text:
    F. A. BENNETT ET AL., PROSECUTORS, v. AL FERTIG, RESPONDENT.
    Submitted May 3, 1932
    Decided August 27, 1932.
    Before Justices Parker, Campbell and Lloyd.
    Por the prosecutor, Michael N. Chanalis.

    Por the respondent, Samuel S. Ferster.

   Pee Curiam.

The only claim is that the weekly award is excessive and mot warranted by the statute. The employe had worked two Bays a week at $1.50 per day and the commissioner awarded $7.50 per week based on the latter part of subdivision G, paragraph 23, section 23, which is as follows, as amended by Pamph. L. 1931, p. 707 :

“(g) Whenever in section two of this act the term ‘wages’ is used it shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, and shall not include gratuities received from the employer or •others. * * * In any case the weekly wage shall be found by multiplying the daily wage by five or if the employe worked a greater proportion of the week regularly, then by five and one-half, six, six and one-half, or seven, according to the customary number of working days constituting an ■ordinary week in the character of the work involved. Pive .days shall constitute a minimum week.”

This seems to be identical -with the section as found in Pamph. L. 1919, p. 213, except that the last sentence, “five days shall constitute a minimum week” was added in 1931. The accident occurred on August 8th, 1931, and the new law was then in effect.

The commissioner’s determination is as follows:

“Bespondent and petitioner having stipulated that this accident arose out of and during the course of employment, that notice of the accident was given within the time prescribed by law and that as the result of the said accident, petitioner was fully compensated for his temporary disability for which no claim is made under the claim petition and that the petitioner is disabled to the extent of ten per cent. (10%) of total disability which would entitle him to receive fifty (50) weeks’ compensation. The sole cause at issue is the question of rate. Petitioner and respondent have stipulated and there is no question that petitioner was in the employ of the respondent two days only per week and that he earned as wages one dollar and fifty cents ($1.50) per day and that for the two days he worked for respondent he received three dollars ($3) each week. Bespondent contends that his compensation rate should be three dollars ($3) or the full amount of wages which he earned while working for the respondent two days per week. I, however, find that the interpretation of section G which has been made by this bureau, is that in order to find the • weekly wage, one must multiply the daily wage, which has been agreed upon in this case to be one dollar and fifty cents ($1.50) by five which is the minimum week and I fix his compensation rate at the rate of $7.50 per week.”

We think the commissioner correctly applied the statute, and while there seems to be an element of hardship in the case, it is one of those hardships inseparable from the enactment of a general rule applicable to all cases within its purview.

The award is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    FIRST NATIONAL BANK OF BOUND BROOK, RELATOR, v. BOROUGH OF LAVALETTE, IN THE COUNTY OF OCEAN, ET AL., DEFENDANTS.
    Submitted May 13, 1932
    Decided September 2, 1932.
    Before Justices Parker, Campbell and Lloyd.
    For the relator, Ira F. Smith.

    For the defendants, Leon E. Beussille, Jr.

   Per Curiam.

The relator bank holds several judgments for money loaned, against the borough of Lavalette, and having issued executions thereon, it is made to appear that there is no property belonging to the borough sufficient to satisfy the same whereon to levy. Copy of these executions having been served, as provided by the statute in such case made (Comp. Stat, p. 2255, pi. 34), and the proper officers of the borough having failed to take the proper steps to raise by taxation the amount needed to satisfy these judgments, being over $120,000, the bank prays a writ of m,andamus to compel this to be done; and the borough has been ruled to show cause why such writ should not issue. To this rule two, and only two, answers are made. The facts are stipulated.

The first answer is that the executions were levied against a sewer account of the borough in a Toms River bank, amounting at the time to $1,920.59 and increased by subsequent deposits to $10,945.48; and that levy could have been made, but was not made, on some six hundred and thirty-one certificates of tax sale which are liens for upward of $70,000 on lands in the borough.

As to the bank account, it is manifest that it cannot satisfy the judgments. As to the tax certificates under the rule in Lyon v. Elizabeth, 43 N. J. L. 163, they’cannot be sold under execution, and as remarked in that case, such sale “would surely result in a ruinous sacrifice of the property, and would defeat the collection of taxes without paying the city debt.”

The second answer is that a mandamus would result in a double levy, because assessments are being collected to pay the notes on which judgment is entered. But this is no answer. The notes are payable absolutely and at all events, and not limited to proceeds of assessment. No moneyed institution would lend on notes of that character. The notes and judgments are the debts of the whole borough, and it is for the latter to pay and if possible reimburse itself through the assessments.

A peremptory writ is awarded, no question of fact being involved.


author: Unger, S. C. C.

text:
    Essex County Court of Quarter Sessions.
    THE STATE OF NEW JERSEY, PLAINTIFF, v. STEPHEN BODNER, DEFENDANT.
    Decided August 29, 1932.
    For the motion, Frederick J. Gasseri.

   Unger, S. C. C.

By virtue of the provisions of paragraph 9 of “An act concerning intoxicating liquor used or to be used for beverage purposes” (Pamph. L. 1922, ch. 255), Joseph Kaminsky made a complaint before me as a Supreme Court commissioner (who by the act is constituted a committing magistrate for that purpose) against a saloon at 225 Waverly avenue, Newark, New Jersey, upon which a search warrant was issued.

Application is now made to quash the warrant upon the ground that it was not returned by the officer within the time required by law.

Section 23 of the above-mentioned act provides:

“A search warrant must be executed and returned to the magistrate who issues the same within ten days after its date; after the expiration of this time, the warrant, unless executed, is void.”

Section 25 of the act provides:

“The officer who executes a search warrant must forthwith return the same to the magistrate * *

The warrant in the present case was issued on March 19th and was not returned by the officer to whom it was directed until March 31st. This was not in conformity with the provisions of the statute set forth above, which must, in view of the extraordinary nature of the search warrant, be strictly followed.

The warrant therefore became void and the motion to quash it on this ground is granted.

The defendant also makes application for an order directing the return of the liquor seized upon the execution of the warrant and to suppress the evidence.

Section 27 of the act provides:

If, on the return of any search warrant, it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause the property to be returned to the person from whom it was taken; but if it appears that the property taken is the same as that described in the warrant, and that there is probable cause for believing the existence of the grounds on which the warrant was issued, then the magistrate shall order the same to be retained in the custody of the person seizing it, or to be otherwise disposed of according to law.”

The authority of the magistrate to order the return of the property taken is confined to those cases where it is not the same as that described in the warrant, or where it appears that there is no probable cause for believing the existence of the grounds on which the warrant was issued. The act is silent as to any power on the part of the magistrate to make such an order or to suppress the evidence under any other circumstances. The grounds upon which this warrant was issued were not controverted, and it appears there was probable cause for its issue, and that the liquor seized is the same as that described in the warrant. Under these circumstances, the magistrate is without right to direct the return of the liquor or to suppress the evidence.

In State v. First Criminal Judicial District Court of Bergen County, 10 N. J. Mis. R. 725, the Supreme Court reviewed on certiorari an order of a magistrate directing the return of the property seized under a search warrant issued under this statute and suppressing the evidence. In setting aside the order, with the exception of one provision, the court said:

“Further, we conclude that there is no authority for that portion of the order directing suppression of the evidence and the use of any evidence obtained under the search warrant. Our courts have uniformly held to the contrary. See State v. Lyons, 99 N. J. L. 301; 122 Atl. Rep. 758; State v. Gillette, 103 N. J. L. 523; 138 Atl. Rep. 523; State v. Haines, 103 N. J. L. 534; 138 Atl. Rep. 203.”

The court also concluded the order was improper in directing the return of the liquor seized.

In the cited case of State v. Gillette, supra, Chief Justice Gummere, speaking for the Supreme Court, said:

“It is further contended that there was injurious error in permitting the state to prove that the liquor thus seized was in the possession of the plaintiffs in error at the time of such seizure. We think there is nothing in these contentions. Assuming that the liquor which was taken possession of by the officers was procured from the premises of the plaintiffs in error by an unjustifiable search and seizure, nevertheless, it was competent evidence in support of the charge laid in the indictment, under our decisions in State v. MacQueen, 69 N. J. L. 522; 55 Atl. Rep. 1066; State v. Gould, 99 N. J. L. 17; 122 Atl. Rep. 596; and under the decision of the Court of Errors and Appeals in State v. Lyons, 99 N. J. L. 301. This being so, it necessarily follows that it was competent evidence to be considered by the grand jury in determining whether or not an indictment should be presented against the defendants.”

The settled doctrine of this state as expressed in the foregoing decisions requires the denial of the application for an order for the return of the liquor and the suppression of the evidence.


author: Bigelow, Y. C.

text:
    William Gritz and wife, complainants, v. Jozef Swartz et al., defendants. Guttenberg Building and Loan Association, complainant, v. Gaetano Zappulla et al., defendants, Carrie Koch, complainant, v. Luigi Acinapura et al., defendants.
    [Decided September 8th, 1932.]

      Mr. Herman Bosin, for the complainants Gritz.

      Mr. Carl Weitz, for the complainant Building and Loan Association.

      Messrs. Burlce, Sheridan & Hourigan, for the complainant Koch.
   Bigelow, Y. C.

These are three foreclosure cases. In each suit the owner occupies personally the whole or a part of the mortgaged premises; the complainant asks for a receiver and for an order directing the owner to pay rent or surrender possession; the security is entirely inadequate and the bondsman irresponsible. There are special equities arising from failure to pay taxes, need of repairs, &c.

