these things are to be supported by some ponderable factual evidence they can no longer be thought of as a subject of judicial determination but rather as conclusions arising from occult formulae to whieh physicians alone have access as part of the expert’s privilege. The provision of the statute that “the official conducting the hearing shall not be bound by the rules of evidence” does not dispense with the requirement for legal proof.

A written statement of Dr. Blakely, petitioner’s attending physician, was stipulated into evidence. It reads: “I have examined Mr. Hugh Travers on May 27th, 1946, and find the condition of his left shoulder, arm and muscles of neck are much worse. He has a definite atrophy of his left shoulder cap; also atrophy of muscles of left upper arm, and left side of neck. He has considerable pain over entire left arm and left shoulder blade. I believe Mr. Travers has about 40% disability of his left shoulder and arm. He cannot return to his old work as a blacksmith again.” How can we tell what Dr. Blakely means by saying that the condition is “much worse” when he gives no hint of a basis for the contrast? Again, much worse than what? Also, in view of what two other physicians say about petitioner’s general pathological disability, it would have been well for Dr. Blakely to' have considered the problem of relating the claimed increase to the accident; but of this he says not a word. The stipulation to take the doctor’s testimony in the form of his written statement may have served the convenience of counsel, but it corrects no defects of proof.

If’ anything further be needed to justify the conclusion we reach it lies in the fact that the deputy commissioner on the present occasion, as well as at the hearing for the prior increase, had opportunity to observe petitioner. This is a circumstance which the deputy commissioner notes by way of justification in his order dismissing the petition below.

Petitioner’s burden of proof in the establishment of increased disability is the same as that for the establishment of an award in the first instance. That burden has not been met and the petition is dismissed.


author: Habtshorne, 0. P. J.

text:
    Essex County Court of Common Pleas.
    IN THE MATTER OF NICHOLAS CASEMENTO, PAROLEE.
    Decided October 28, 1945.
    For the State of Few Jersey, Duane E. Minará, Jr., and C. William Caruso.

    For the defendant, Dóane K. Reagan.

   Habtshorne, 0. P. J.

One Fichólas Casemento is in the custody of Pennsylvania parole officers, in the State of Few Jersey, as a parolee, permitted to leave Pennsylvania on parole, nnder the “Interstate Compact for the Supervision of Out-of-State Parolees and Probationers” (R. 8. 2:199-13; N. J. S. A. 2:199-13; Pennsylvania, Laws 1937, ch. 415; 61 P. B., §§ 321, 322; New Yorlc, Laws 1936, ch. 388; Correction Law ; Consol. Law, ch. 43, § 224), who has violated the conditions of his parole. He applies for a writ of habeas corpus, to test the right of custody of these officers, with whom the authorities of both New Jersey and New York are in fact co-operating. No question is raised as to the constitutionality of the above compact, to which not only the States of New Jersey, New York and Pennsylvania are party, but some three-fourths of the rest of the states of the Union as well, such constitutionality having already been passed on in all aspects in the case of Ex parte Joseph Tenner, 20 Cal. (2d) 670; 128 Pac. Rep. (2d) 338, the which decision was thereafter impliedly affirmed by the United States Supreme Court (314 U. S. 585; 62 S. Ct. 409; 317 U. S. 597; 63 S. Ct. 151). The objection raised by the applicant is as to the binding effect of the -waiver agreement, signed by him, as a condition of his being paroled from custody by Pennsylvania.

After Casemento was convicted and imprisoned in Pennsylvania, he applied for a parole, and to be granted the privilege of leaving Pennsylvania, to go to Jamestown, New York, to live there with his mother. At the time of granting his parole application, and permitting him to reside in New York State, “to be supervised by the New York parole authorities,” the Pennsylvania authorities required Casemento to execute a written agreement that “in consideration of being granted a parole * * * and especially being granted the privilege to leave the State of Pennsylvania and go to New York State,” he would not only live with his mother in New York State, and abide'by the parole regulations of both states, but “return at any time to the State of Pennsylvania” when instructed by New York State, and, “(4) That I hereby do waive extradition to the State of Pennsylvania, and also agree that I will not contest any effort to return me to the State of Pennsylvania. (5) Failure to comply with the above will be deemed to be a violation of the terms and conditions of parole for -which I may be returned to the State of Pennsylvania.”

Thereafter Casemento was paroled, went to New York State, but shortly violated his above agreement, by going to New Jersey, where he was arrested on a new charge. On being advised of his arrest, the Pennsylvania authorities applied to the New Jersey authorities for his return to Pennsylvania, under the compact and the prisoner’s above agreement, New York joining in such application.