The reluctance of the court to require an owner to pay rent is well stated by Vice-Chancellor Berry in Rehberger v. Wegener,, 107 N. J. Eq. 391; 152 Atl. Rep. 700. During the two years which have passed since that decision was rendered, the court has had a very wide experience in rent receiverships, and may use the experience to guide its discretion on these applications.

A receiver is appointed to protect the rights of complainant and other parties to the cause. He applies the income to repairing the property, to keeping down prior liens, and to accumulating a fund to make good in part an anticipated deficiency. When the owner lives or has his place of business in the mortgaged premises and is required to pay rent to a receiver, or vacate, and does the latter, it frequently happens that the receiver is unable to find a tenant. The property remains idle. The owner suffers; the mortgagee is benefited not a particle; the object of the receivership is completely frustrated.

In the case at bar in which Gritz and wife are complainants, they show that the reasonable value of the possession of the premises occupied by the owner is $60 a month; they express their confidence that it may be rented at this figure; they are also willing to bear all the expenses of the receivership. A receiver will be appointed; the defendant owner will be ordered to pay monthly rent of $60 or vacate. And it will be further ordered in the event the defendant quits the property, that complainant pay the receiver $60 a month, less any rental collected by the receiver from any other person.

In Koch’s case, the owner Acinapura occupies part of the premises worth $75 a month. The mortgagee is unwilling to assume any responsibility in the matter. The order will provide that Acinapura may remain in possession so long as ha pays the receiver $75 a month and, after default in such payment, until the receiver shall rent the property to another person at $75 a month or better, and shall give notice of such renting to Acinapura who shall thereupon, within fifteen days, surrender possession. I am uncertain of the efficacy of such an order. The receiver, who might be able to rent if the premises were vacant, may he unable to secure a tenant while the owner is actually holding on. But I am unwilling to go further in this instance.

The rental value of the property in the third case before the court is only $25 a month; it is too small to bother with. The owner’s occupancy should not be disturbed pending the sale. Motion for a receiver denied.


author: Eldhedge, C. C. J.

text:
    BOROUGH OF PALMYRA, PLAINTIFF, v. TACONY-PALMYRA FERRY COMPANY, AND IN THE ALTERNATIVE DELAWARE RIVER FERRY COMPANY, DEFENDANTS.
    Decided September 7, 1932.
    Before Henry H. Eldredge, Circuit Court Judge.
    For the plaintiff, Joseph 8. Low, with him George M. Stevens.

    For the defendant, Norman W. Uarlcer.

   Eldhedge, C. C. J.

The second count of the complaint in the above entitled cause alleges that:

“1. Defendant Delaware Biver Ferry Company is a corporation of the State of Delaware.

2. On October 1st, 1929, said defendant was the owner of two certain ferry boats known as “Palmyra,” Begister Ho. 126185, and “Tacony,” Begister Ho. 120945.

3. A personal property tax of $1,042 was assessed against said defendant by the borough of Palmyra for the year 1930, based upon personal property of the assessed value of $20,000, which said personal property was two certain ferry boats as aforesaid within the said borough on October 1st, 1929.

4. Said defendant has not paid said tax or any part thereof.

There are other clauses in this count of the complaint which need not be cited for the purposes of this rule. The last paragraph of the count demands as damages the sum of $1,042 with interest.

Service of the summons and complaint upon the Delaware Eiver Ferry Company was made by the under sheriff of Gloucester county, who made his return as follows:

“Duly served June 22, 1932, on the Delaware Eiver Ferry Company by delivering a copy of the same to Harold Cornog, ticket seller for Delaware Eiver Ferry Company, personally, at the Ferry, in the Township of Logan, Gloucester County, New Jersey.

Jacob K. Tryon, Sheriff,

Fee $5.19 By J. Nelson Furman,

Under Sheriff.”

Depositions taken upon the rule develop the following facts: Harold Cornog, upon whom service was made, was a ticket seller for the defendant company and at the time of the service had no other duties. He was, when service was made upon him, in a ticket house supported by trestle-work attached to Cadwallader Island, in the Delaware river. The ticket office was from four hundred to five hundred feet from the mainland and was located over the waters of the Delaware. These facts might become important were it necessary to pass upon the jurisdiction of the sheriff of Gloucester county to make the service, but we think it is not essential to do so.

The service attacked was made either under section 88 of the Corporation act, which provides as follows:

“In all personal suits or actions hereafter brought in any court of this state against any foreign corporation, process may be served upon any officer, director, agent, clerk or engineer of such corporation, either personally or by leaving a copy thereof at his dwelling house or usual place of abode, or by leaving a copy at the office, depot or usual place of business of such foreign corporation * * *.” Or under section 1 of chapter 198, laws of 1916, which provides:

“In all personal suits or actions hereafter brought in any court of this state against a foreign corporation, the summons may lawfully be served upon any officer or director, ór upon any ticket agent or freight agent of such corporation, personally, in the county in which the venue is laid.”

If the service was made under the provisions of the latter act, which provides that it may be made upon “any ticket agent or freight agent of such corporation,” then the service cannot stand, for the act further provides that it shall be made “in the county in which the venue is laid.” In the instant suit the venue is laid in Burlington county, while service is made in Gloucester county, if in any county at all.

"Whether the service be good then, in our judgment, depends upon the interpretation to be given section 88 of the General Corporation act, which provides that in suits against a foreign corporation “process may be served upon any officer, director, agent, clerk or engineer of such corporation.”

In passing upon service under this section as supplied to a set of facts before him, in the case of Erie Railroad Co. v. Van Allen, 76 N. J. L. 119; 69 Atl. Rep. 484, Mr. Justice Trenchard says:

“It appears from the testimony (which is true also in the present case) that no express authority had been given Higdon by the company to accept service of process. It follows, therefore, that to legalize such service the circumstances must show that he had such connection either with the corporation or with the business out of which the alleged cause of action arose that he should be considered the representative of the corporation for the purpose of service.”

With these principles in mind, we hold service in the present case to be bad. The business out of which the suit arose concerned the imposition of a personal property tax by the borough of Palmyra. Surely it cannot be said that a ticket agent, whose sole duty was to sell tickets for the purpose of passage for cars, trucks and pedestrians, would have any connection with that part of the company’s business which concerned the payment of taxes. The legality of the service upon Cornog cannot be rested upon any connection had by him with the business out of which the present cause of action arose.

It is also just as evident that the position of this ticket agent gave him no general representative character in the corporation. He was only a subordinate employe in the defendant company, having no general charge over its corporate concerns. Therefore, neither as a general representative of the defendant, nor as an agent having a sufficient connection with the business out of which the cause of action arose, can service upon him of the summons in question be considered good.

The rule will be made absolute.


text:
    TOWNSHIP OF ROXBURY, MORRIS COUNTY, NEW JERSEY, PROSECUTOR, v. MADELINE PLUMSTEAD AND THE COURT OF COMMON PLEAS OF THE COUNTY OF MORRIS, RESPONDENTS.
    Submitted May 13, 1932
    Decided September 17, 1932.
    Before Justices Parker, Campbell and Lloyd.
    For the prosecutor, Charles W. Weelcs.

    For the respondents, McCarter <& English.

   Per Curiam.

The sole question in this case is whether the Court of Common Pleas has power to award counsel fees to a successful litigant on a writ of certiorari to the Supreme Court and thereafter to the Court of Errors and Appeals for professional services rendered on the appeal.

The allowance of counsel fees is a matter of statutory authority and if no such authority existed the court is powerless to award them. The only statute relied on by the respondent, section 20 of the Workmen’s Compensation act, reads as follows: “The said Court of Common Pleas may, in its discretion, allow a reasonable attorney fee to the party prevailing in the trial of such appeal, which may be taxed in the costs and recovered against the unsuccessful party.”

We find herein no authority for that court to deal with counsel fees incurred on review of proceedings in that tribunal. The appeal referred to in the section unmistakably refers to the appeal then pending in that court. There has been and is no other appeal and the law makes provision for no other. The Court of Common Pleas in reviewing awards of the compensation bureau sits purely as a statutory tribunal and the analogy of proceedings in the Court of Chancery as illustrated in the case of Sobel v. Sobel, 99 N. J. Eq. 707; 134 Atl. Rep. 189, bears as we think no analogy. The allowance of counsel fees to the respondent on review by certiorari in the Supremo Court and then on appeal to the Court of Errors and Appeals is beyond the power of the Court of Common Pleas, and so much of the judgment as awards the sum of $500 for such services is reversed.


author: Pek Cukiam.

text:
    NATHAN BROWN, INDIVIDUALLY AND TRADING AS EXPERT SERVICE GARAGE, RESPONDENT, v. MACK INTERNATIONAL MOTOR TRUCK CORPORATION, PROSECUTOR.
    Submitted May 13, 1932
    Decided September 17, 1932.
    Before Justices Parker, Campbell and Lloyd.

      Por the prosecutor, Richard M. Glassner and Jacob 8. Glichenhaus.

    Por the respondent, Harry Levin.

   Pek Cukiam.

The Mack Truck Corporation issued a writ of replevin to recover possession of a truck from Nathan Brown, and in the writ demanded that Brown commence an action and file a state of demand showing the amount claimed by him. Brown filed a paper styled state of demand claiming a lien on the truck for supplies as set forth in a schedule annexed, totalling $519.13, and waiving claim for the excess above $500.

This being done, the court made an order reciting that the writ was issued in accordance with the Garage Keepers Lien act and directing trial of the case. Notice of a motion was then made by the Mack corporation to strike out the state of demand, counsel for the company styling himself attorney for the defendant as though a suit by the garage keeper. By agreement the case as thus styled was set down for trial. To the writ the court returns that plaintiff (Brown) took possession of the truck and Mack replevied under the Lien act, filing a bond and retaking the truck; recites the filing of the state of demand, the motion to strike it out as being too late (which was denied), and refers to the stenographic transcript for the disposition of other points.

Prom these it appears that there was a long discussion between court and counsel in which the judge said what he thought and counsel said what they thought, at the end of which, without motion of any sort or tender of proof or failure to tender proof, the judge nonsuited the plaintiff. Who the plaintiff is or was would appear by the original writ to be the Mack corporation and by the stjde of the case from there on it would appear to be Brown. The former, however, accepts the position that it was the Mack company that was nonsuited and has this writ to review.

The nonsuit was wrong. The lienor has the affirmative. But, regardless of where the burden of proof may lie, the judge nonsuited without affording either party opportunity to offer proofs; simply declaring that he could not try the title of the Mack corporation. This was error. Melier v. Fageol Co., 9 N. J. Mis. R. 37; 152 Atl. Rep. 642. The case will go back for a proper trial with opportunity afforded counsel to present their evidence on all phases of the case.

The judgment is reversed, with direction to proceed in accordance with this opinion.


author: Pee Cukiam.

text:
    FRANCIS X. ABBOTT, PROSECUTOR, v. LUCIUS F. DONOHOE ET AL., COMMISSIONERS OF THE CITY OF BAYONNE, AND THE CITY OF BAYONNE, RESPONDENTS.
    Submitted May 13, 1932
    Decided September 17, 1932.
    Before Justices Paekee, Campbell and Lloyd.
    Por the prosecutor, John Milton.

    Por the respondents, Alfred Brenner.

   Pee Cukiam.

Briefly stated the situation in this case is this: The prosecutor, Abbott, was an inspector in the electrical bureau in the department of public safety' in the city of Bayonne, and on May 16th, 1931, was transferred by the director to the office of lineman with the rank of lieutenant of police. The city is governed by" a board of commissioners and on the 12th of May an election was held in the city and a new body of commissioners chosen. The new body organized, assigned Jerome J. Brady, one of their number, to the department of public safety. Brady disregarded the transfer and recommended that a resolution be adopted rescinding the transfer and this recommendation was complied with by the adoption of the resolution which is brought before us for review.

As will be noted from the chronology the transfer of Abbott was a dying act of an administration going out of office, as the result of an election occurring four days before. The new board of commissioners, relying upon chapter 289 of the laws of 1931, on coming into office passed the resolution revoking the transfer.

The section of the act in question provides that:

“No subordinate board, department, body, office, position or employment shall be created and no appointments made to membership on any subordinate board, department, body or to any office, employment or position including the position of patrolman and fireman by any board of commissioners or any member thereof heretofore or hereafter elected in any city of the second class under the provisions of the act to which this act is a supplement between the first Tuesday in May and the third Tuesday in May in any year in which an election of a board of commissioners for that city shall be held.”

The prosecutor of the writ contends that the act is not applicable, and if applicable, that it is unconstitutional class legislation.

Neither contention we think is sound. Language could hardly be chosen to indicate more clearly and completely a legislative ban on the appointment to office, employment or position in the period indicated, and this for the obvious reason that a dying board should not be permitted to forestall the action of its successors and thereby possibly defeat the public will. We think its language adequate to cover the transfer in this case. • >

It is said the act is unconstitutional in that it affects cities of the second class and as to these only those governed by boards of commissioners. We think this is not so. The act is a development of a scheme of government initiated in 1911, and intended to concentrate municipal governmental power and responsibility in a limited number of individuals. The scheme is a marked departure from earlier methods of local government, is experimental in character and becomes effective only on adoption by the people. In the course of its operation it became apparent to the legislature that restraint in the manner indicated by the act relied on by the respondent was essential to the carrying out of the underlying plan in order that the public will in the choice of commissioners might not be defeated by the action of repudiated bodies through the filling of offices by those who might then not retain public confidence. Such legislation finds support in numerous cases decided by our courts. Commercial Trust Co. v. Board of Taxation, 87 N. J. L. 179; 92 Atl. Rep. 799; Hudspeth v. Swayze, 85 N. J. L. 592; 89 Atl. Rep. 780; Delaware River Transportation Co. v. Trenton, 86 N. J. L. 48; 90 Atl. Rep. 731.

The presumption of constitutionality is fairly established. We are not convinced that the act in question, worthy in purpose and effective in operation, is invalid, and the board was therefore in lawful exercise of its authority.

The writ is dismissed, with costs.


text:
    LUTHER A. RYER, PROSECUTOR, v. EDWARD J. HOLLAND, CITY CLERK OF THE CITY OF JERSEY CITY, RESPONDENT.
    Submitted May 13, 1932
    Decided September 17, 1932.

      Before Justices Parker, Campbell and Lloyd.
    For the prosecutor, George L. Record.

    For the respondent, Thomas J. Brogan.

   Per Curiam.

This is a writ of certiorari bringing before the court the refusal of the city clerk of Jersey City to call an election to be held as provided by chapter 13, laws of 1923, known as the Municipal Manager Form of Government act. There was presented to the city clerk of Jersey City a petition for such an election apparently signed by numerous voters. The return of the city clerk shows that he proceeded to make an investigation to determine whether the petition had been signed by the requisite number of voters as required by the act, and that as a result of this investigation he determined that it had not; that not more than ten thousand of the signatures (the requisite number being fourteen thousand ninety-three) were authentic and for this reason he had refused to call the election.

The petition for the writ was filed by one Ryer accompanied by his affidavit of the truth of the facts contained therein. TJpon that petition and affidavit the writ of certiorari was allowed. The record now before us presents nothing beyond this other than the return of the clerk, together with a certain public notice and a letter written by the clerk to one Brice and the reasons urged in support of the writ.

The contention of the prosecutor is that upon the filing of such a petition it was the duty of the clerk forthwith under the statute to call an election, and that it was not within his province to determine by an investigation or otherwise whether the petition was in conformity with the act or not.

As the matter stands before us the writ must be dismissed on the technical ground that there is nothing before us to establish, the fact that a valid and adequate petition for the calling of an eelction was ever presented to the clerk. The petition for the writ of course established nothing and the affidavit by which it was accompanied lost its force when the writ was issued and the matter came before the court for consideration. It was encumbent on the prosecutor to show that a valid petition had been filed. This not having been done, the writ must be dismissed.

In this view of the situation it is perhaps unnecessary to consider the question sought to be presented as to the authority of the clerk to determine the sufficiency of the petition.

It may be said, however, that the law requires the presentation of a petition signed by at least fifteen per centum of the voters voting at the last preceding election for members of the general assembly. The statute indicates by direct language no authority to determine whether a petition signed meets the requirements of the act. This authority must be lodged somewhere. The act requires the election to be held when the requisite petition has been filed and only then. The clerk can only be compelled to act when the petition meets the requirements of the act. Whether, therefore, the petition is sufficient would seem to be required to be determined by him in the first instance. It is not conceivable that every paper purporting to contain names imposes upon the clerk the obligation to act, but the petition must be signed by the requisite number of voters and only upon such signing is he either authorized or can he be compelled to act. The decision would, therefore, seem to rest with him, and if he fails to act upon an adequate petition after such determination the remedy is in the court to compel action. As already stated, however, there is nothing before us to show either that an adequate petition was presented or that the clerk’s refusal to act was improper and we are not to be understood as determining the question of the power of the clerk in the premises.

The writ is dismissed.


text:
    HELEN HELMINSKY, RESPONDENT, v. FORD MOTOR COMPANY, PROSECUTOR.
    Submitted May 13, 1932
    Decided September 17, 1932.
    Before Justices Parker, Campbell and Lloyd.
    For the prosecutor, Walter X. Trumbull.

    For the respondent, Aaron A. Melniher.

   Per Curiam.

This is a workmen’s compensation case in which there was an award by the compensation bureau, affirmed in the Court of Common Pleas. It is here on certiorari to Teview the action of the latter tribunal.

John Helminsky was employed by the Ford Motor Company and claimed to have received an injury in an accident which occurred on April 26th, 1929. He died November 3d following. A claim was made and medical attention accorded and payment amounting to $120 for periods between the date of the alleged accident and the time of death were made for the loss of the intervening time at his work. After his death a petition was filed in the compensation bureau by the widow and child of Helminsky with the result above stated.

Several reasons are urged for setting aside the award. The first of these is that there was no legal evidence of the fact of an accident arising out of and in the course of Helminsky’s employment; (2) that illegal evidence was received; and (3) that the award was against the weight of the evidence.

The only evidence tending to indicate that the deceased had met with an accident was as follows: His widow testified that he worked with the Ford company for nine months before the accident, losing no time, and that there was nothing wrong with his testicles (alleged to be the seat of the injury) prior to that time. When he returned from his work on the evening of April 26th the right testicle was swollen and a physician was sent for. She further testified that he lost three weeks for which he was paid and that he finally went into the hospital in September following for treatment. The physician testified that he had never treated Helminsky for any trouble other than the grip two years before and that no complaint had been made to him respecting the testicle. That he examined the testicle and found it red and swollen and that Helminsky was running a temperature. He further testified that in order to treat him he obtained a history of the case to ascertain whether the condition was traumatic or specific in origin and in response he said that Helminsky told him that he fell against a wheel in the plant. This and the fact that the respondent, his employer, paid him for the time that he was in the pospital and paid the hospital bill is the whole of the evidence tending to show the condition to have been from injury or that the injury, if there was one, arose out of and in the course of his employment. The autopsy at the time of his death disclosed that he died of tuberculosis of the testicle.