The beneficent purpose, both to the prisoner and the public, o£ the Interstate Compact for the Supervision of Out-of-State Parolees and Probationers, is clear. The rehabilitation of a convicted man obviously benefits all concerned. If without danger to the public, this rehabilitation can, of course, be accomplished better without, than within, prison walls, and through employment in the neighborhood of one’s family, rather than in idleness amongst strangers, these being the very conditions stated by the compact. Furthermore, retaining the state’s supervision over the prisoner’s activities, wherever he may go, is clearly helpful, both to the public and the prisoner. This the compact alone can satisfactorily secure by making each state a supervising agent for the other. Indeed, not only the practical purpose of the compact, but the simplicity of its procedure, as to both the supervision of the parolee or probationer and his-possible return, are clear.

Turning to the above waiver agreement, signed by the applicant, we must hear in mind that the time-worn procedure for returning from one state to another, one wanted by the authorities of that other, is ordinarily by the technical procedure of extradition, under the federal constitution (article I, section 10), the provisions of the federal statute (18 U. S. C. A., § 662), and those of the Uniform Extradition Act, as enacted in New Jersey (E. 8. 2 :185—6, as amended Pamph. L. 1940, oh. 259; N. J. 8. A. 2:185-6, et seq.). We must further bear in mind that, in any such removal, there are three parties involved, the demanding or sending state (here Pennsylvania), the asylum or receiving state (here New Jersey, and, under the unusual circumstances of this case, New York as well), and the prisoner himself.

As to the states, the compact itself clearly makes the procedure on extradition inapplicable, and the compact procedure applicable, by its provision that, “All legal requirements to obtain extradition of fugitives from justice are hereby waived on the part of states party hereto, as to such persons.” The compact authorizes the “officers of a sending state [to] enter a receiving state and there apprehend” the prisoner, it being further provided that on his apprehension “no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken.” But it is questionable whether, on the face of the compact alone, the individual himself cannot insist upon formal extradition. Consequently, the Pennsylvania authorities had Casemento execute the above waiver agreement.

The specific question raised as .to the binding effect of such agreement, and as a result whether Pennsylvania should not pursue the extradition rather than the compact procedure, is the claim that defendant cannot thus bindingly waive his constitutional rights, in advance. In the first place, since the purpose of the extradition clause in the federal constitution (article IV, section 2 was to guaranty to the states the return of fugitives from justice, not to afford criminals “any immunity or protection from trial and punishment for any offenses committed in the state from which they flee” (Lascelles v. Georgia, 148 U. S. 537, 542; 13 S. Ct. 687, 689), it is questionable whether a fugitive has constitutional, as distinguished from statutory, rights to be returned on extradition, rather than by some other procedure.

But in any event, the law is clear that constitutional rights can be waived. Even the basic and fundamental right to a trial by jury can be waived, both under the federal and state constitutions. Patton v. United States, 281 U. S. 276; 50 S. Ct. 253; Adams v. United States, 317 U. S. 269; 63 S. Ct. 236; State v. Stevens, 84 N. J. L. 561; 87 Atl. Rep. 118. Similarly may an accused waive his constitutional right, under the federal and state constitutions, to the assistance of counsel. Moses v. United States, 129 Fed. Rep. (2d) 279; certiorari denied, 317 U. S. 665; 63 S. Ct. 73; Adams v. United States, supra; State v. Murphy, 87 N. J. L. 515; 94 Atl. Rep. 640. Of course, practically every waiver operates in futuro. And here in fact the consideration for Casemento’s waiver—his freedom on parole—continued up to the very time of his arrest, the cause of his present application.

Thus, were- Casemento under arrest in Hew York, rather than Hew Jersey, the right of the Pennsylvania authorities to proceed under the compact would be clear. But the further question is raised that, since he is under arrest in Hew Jersey, which is neither the sending nor receiving state mentioned by name in his waiver agreement, neither Pennsylvania nor New Jersey can return him to Pennsylvania under the compact, but, if at all, only by extradition. However, his waiver agreement does provide, as to the prisoner, not only that he “waive extradition to the State of Pennsylvania” but also that he “will not contest any effort to return me to the State of Pennsylvania.” And the compact itself not only waives extradition on the part of all states party to the compact, but further provides “that the duly accredited officers of the sending state (Pennsylvania) will be permitted to transport prisoners being retaken through any and all states parties to this compact without interference,” i. e., that New Jersey will not interfere with Casemento’s being transported on his retaking. It was thus the intent of the compact for all states party thereto to co-operate with each other in the return of parolees or probationers who had been granted privileges under the compact. As to the prisoner, true, it might have been clearer had his waiver agreement stated that he would not contest any effort “by any state” to return him to Pennsylvania. For this would have covered not only all states party to the compact, but all states which had enacted the waiver provisions of the Uniform Extradition Act, as has New Jersey. R. 8. 2:185-30; N. J. 8. A. 2:185-30. But since the prisoner himself agreed, for good consideration, not only to waive extradition to Pennsylvania, but not to contest any effort to return him thereto, he has no right to contest the present effort, made by officers of the state which granted him the privilege of leaving their eutody, on the express condition of his returning when wanted, this return being in fact with both the legal and practical co-operation of both the receiving state—New York—and the state where he had gone, without right, and had been arrested—New Jersey.