From this evidence it would perhaps be too much to say that there was absolutely no proof of an accidental origin for the condition which ultimately resulted in Iielminsky’s death. Part of the testimony, however, was clearly illegal. While it might be important in the treatment which the patient was to receive that the doctor be advised whether the origin of the condition which he found was traumatic or specific (though this is doubtful), it was of no consequence that he should know whether that origin if traumatic arose out of and in the course of the patient’s employment. The only basis of the admission of declarations to a physician is that they are made under circumstances which impel the patient to speak truthfully in order to receive adequate and proper treatment from his medical attendant. It would not do, however, from this basis of admissibility to permit the recounting in a historical way of events which had no just bearing or relation to the course of the treatment. Whatever may be said of the admissibility of so much of the testimony of the doctor as disclosed statements that the deceased had received an injury, the further statement that he had received it in the plant of the respondent was incompetent and should not have been received. Self serving declarations are generally inadmissible and should only be received under the compulsion of adjudicated authority of and limited thereby. Coming to the reason urged that the award is against the weight of the evidence, we think this is so. Even assuming the admissibility of the doctor’s testimony, which we have already indicated we regard as illegal in so far at least as it indicated an accident occurring in the course of the employment of the deceased, and considering the testimony of fellow-workmen to the effect that no accident occurred, combined with the fact that the death was due to tuberculosis, we think the award was clearly against the weight of the evidence and cannot be sustained.

The judgment is reversed.


author: Flannagan, J.

text:
    Essex County Court of Common Pleas.
    STATE v. GEORGE VON GELDERN.
    Decided June 29, 1932.
    Eor the state, Leon W. Kapp and Harold Fisher, special assistant prosecutors.
    For the defendant, Thomas Brunetto.

   Flannagan, J.

The defendant testified that shortly prior to the time of his arrest he had taken intoxicating liquor. He testified to but one drink but admitted, stating to the police captain, at or about the time of his arrest, that he had had a few drinks. He drove his automobile into a safety aisle and on his arrival at the hospital with his companion, after the “accident,” carried a bottle containing liquor in his pocket which he deposited on the floor in the hospital. The doctor at the hospital, after examination, pronounced him under the influence of intoxicating liquor. Upon all the evidence the court finds he was driving an automobile while under the influence of intoxicating liquor at the time and place charged in the complaint.

A motion was made at the opening of the trial in this court attacking the record of conviction in the Kecorder’s Court as insufficient and decision on this motion was reserved by this court until all the testimony should be in.

In State v. Whitaker, 7 N. J. Mis. R. 395; 146 Atl. Rep. 42, the court indicated the proper contents of a “conviction” or record of summary proceedings and held that the form prescribed by Pamph. L. 1923, ch. 137, does not obviate the necessity of specifying definitely the violation or crime of which the defendant is convicted. A suggestion of a proper form is not to be understood to prescribe the minimum of sufficiency. Proprieties and essentials are not identical.

This is made clear by the court’s remark in that case “if the complaint is definite and specific it will suffice if the judgment finds the defendant 'guilty as charged.’”

In the instant.case the complaint is specific charging that defendant “did on the 8th day of May, A. n. 1932, on a public highway, in the town of Montclair, in the county of Essex and State of Mew Jersey, viz., on Bloomfield avenue, said Bloomfield avenue being at the said time and place a public highway in the State of Mew Jersey, operated a motor vehicle while under the influence of intoxicating liquor.” The conviction concludes with the finding “that on the 8th day of May, 1932, said defendant, George Yon Geldern, did operate an automobile on Bloomfield avenue in the town of Montclair at about three-five A. m. while under the influence of intoxicating liquor.”

This is sufficient.

The motion will be denied.


author: Ingersoll, Y. C.

text:
    Charlotte V. K. Hedden, administratrix, et al., complainants, v. Ida F. Hedden, trustee, et al., defendants.
    [Decided September 2d, 1932.]

      Messrs. Starr, Summerill <§ Lloyd, for the complainants.

      Mr. Henry G. Pilch, for the defendant Ida E. Hedden, trustee, and as administratrix.

      Messrs. Be Gram, Murray & Keenan, for the defendant William P. Hedden, substituted administrator with the will annexed of Elma E. Hedden, deceased.
   Ingersoll, Y. C.

The first question for determination is to whom payment should be made under clause three of the will of Elma E. Hedden, deceased, which reads as follows:

“Third. I give, devise and bequeath the remaining one-third of said residue and remainder- unto my daughter-in-law, Ida F. Hedden in trust to pay, transfer or divide the trust fund unto, between or among such child or children of the said Ida F. Hedden as shall survive me and attain the age of twenty-five years, and the child or children of the said Ida F. Hedden who shall be dead at my death, or shall die under the age of twenty-five years, and, if more than one, in equal shares as between brothers and sisters; but so that the child or children collectively of any child of the said Ida F. Pledden dead at my death, or dying under the age of twenty-five years, shall take only such share as his, her or their parent would have taken if living.”

James L. Hedden, one of Ida F. Hedden’s three children, survived the testatrix. He was more than twenty-five years of age when the testatrix died on April 27th, 1924, and died intestate on July 12th, 1925.

Vice-Chancellor Backes has already said, in the Hew Jersey prerogative court, on appeal from the Essex county orphans court:

“The share vested in James L. Hedden at the death of the testatrix and the equitable right of enjoyment was in him. The directions of the will to pay it to the trustee was for the convenience of the estate, to hold the share to await the contingency of the legatee arriving at the age of twenty-five years, and as that event happened before the trust came into existence it became simply a dry trust, and the trustee a mere conduit, who upon a literal compliance with the directions of the will would he in duty bound, upon demand, to forthwith pay over the share.”

It follows, therefore, that the payment of James L. Hedden’s share should be made to Charlotte V. K. Hedden, administratrix in Hew Jersey of the said estate of James L. Hedden, deceased.

The second question is whether the trustee or administratrix appointed in Ohio can attack collaterally the order of the prerogative court made on the 19th day of April, 1929, naming Charlotte V. K. Hedden as administratrix of James L. Hedden, deceased.

From that order no appeal nor any other action seeking its reversal or modification was ever taken by any of the parties in interest. Consequently, its verity, validity or binding effect is not open to impeachment or contradiction by any of the parties thereto or their privies in this collateral proceeding. In re Leupp, 108 N. J. Eq. 49; 153 Atl. Rep. 842, quoting the following cases: West New York Improvement Co. v. West New York, 88 N. J. Eq. 571; 104 Atl. Rep. 611; Crawford v. Lees, 84 N. J. Eq. 324; 93 Atl. Rep. 201; Podesta v. Binns, 69 N. J. Eq. 387; 60 Atl. Rep. 815; Diehl v. Page, 3 N. J. Eq. 143; Plume v. Howard Savings Institution, 46 N. J. Law 211 (since such can only be done by a direct assault upon or by an appeal from said order); West New York Improvement Co. v. West New York, supra; National Docks, &c., Railway Co. v. Pennsylvania Railroad Co., 52 N. J. Eq. 58; 28 Atl. Rep. 71; McCahill v. Equitable Life Assurance Society, 26 N. J. Eq. 531.

A decree will be advised in accordance with these views.


author: Soot, C. C. J.

text:
    LOUIS LATT AND ROSE LATT, TO THE USE OF EMANUAL MALMUT, PLAINTIFFS, v. ERNEST SCHWEHM, DEFENDANT.
    Decided September 21, 1932.
    For the plaintiffs, Bourgeois & Coulomb.

    For the defendant, Albert C. Abbott.

   Soot, C. C. J.

This ease comes to me for trial without a jury.

From the evidence and exhibits marked in evidence, it appears that on November 6th, 1926, plaintiffs agreed, in writing, under seal, to convey to defendant certain real estate in Atlantic City for a consideration of $60,000 to be paid as follows:

$2,000 upon signing of agreement.

$30,000 by the assumption of an existing first mortgage.

$15,000 by the assumption of an existing second mortgage.

$3,300 in mortgages to be assigned.

$9,700 cash at settlement.

Settlement was in fact made as of February 7th, 1927.

Subsequent to the settlement foreclosure proceedings, under the first mortgage, were prosecuted to sale and, at the sale, nothing was realized on account of the second mortgage of $15,000 (then reduced to $13,000), the payment of which second mortgage Schwehm had assumed under the contract of sale. Schwehm has not paid the balance or deficiency due on this mortgage and the plaintiffs are liable to Malmut for the amount thereof.

Suit is brought against the defendant on the theory that the agreement of sale, wherein Schwehm agreed to “assume the payment” of the $15,000 second mortgage was a collateral undertaking in no way affected by the delivery of the deed of conveyance.

Now, as to the deed which passed from plaintiffs to defendant: This deed does not contain a covenant on the part of defendant under which he assumed the payment of the mortgage in controversy, but, on the other hand, in the habendum, appears the following “subject, however, to the existence and operation of two certain mortgages in the amounts of $30,000 and $15,000, respectively.”

It thus appears that the deed did not expressly follow the agreement of sale and contain therein the covenant of Mr. Schwehm to assume payment of the $3 5,000 mortgage.

It is contended by plaintiffs that “the covenant to pay the mortgage in the agreement of sale is a collateral covenant, having nothing whatever to do with the title, but relating solely to the payment of the purchase price, and as such was in no manner affected by the delivery of the deed; and that no covenants of an agreement of sale are merged, voided, or abrogated by the deed covering the property except those covenants which are connected with the ‘title,’ ‘possession,’ ‘quantity,’ or ‘emblements’ of the land; all other covenants are collateral.” Defendant cites as authorities the following cases: Bolles v. Beach, 22 N. J. L. 680; Warner v. Thirkettle, 99 N. J. Eq. 806; 134 Atl. Rep. 299; Merchants, &c., Co. v. Mercer Realty Co., 99 N. J. L. 442; 123 Atl. Rep. 875; Ireland v. Penn Motors Corp., 100 N. J. Eq. 166; 134 Atl. Rep. 835; Long v. Hartwell, 34 N. J. L. 116; Janitscheck v. Melbro Realty Co., 107 N. J. L. 450; 154 Atl. Rep. 749.

With this contention I agree but the true rule of law to be applied to the facts in this case is that stated in Smith v. Colonial Woodworking Co., 110 N. J. Eq. 418 (at p. 422); 160 Atl. Rep. 351 (at p. 353).

“The recognized rule is that the acceptance of a deed for land is to be deemed prima facie full execution of an executory agreement to convey, and thenceforth the agreement becomes void, and the rights of the parties are to be determined by the deed, and not the agreement. The only exceptions to this rule appear to be in cases of covenants which are collateral to the deed and also cases in which the deed would be considered only in part execution of the executory contract.” In Long v. Hartwell, 34 N. J. L. 116 (at p. 122), it is stated as follows: “Where in a deed there is an absence of covenants against encumbrances, the vendee cannot resort to the contract. Until consummated, an executory contract is subject to modification. In all cases the deed, when accepted, is presumed to express the ultimate intent of the parties with regard to so much of the contract as it purports to execute—the rule to be deduced from all the authorities is, that the executed contract supersedes all prior negotiations and agreements, where the last contract covers the whole subject embraced in the prior one.”

Applying the rule of law thus laid down to the instant case:

The agreement to assume pajonent of the $15,000 mortgage was a collateral covenant but the agreement of sale was an executory agreement and subject to change until consummated. Defendant says that such a change or modification was made, by oral, agreement, between the parties, before the delivery of the deed, and that the deed expresses the ultimate intent of the parties with regard to the whole and every part of the executory contract of sale.

Defendant, by proper pleadings, alleges that when he signed the contract of sale he did “assume” payment of the $15,000 mortgage and that he did not then know the legal import of the phraseology of that contract and that, between the signing of the contract of sale and the delivery of the deed, he ascertained that by assuming pajnnent of the mortgage he was bound in law to make payment on default and deficiency arising thereunder and that, with this knowledge, he refused to make settlement under the terms of the original contract and insisted that the deed be so worded as to release him from the liability of “assumption,” and that plaintiff assented to the change and delivered the deed “subject to the mortgage.”

An inspection of the contract of sale and the deed shows that in the former defendant “assumed” payment and in the deed the property was conveyed “subject to” the mortgage.

Under the authorities above quoted, the presumption is that the deed “expressed the ultimate intent of the parties” and if defendant’s version of the modification of the contract of sale is supported by the evidence, the deed executed the contract of sale in its entirety.

The question, then, for me to decide is: Has the defendant sustained the burden of proof and established the defense above outlined, to wit, that, after the execution of the agreement of sale, the parties, by mutual agreement, deviated from that contract to ,the extent that plaintiffs released the defendant from his covenant of assumption of the mortgage and agreed to convey and did convey “subject” thereto.

The testimony for the defendant is confined to two witnesses, defendant and Mr. Myers. Defendant says:

“Q. At the time of the settlement just state to the court what took place in the settlement room? A. They handed the deed to Mr. Myers, and Mr. Myers read it and said, ‘Mr. Sehwehm won’t accept that deed on account of the word “assuming” being in it’ and they says, well, the word ‘assuming’ didn’t mean anything. So they argued pro and con there and said it doesn’t mean anything. Well, I says, the only thing is I won’t make settlement unless it is, ‘subject to’ ‘that’s the way I bought it, and yet I admit I signed the agreement with the •word “assuming” and didn’t know what it meant.’” And then he says that as a result of that conversation plaintiffs executed the deed.

Mr. Myers, for defendant, testified :

“Q. Do you remember a controversy arising- at the settlement as to the quality of the deed that was to be given in the settlement? A. I do.” And then he says:

“The deed was in Mr. Kobert’s possession and I picked it up and examined it and after I got through reading the deed I said: ‘This is not the kind of a deed Mr. Sehwehm will settle under.’ They wanted to know what the objections were and I told them—pardon me—I passed the deed then to Mr. Sehwehm and the objection was that the deed contained the word ‘assumed/ which Mr. Sehwehm seriously objected to and stated that he wouldn’t settle on a deed where the deed carried the word ‘assume.’ The conversation continued and it was finally agreed upon that a new deed be written delivering the property ‘subject to.’ ” Then he says the deed was executed by plaintiffs.

For the plaintiffs, their attorney who was present at the settlement says there was no such conversation “about the form of the deed.” He admits that his recollection of just what transpired is rather hazy.

Mr. Roberts, the settlement clerk of the title company, says that he does not remember any such conversation but, properly, refuses to go further and say that such a conversation did not in fact happen. The settlement was held over five years before the trial.

There was evidence as to who drew the deed and whether there was more than one drawn—the evidence being conflicting—but my conclusion therefrom is that the deed which was finally executed was drawn by plaintiffs and not by the title company for them. The question as to whether there was more than one deed drawn seems to me to be immaterial.

The deed was prepared by plaintiffs. Wiry, if defendant had not objected to an “assumption” clause in the deed did plaintiffs convey “subject to?” It is argued that it made no difference to plaintiffs because of the contract to convey, but that is not an answer because the parties to that executory contract has a right to modify it before it was completely executed by the deed, and the fact that the language of the deed supports defendant’s contention that there was such a modification is persuasive evidence in his favor.

It will be observed that the testimony of Mr. Sehwehm and Mr. Myers is positive as to the conversation with reference to the modification of the contract of sale, while Mr. Roberts simply says that he does not remember and the attorney frankly admits a hazy recollection of what was said and done at the settlement.

Again, it is significant that neither of the plaintiffs, Mr. or Mrs. Latt, took the stand to deny the testimony offered by defendant and the evidence discloses that both plaintiffs were present at the settlement.

It is argued that the settlement sheet offered in evidence tends to disprove defendant’s contention. It might, possibly, have some weight in that direction if it appeared when, with reference to the delivery of the deed, that sheet was made up but it does not appear whether it was made before or after the alleged agreement to modify was discussed.

Judgment for defendant.


author: Oltphant, C. C. J.

text:
    ALEXANDER L. A. MACKIE, PLAINTIFF, v. CITY OF BAYONNE, DEFENDANT.
    Decided September 24, 1932.
    For the plaintiff, Whiting & Moore.

    For the defendant, Alfred Brenner and James Benny.

   Oltphant, C. C. J.

This matter was submitted to the court upon an agreed state of facts and upon stipulations entered into between the parties. Yoluminous briefs have been filed and carefully considered.

It is a suit in ejectment. The property in dispute is a lot of land in the city of Bayonne. On December 14th, 1892, it was sold for taxes under the Martin act to the mayor and council of the city of Bayonne. A certificate of sale was issued under date of August 10th, 1893. Notices to redeem under the Martin act were served on the owners on September 39th, 1893. A deed was executed and delivered, dated February 30th, 1895, proved March 4th, 1895, but not recorded until December 33d, 1896. Shortly after the property had been sold for taxes, and before the certificate of sale was issued, and before notices to redeem were served and the deed delivered, Mr. Mackie, the plaintiff in this case, tendered to the collector for the city of Bayonne, the entire amount of taxes due upon this lot with interest and penalty, amounting to $155.79. This tender was made by check and under protest. It was refused by the collector, the reason given being that it was made under protest.

At the time the premises in question were sold for taxes as aforesaid and at the time notices to redeem were served, and at the time the Martin act deed from the collector was executed and delivered, the premises were part of what was known as the Mackie Farm. At that time the entire tract was fenced and the property used for grazing a horse and a cow. Some years thereafter, the fence became in disrepair and the property remained vacant land until on or about June 1st, 1938, when a wire fence was erected by this plaintiff.

Neither the mayor nor the city council of the city of Bayonne, nor any of those claiming title under it by virtue of the deeds in its chain of title ever entered into physical possession of the premises in question until June 14th, 1938. After the fence became in disrepair Mr. Mackie from time to time went upon the property but never made any use of it. There never was any interruption in the continuance of whatever possession he had from the date of the tax sale down to June 14th, 1938, except the right to possession which the city and its successors in title had by virtue of the tax sale and the deeds thereafter given.

On June 14th, 1938, the city of Bayonne entered into actual physical possession of the lot in question, claiming a right to enter under a deed from one Parker, which deed in turn is part of a chain of title and depending for its validity, in the first instance, upon said tax sale and Martin act deed thereunder.

The plaintiff contends:

1. That the Martin act deed to the city is void because it is not sealed as required by the statute.

2. That because of the failure of the city, and those claiming under it, to enter into possession of the premises in question within twenty years from the time its right of entry accrued, the defendant’s right of entry was barred by the sixteenth section of the statute of limitations.