Since the above facts, upholding the lawful custody of the prisoner by the Pennsylvania authorities, under the Interstate Compact, all appear without controversy on the prisoner’s application for the writ of habeas corpus, such application will be denied, such authorities then being at liberty to return Casemento to Pennsylvania.


author: Fulop, D. 0. J.

text:
    District Court of the Second Judicial District of the County of Union.
    ARTHUR S. REID, PLAINTIFF, v. MILDRED BROWN, DEFENDANT.
    Decided October 24, 1946.
    Por the plaintiff, Morris Wurgaft.

    For the defendant, Joseph A. Lettieri.

   Fulop, D. 0. J.

Plaintiff was a tenant occupying the second floor of a two-family house owned by defendant at 821 Chestnut Street, Roselle Park. He had received assurances that he was welcome to stay indefinitely and would not be disturbed.

In February, 1946, while plaintiff was in the premises, defendant (and her husband who has since died) apparently began proceedings designed to terminate his tenancy and wrote him a letter of explanation and apology. She said that her daughter needed the apartment occupied by plaintiff and could not use the apartment on the first floor of the same building.

On April 10th, 1946, a certificate was issued by the OPA permitting defendant to dispossess the plaintiff.

On or before June 1st, 1946, defendant’s daughter entered into an oral agreement with Thomas C. Bracken who occupied the downstairs apartment in the same premises, to exchange apartments. That is, Bracken was to move into the apartment occupied by plaintiff and defendant’s daughter and her family were to move into Bracken’s apartment. This change was not approved by defendant. She advised against it but did nothing to prevent it and did not notify either the plaintiff or the OPA, although she knew for at least two weeks before the plaintiff moved that the OPA petition had become untrue.

On June 15th, 1946, plaintiff removed from the premises. He put his furniture into storage and took up temporary lodgings in a furnished apartment. Subsequently, he found an unfurnished apartment and moved a second time between June 15th, 1946, and the trial which was held on October 3d, 1946.

Upon plaintiff’s removal, Mr. Bracken moved into his apartment and has been a tenant of the defendant ever since. The defendant’s daughter moved into the apartment on the first floor theretofore occupied by Bracken.

I am unimpressed by the reasons given by Mr. Bracken and the defendant’s daughter for the change of plans.

Plaintiff claims damages.

The only defense offered is that the defendant did not intend to deceive, that she was honest in her original representations, and that she had no part in the change of plans. I believe that she is telling the truth. But, as the owner of the property, she had the power to refuse to permit the change and to refuse to accept Bracken as tenant of the upstairs apartment.

If the representation made on her behalf in order to obtain the OPA certificate was true when made, it became false before the plaintiff acted upon it. The representation of intention was continuous, both to the plaintiff and to the OPA, until the plaintiff had actually removed. It was defendant’s duty to reveal the truth at any time before it resulted in the final action, plaintiff’s removal.

By her silence when she had a duty to speak, defendant procured a termination of plaintiff’s right to remain in the premises secured to him by the federal statute. Since plaintiff was damaged, he has a cause of action for that.

The cause of action here asserted is not statutory, but based on common law principles.

Plaintiff has furnished me with digests of two cases in trial courts in other jurisdictions which appear to be in point. They are Preacher v. Carlson in the Municipal Court of Los Angeles, California, decided September 6th, 1946, and Gruszka v. Koshuba in the Wisconsin Circuit Court, Milwaukee County Branch No. 7, March 30th, 1945. No case in this state on similar facts has been cited to me.

However, no exact precedent is required, for the strength of the common law is the adaptability of the basic principles to new situations. See the erudite exposition of the fundamental law in this type of case by Mr. Justice Heher of the Court of Errors and Appeals in Kamm v. Flink (1934), 113 N. J. L. 583; 175 Atl. Rep. 62; 99 A. L. R.

Depriving a party of a statutory right by fraud is no less a remediable injury than depriving him of the benefits of a contract.

A cause of action in deceit can also be spelled out. Defendant made her representations to plaintiff as well as to the OPA.

The amount of the damages involves some difficulty. Plaintiff was paying defendant $50 per month for the apartment and garage. He is now paying $75 per month plus 50 cents a night for the garage. There is no evidence as to the comparability of the premises. I cannot allow the difference in cost.

The costs of the two movings are lumped into two items of $74.04 and $11, without explanation. It may be argued that moving is inevitable for a tenant, and that it should he disallowed by analogy to funeral expenses in a death action. However, the cases are not entirely parallel. A tenant may live in the same rented promises all his life. Or he may move periodically all his life and a forced extra move in a shorter period is extra cost. I shall allow $85.04 for moving, $36.41 for storage, $17.85 for window shades, $23 for linoleum, $54.50 for drapes and rugs, and $30 for miscellaneous expenses, and $50 for discomfort suffered by plaintiff. The total is $296.80. The remainder of plaintiff’s claim is disallowed.

Judgment for plaintiff and against defendant for $296.80 and $18.68 costs.