3. That the collector was not justified in rejecting Mr. Maekie’s tender of taxes, and that the legal effect of such tender was the same effect as the payment of taxes, and the certificate of sale and deed thereunder were void.

The defendant among other things says that this action in ejectment is a collateral attack upon the validity of the title to the premises in question and cannot, therefore, be successfully prosecuted; the proper remedy being by certiorari as provided by section 15 of the Sale of Land act. 4 Comp. Stat., p. 4679.

I am of the opinion that this suit is not a collateral attack upon the validity of the title but is a direct attack and is not directed to illegalities and informalities in the proceedings on which the sale was founded.

The fact that the Martin act deed to the city was not sealed as required by the statute is of no avail to the plaintiff. The legislature in 1904 (Pamph. L. 1904, p. 203; Comp. Stat., p. 1540, § 20 A) provided that no instrument shall be void for lack of a seal, provided the attestation clause and the acknowledgment of proof shall recite that the same was signed and sealed by the makers thereof. In the present instance the attestation clause and the acknowledgment of proof recited that the same was signed and sealed by the makers thereof.

Under the second contention of the plaintiff, he claims the right to succeed in these proceedings by virtue of the sixteenth section of the act for the limitation of actions (3 Comp. Stat., p. 3169), by reason of the fact that the defendant and its predecessors in title had failed to enter into possession within twenty years after its right of entry accrued. This plaintiff cannot succeed because of defects in the defendant’s title but must prevail on the strength of his own title. This defendant and its predecessors in title have been in open, notorious and hostile possession of the property in question for over thirty years by conveyance. The land in question was neither woodland nor an uncultivated tract and this-present action is barred by the statute of 1922. Pamph. L. 1922, p. 315.

Mr. Justice Depue, in Spottiswoode v. Morris and Essex Railroad Co., 61 N. J. L. 322; 40 Atl. Rep. 505, in construing the earlier legislative enactment which is in substantially the same form and is section 1 of the act of June 5th, 1787 (Gen. Stat., p. 1972), said: “Possession obtained and held as prescribed by the first section of this act will confer a title paramount to the claims or rights of all other persons.” The same reasoning applies to the 1922 statute. Mr. Justice Bodine, in Conaway v. Daly, 106 N. J. L. 207; 148 Atl. Rep. 719, said: “The words of the statute must have the same meaning usually accorded such words.” ' The words “thirty years actual possession of any lands * * * uninterruptedly continued by * * * conveyance * * * , in whatever way or manner such possession might have commenced, or have been continued, shall vest a full and complete right and title in every actual possessor or occupier of such lands * * * and shall be a good and sufficient bar to all claims that may be made, or actions commenced by any person or persons whatsoever, for the recovery of any such lands * * mean in the present case that the defendant, being in possession by conveyance for thirty years, the. property being neither woodland nor an uncultivated tract, is entitled to prevail. This is particularly so inasmuch as there is no proof by the plaintiff that it was ever occupied by him during those thirty years.

With respect to the contention of the plaintiff that the tender of taxes by check has the legal effect of payment of the taxes, and that therefore the certificate of sale and deed thereunder were void, I am of the opinion that there was no legal payment. The check in question was not accepted, evidently by reason of the fact that it was not an unconditional payment. If it had been accepted, then it would have been considered in lieu of cash, but in view of the fact that it was not accepted, it cannot be considered as payment. Vice-Chancellor Berry, in Abeles v. Guelick et al., 101 N. J. Eq. 180; 137 Atl. Rep. 853, said: “In modern business transactions checks pass as cash, and while not legal tender or actual cash, commerce and trade would be very much restricted, if checks were not accepted in lieu of cash. Where so accepted they should be so considered by the courts.

Por all the reasons heretofore stated, a verdict will be rendered for the defendant and a postea to this effect will be signed.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    HOMER W. DEAKMAN AND T. RICHMOND WELLS, PARTNERS TRADING AS DEAKMAN-WELLS COMPANY, PLAINTIFFS, v. THE ODD FELLOWS HALL ASSOCIATION OF NEW JERSEY, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Decided September 13, 1932.
    For the plaintiffs, Autenrieth, Gannon & Wortendyke.

    For the defendant, Melosh, Morton'S Melosh.

    For the intervening petitioner, The National Commercial Title and Mortgage Guaranty Company, Lindabury, Steel-man, Zink S Laferiy.

   Brown, C. C. J.

The intervening petitioner, the National Commercial Title and Mortgage Guaranty Company, obtained a rule directed to the plaintiffs to show cause why the levies made under a judgment obtained by the plaintiffs against the defendant should not be set aside and a receivership arising out of the litigation between the plaintiffs and defendant discharged. To properly determine the questions presented it is necessary to make a brief reference to the stipulation of facts to which the parties have agreed. According to this stipulation it appears that on the 29th day of June, 1927, the defendant Odd Fellows Hall Association, mortgaged to the intervening petitioner, the National Commercial Title and Mortgage Guaranty Company, the lands and premises which are situate in Jersey City, to secure the sum of $375,000 payable according to the terms of the mortgage on the 29th day of June, 1931, which mortgage was accompanied by a bond. The bond contained this provision:

“(1) In case of any default in the performance of any of the covenants of this bond persisted in thirty days after notice in writing from said obligee to said obligor, said obligee may enter upon and take possession of said mortgaged premises, collect the rentals, let the said premises or any part thereof, in its own name or otherwise and receive the rents, issues and profits from said mortgaged premises and apply the same, after the payment of all necessary charges and expenses, on account of the amount hereby secured and interest thereon, and said rents and profits in the event of such default as aforesaid, are hereby assigned to said obligee.”

The mortgage given to secure the bond contained the following provision:

“And it is expressly understood and agreed by and between the mortgagor and mortgagee herein that the said covenants and conditions in said bond contained are hereby made a part of this mortgage as if specifically stated herein.” * * * “That in the event of any default in any covenants in said bond contained, said mortgagee may enter, take possession of the mortgaged premises and collect the rentals therefrom, which said rentals are in the event of any such default hereby assigned to the mortgagee.” * * * “That all covenants herein and in said bond shall bind the heirs, executors, administrators, successors and assigns, of the parties hereto.”

On January 3d, 1932, the plaintiff obtained a judgment against the defendant in this court in the sum of $4,378.53. The judgment was not paid and on the 17th day of February, 1932, a writ of execution was issued which directed the sheriff to satisfy from the goods and chattels of the defendant association, the judgment obtained by the plaintiff, and if sufficient goods and chattels of the defendant could not be found that the residue, as the case may be, of the moneys that might be due on the judgment “should be made of the lands, tenements, hereditaments and real estate of the defendant, whereof the defendant was seized on the 8th day of January, 1932.” On the 24th day of February, 1932, the sheriff of Hudson county made a levy under the execution and according to a written inventory and description purports to be made upon the “rights and credits of the defendant.” The levy is made “subject to all prior legal encumbrances” and recites that it was effected upon the title and interest of the defendant association “in following rents to become due for office space in the Odd Fellows Building.” The levy recites a number of tenants who have been served and that the rents became due on the first day of March, 1932. On April 4th, 1932, the sheriff made a second levy and according to the description the levy was effected on moneys in the hands of a receiver in Chancery. The agreed stipulation of facts recites that all the rents levied upon or purported to have been levied upon 'became due from the tenants on the first day of March, 1932. On the 25th day of March, 1932, on application of the plaintiff, the court appointed a receiver of the rights, credits, moneys and effects of the Odd Fellows Association, which order was entered without notice to the National Commercial Title and Mortgage Guaranty Company. On the 30th day of March, 1932, the receiver so appointed collected $661.50 from three of the tenants in the defendant association’s property for rent which accrued on the first day of March, 1932. On the 27th day of February, 1932, an agreement was entered into between the National Commercial Title and Mortgage Guaranty Company and the Odd Fellows Hall Association which agreement recited the defaults in the payment of interest of the defendant’s mortgage as well as amortization payments the first of which became due in March, 1930. The agreement was to the further effect that the mortgagor recognized the defaults in the payment of principal and interest as well as taxes, but desired more fully to secure the mortgagee and therefore entered into the agreement whereby the mortgagor transferred and delivered to the mortgagee possession of the premises covered by the mortgage, and assigned, transferred and set over to the mortgagee all the rents or income due or to become due from the tenants •and occupants of the premises, and authorized the mortgagee, or in its own name, to collect the rents and income from the property. The agreement further permitted the mortgagee to rent the premises if it desired and provided that the agreement was not in anywise to bar or postpone the right of the mortgagee to take any proceedings which shall in its opinion be desirable or necessary for the collection of moneys due or to become due in accordance with the terms of its bond and mortgage. On the first day of March, 1932, the title company served the tenants of the premises with notice that the mortgagor had failed to pay the interest, taxes and amortization payments provided in the mortgage; that the mortgagee had taken possession and made demand on all of the tenants to pay to it, the mortgagee, the rents due on that date. On the 23d day of March, 1932, on application of the National Commercial Title and Mortgage Guaranty Company as complainant in a foreclosure suit of the mortgage in question, which bill was filed on the 2d day of March, 1932, a receiver was appointed by the Court of Chancery to manage the mortgaged property as well as collect and receive the rents, issues and profits thereof that may become due after the date of the appointment of the receiver. Upon the appointment of the Chancery receiver the rents collected from the tenants by the receiver out of this court was left in custodia legis. On December 30th, 1931; January 13th, 1932, and January 20th, 1932, the title company notified the Odd Fellows Association of the latter’s default in the amortization payments provided in the mortgage to be paid by the Odd Fellows Hall Association in the sum of $2,812.50, due on March 29th, 1930, and subsequent payments in like amount quarterly thereafter and of interest due on December 29th, 1931, in the sum of $5,498.43. The National Commercial Title and Mortgage Guaranty Company contends that the rents are the property of and the legal title is vested in the title company prior to the issuance of the writ of execution. The intervening petitioner further contends that the purported levy of February 24th, 1932, under the plaintiffs’ writ of execution did not effect rents to accrue in the future and that such rents could only be levied upon by the sale of the realty. Considering first the levy made as of April 4th, 1932, this levy will be vacated and set aside for the reason that the rents attempted to be levied on was at the time the levy was made in the possession of the receiver appointed in the Court of Chancery in the foreclosure suit under date of March 23d, 1932, and in any event were not vested in the defendant as its property. As to the remaining issues a determination of the legal right of the title company to the rents accruing from the Odd Fellows property on March 1st, 1932, will dispose of all other questions that have been raised by the intervening petitioner as well as all other parties. If the title company has a right to those rents prior to that of the execution creditor it is not necessary to determine the regularity of the proceeding under which the levy was made. When the levy was made on the 24th day of February, 1932, there was no accrued rent due. The rent did not become due until March 1st, 1932. On that date the title company took possession of the premises and was under the terms of its mortgage entitled to the rent. Paramount Building and Loan Assn. v. Sacks et al., 107 N. J. Eq. 328; Stanton v. Metropolitan L. Co., 107 Id. 345. Another reason that militates against the effectiveness of the levy of February 24th, 1932, is the fact that it purports to levy on rent not yet accrued. The right to an unaccrued rent is a species of incorporeal hereditament and is to be classed as real as distinguished from personal property. Until separated from the reversion it constitutes a part of the land and passes as an incident to a transfer of the reversion. 36 C. J. 288, ¶ 1048; Den v. Craig, 15 N. J. L. 191; Brown v. Brown, 33 N. J. Eq. 650. To effectively take possession of those rents under the writ of execution, even by virtue of the provision of Pamph. L. 1915, p. 182, would require a sale of rights in real estate which should be made in the manner provided by law for sales of land. The act of 1915, chapter 115, page 182, is in derogation of the common law and should be strictly complied with. This rule was enunciated in the ease of Trapp v. Brown, 91 N. J. L. 481; 104 Atl. Rep. 302; affirmed, 93 N. J. L. 171; 107 Atl. Rep. 413, where a statute similar in some respects was construed.

When a receiver was appointed out of this court the interest of the National Commercial Title and Mortgage Guaranty Company to the rents was not disclosed. It now appears that the rents in the hands of the receiver appointed out of this court belong to the title company. An order may be entered directing said receiver to pay to the title and mortgage company the rents collected by him and that the levy made on February 24th, 1932, under the writ of execution out of this court be vacated in so far as it affects those rents.

The rules to show cause heretofore granted to the plaintiffs and defendant and all restraints therein will be discharged as the questions presented are fully determined by a consideration of the rule to show cause granted to the National Commercial Title and Mortgage Guaranty Company.


author: Elannagan, J.

text:
    Essex County Court of Common Pleas.
    STATE v. JOHN T. COOPER.
    Decided June 29, 1932.
    Eor the state, Leon W. Kapp and Harold Fisher, special assistant prosecutors.
    Eor the defendant, Thomas Brunetto.

   Elannagan, J.

The complaint is definite and specific charging that defendant did “operate a motor vehicle while under the influence of intoxicating liquor” on Grove and Walnut streets, Montclair. The complaint is endorsed “guilty.” The “summary of testimony,” signed and returned by the recorder, in its concluding paragraph says: “I thereupon found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor.”

While this falls short of what a conviction and return should contain as indicated in State v. Whitaker, 7 N. J. Mis. R. 395; 146 Atl. Rep. 42, it is definite and clear and does not leave open to question that defendant was convicted of the charge laid in the complaint. It therefore is at least equal to the minimum requirements as indicated in that case where it is said “if a complaint is definite and specific, it will suffice if the judgment finds the defendant 'guilty as charged/ ”

The motion to discharge defendant is therefore denied.

I have no difficulty in reaching the conclusion on the evidence that the defendant is guilty as charged.


author: Backes, Y. C.

text:
    Berkeley Sulphur Springs, a corporation, complainant, v. Sebastien Liberty et al., defendants.
    [Decided September 15th, 1932.]

      Messrs. Avidan & Avidan, for the complainant.

      Mr. Harvey Rothberg, for the defendants.
   Backes, Y. C.

The complainant owned an eighteen-acre tract of land, subdivided into building lots. The defendant Liberty owned a quarter interest in the company and was the local agent for the sale of lots. He contracted to sell six contiguous lots to one Krantz for $2,500; $250 down payment, $750 upon delivery of deed, and $1,500 in one year, secured by mortgage. The contract was made April 25th, 1931, to be performed by June 1st, then next. It is in the nature of a receipt, signed by Liberty, for the $250 down payment, states the particulars of sale, and concludes that “all this is subject to approval of owner;” the latter, because Liberty held himself out to Krantz as the agent of the complainant. Liberty then represented to the complainant’s president that he had a customer at $2,500 for ten contiguous lots—the six Krantz lots and four involved in this suit. He suppressed the Krantz contract. The price was satisfactory to the complainant’s president but the terms were not, and he wrote Liberty that the complainant would sell to Liberty’s customer the ten lots (he called it an acre) upon a $1,000 cash payment, $300 in three months and $1,200 in six months. Liberty was to get five per cent, commission. That was April 30th—five days after the Krantz contract. Liberty then started finessing. This resulted in the complainant, on May 16th, giving to Liberty’s attorney, Rothberg, an option to buy the ten lots for $2,325 cash on or before July 1st. The price was net; Liberty was to get no commission. Roth-berg, his attorney, was supposed to be financing the cash transactions for him and Liberty’s compensation was to be found in the difference between the cash price and the customer’s offer. The lots were to be conveyed to Rothberg’s appointees. Liberty then arranged with Krantz to take $2,375 cash, or maybe it was before the option; as to that the evidence is not clear. This left due Liberty from Krantz $2,125 ($250 had been paid down) and $2,125 was due on the option agreement ($200 having been paid on the option). On the closing day, May 21st, five days after the option, the company conveyed six lots to Mrs. Krantz and four to the Plain-field Land and Building Company. Krantz’ money was used to pay the complainant. The Krantz contract was all the while concealed. The Plainfield Land and Building Company conveyed the four lots to the Ideal Home and Land Company. The first was Rothberg’s company, the other belongs to Liberty. Both were “dummies” for Liberty. The evidence leaves no doubt as to the agency and the making of a secret profit through fraudulent concealment. It is written throughout the testimony. Liberty’s stationery bears witness to the agency, and he, in fact, protested it in a letter written to the president of the complainant shortly after the transaction, June 4th, 1931, when Krantz was negotiating for more lots. “I want to reiterate here that you had better give me a workable price for the sale of the property in the rear for which I already made you the offer for Mr. Krantz for $500 per acre. He wants to buy six acres. Should there be any sales or dealings made with him on that property, I shall expect my commission for he is my customer.”

The law is well settled that a broker owes absolute loyalty to his principal. Employed to sell property, he is in duty bound to disclose the best price obtainable; he cannot make a secret profit; if he secretly becomes the buyer, the conveyance is voidable at the option of the principal, and if he deals' with the principal as purchaser, the burden is upon him to establish the fairness of the transaction and impeccable conduct on his part. Gordon v. Kaplan, 99 N. J. Eq. 390; 132 Atl. Rep. 110; Porter v. Woodruff; 36 N. J. Eq. 174; 9 Corp. Jur. 536.

Eothberg received $300 for his part in the transaction; $50 in cash and a note for $250. That the $300 was consideration for the conveyance of the four lots from his company to Liberty’s company, as he and Liberty testified, is pretense. Liberty says he paid Eothberg the $50 in cash, but Eothberg testifies that he got the $50 from Krantz, in the difference between Krantz’ price of $2,375 and the complainant’s net price of $2,125, which is palpably untrue, for as we have seen, there was no difference of $50 coming from Krantz at the settlement.

The fraud will be undone; the lots will have to be given back. A decree will be advised cancelling the deeds.


author: Backes, V. C.

text:
    O. G. E. Construction Company, complainant, v. Waldorf Holding Corporation, defendant.
    [Decided September 15th, 1932.]

      Mr. Walter A. Beers, for the complainant.

      Mr. Harry B. Binslcy, for the defendant.
   Backes, V. C.

The cause was submitted on a transcript of the testimony-taken before another vice-chancellor.

By contract in writing of June 10th, 1930, the defendant, Waldorf Holding Corporation, agreed to sell to Otto Groth twenty building lots in a subdivision known as Sheridan Park in West Orange, free and clear, for $36,000, to be secured by mortgage. Groth was to start the erection of a dwelling on each lot within two weeks, according to plans to be approved by the defendant corporation. The defendant corporation was to advance $200 on each house when rough enclosed, to be secured by mortgage. The defendant corporation also was to procure a building and loan mortgage of $6,000 on each house and out of the first and second installments it was to receive $900 respectively, the price of the lot. The twenty lots were subject to three blanket mortgages, each releasable upon the payment of $300 per lot, and it is inferable that the first installment of the building and loan mortgages was to be used for a release. Groth transferred his contract to the complainant company, of which he was president, probably his own operating company. The twenty houses were not started. Performance of the contract was modified. On July 29th, 1930, the defendant corporation conveyed to the complainant company five of the twenty lots, 45, 46, 51, 52 and 53 at $900 each (subject to the three mortgages which were releasable upon the payment of $900 per lot) and took in payment of the $4,500 purchase price and in repayment of $1,000 to be advanced ($200 a house to be built on each) a mortgage of $5,500. The complainant company built houses on lots 45, 46 and 52 and received $600, the advance of $200 on each house. The defendant corporation procured a $6,000 building and loan mortgage on each, released or subordinated its mortgage as to them and received $900 from each mortgage and a return of the $600 advanced. The prior mortgagees released the three lots. The defendant corporation was unable to obtain building and loan mortgages on lots 51 and 53 and houses were not built on them. One of the prior blanket mortgages was foreclosed, wiping out the equity of redemption in these two lots as well as the remaining fifteen of the twenty which were to be conveyed. These are the facts as nearly as they can be made out from the transcript in which more facts are lacking than are told.

The object of the bill is to compel the defendant corporation to release lot 52 from the operation of its mortgage, as, it is claimed, it had done with lots 45 and 46, upon receiving proportionate payments from the building and loan mortgages. There was no contract to release upon payment pro tanto. The original agreement to convey the twenty lots contains no such provision, nor does the evidence show an agreement to that effect when the five lots were conveyed. The conveyance of the five lots was undoubtedly in part performance of the contract to convey the twenty lots, modified only in this respect: The twenty lots were to be conveyed at the price of $1,800 each, free of the three blanket mortgages, the release of which the defendant corporation was to obtain at a cost of $900 each; whereas the five lots were conveyed at $900 a lot subject to the mortgages, the release of which the complainant could obtain at a cost of $900 each. The complainant’s prayer for a release must be denied for failure of proof of an agreement to release, but the prayer of the bill to cancel the mortgage may be sustained by altogether ignoring the allegations of a promise to release and by treating the allegation of the defendant corporation’s failure to obtain building and loan mortgages on lots 51 and 53 as setting up part failure of consideration. The covenant of the defendant corporation to procure a $6,000 mortgage on each of the twenty lots inhered in the conveyance of the five lots, and was breached as to lots 51 and 53. A fair interpretation of the contract is that the complainant company was to be put in funds to pay the defendant corporation’s mortgage by the latter procuring building and loan mortgages. The covenant to pay and the covenant to procure the means to pay were mutual. The defendant corporation defaulted and the loss of the two lots by foreclosure of one of the superior mortgages is to be laid at its doors. To the extent of $1,800, the price of the two lots, and the $400 to be advanced on the two houses to be built on them, which was not in fact advanced, there was a failure of consideration. They equal the balance due on the mortgage and the complainant would be entitled to have it surrendered but for this: The defendant corporation gave the president of the complainant a check for $500 in connection with the building operation. He denies it and he denies his endorsement on the check, but a comparison of his endorsement with his signatures on other checks indicate that he is wrong. Hpon the payment of $500 and interest the complainant may have a decree.

Due to continual interruptions of the witnesses, frequent interference with examining counsel by opposing counsel and constant bickering, both counsel labored under considerable handicap in presenting the facts. Had they been produced in an orderly manner it may have resulted in a different decision than the one we have reached on the very unsatisfactory record before us. For fear that the shortcomings at the trial may result in injustice to either litigant, counsel are at liberty, upon proper showing, to apply for a rehearing.


author: Ingersold, Y. C.

text:
    Marine Trust Company, a banking corporation of the State of New Jersey, complainant, v. Levi David et al., defendants.
    [Decided September 19th, 1932.]

      Messrs. Brenner & Kresch, for the petitioner Lillie Hasten.
   Ingersold, Y. C.

The property described in the bill of complaint was sold by the sheriff to the present petitioner, Lillie Hasten, for the sum of $14,050, the highest bid received therefor. Payment was made by her of the ten per cent, of said bid, or the sum of $1,410, and conditions of sale were signed by her, agreeing to pay the balance of $12,640 upon delivery of the deed at a time fixed therein, subject to the confirmation of the court.

Objections were made to the sale and after a hearing thereon the sale was affirmed and an order made in which it was stated: “It is further ordered that the said sheriff do execute a good and sufficient conveyance in the law to the said purchaser, Lillie Hasten, or her assigns, for the said mortgaged premises so sold.”

An appeal was taken to the court of errors and appeals upon said order and an order entered in this court restraining the sheriff from delivering said deed until the determination of said appeal. The said appeal has been heard and the order of confirmation affirmed.

The purchaser was, at the time fixed in the conditions of sale, and at all times since said date, has been prepared to make payment to the sheriff upon the delivery of the deed. The sheriff now declines to deliver the deed unless the petitioner shall pay to him interest upon the sum of $12,640 to the date of the delivery of the deed. The petitioner has not been in possession of the property nor has she received any of the fruits therefrom, and now prays for an order that the sheriff be directed to deliver said deed upon the payment to him of the amount of $12,640, without interest.

The general rule states that the foreclosure purchaser must complete his purchase at the time stipulated in the terms of sale and is liable for interest on any part of the purchase money unpaid from the time it was due under the terms of the sale, regardless of whether he has possession or not, provided nothing is done to keep him out of possession. 42 C. J. 209, 244.

It will be noted that the petitioner is in no way responsible for the delay or for the order restraining the sheriff, and also that the amount of the bid, without interest, is sufficient to pay the complainant’s claim, with interest to the present date, and leave a large surplus which would go to the defendants or those claiming under them should the premises have been in the custody of a receiver appointed by this court. .

The equities of this ease appear to be clear that the purchaser would not be compelled to bear the interest accruing by reason of the delay in the delivery of the deed by the sheriff, which delay was caused by an appeal taken by others than the purchaser, and she being without fault for such delay. Oldenberg & Kelly v. Register (Court of Appeals of Maryland), 118 Md. 394; 85 Atl. Rep. 411.

An order has heretofore been signed in accordance with these views.


author: Bbown, S. C. C.

text:
    KAROLINE KNABE, EXECUTRIX OF THE ESTATE OF PAUL KNABE, DECEASED, PLAINTIFF, v. HUDSON BUS TRANSPORTATION COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, ET AL., DEFENDANTS.
    Decided September 30, 1932.
    For the plaintiff, Nathan Baker.

    For the defendants, Messano & Messano.

   Bbown, S. C. C.

This cause comes before the court on a motion to strike out the complaint on the ground that it does not disclose a cause of action in that the action stated in the complaint is barred by the statute of limitations. The complaint charges that the plaintiff testator was injured, through the wrongful act of the defendants in the operation of their automobile, on January 12th, 1927, and died as a result of his injuries on July 3d, 1930, which was an interval of three and one-half years between the two events. Suit was brought by the executrix of the estate on the 29th day of June, 1932, or a period of five and one-half years after the alleged date the injuries were sustained. Plaintiff contends that inasmuch as the Death act of our state gives a new and distinct cause of action from the common law the two-year statute of limitations (3 Comp. Stat., p. 3164) does not apply. This statute provides:

“That all actions hereafter accruing for injuries to persons caused by the wrongful act * * * of any person * * * shall be instituted within two years next after the cause of such action shall have accrued.”

It will be seen that this statute refers to “all actions” and .therefore includes any action the decedent might have had at the time he was injured.

The plaintiff insists that according to the provisions of the supplement to the Death act (Pamph. L. 1917, ch. 180, p. 531; 1 Cum. Supp. Comp. Stat., p. 928), the plaintiff has a right to maintain her action because the last mentioned act provides that every action shall be commenced or sued within two years after the death of such deceased person. 2 Comp. Stat., p. 2260, § 4, directs that actions for trespass to person or property shall not abate on account of death and that the executor or administrator may recover damages in like manner as their testator or intestate would have had if he or she was living.

It can readily be conceded that the action in question did not abate on account of the death of Paul Knabe, and as the court reads the statute of limitations as well as the supplement to the Death act, it was not intended that the bar of the statute of limitations against an action should be suspended because of the death of a person. The action in the instant case for personal injuries was barred at the time of the death of Paul Knabe. The rights of the present plaintiff rise no higher than those of the deceased. The complaint will, therefore, be stricken and an order may be entered to that effect.


author: Elannagan, C. P. J.

text:
    Essex County Court of Common Pleas.
    ANNA WIGLER, PLAINTIFF, v. PUBLIC SERVICE COORDINATED TRANSPORT COMPANY, DEFENDANT.
    Decided October 6, 1932.
    Eor the defendant, Henry H. Fryling and Carl T. Freggens.

    Eor the plaintiff, Robert Dranow.

   Elannagan, C. P. J.

This is an action to recover impersonal injuries received in an automobile accident. The answer sets up contributory negligence by way of new matter and as a separate defense.

A bill of particulars is demanded of the alleged contributory negligence. This the defendant resists and moves to strike out the demand.

The first ground specified in the notice of motion to strike is that particulars cannot be ordered after answer filed. This objection is not well taken, and is expressly abandoned. Particulars may be ordered in a tort case at any stage.

In Abe Cantor v. Public Service Railway Co., post, p. 1285, Mr. Justice Katzenbach says:

“The defendant in this case moves for an order requiring the plaintiff to furnish answers to certain questions which considered together may be said to form a demand for a bill of particulars. * * *

“The plaintiff resists the motion on the following grounds —first, that a bill of particulars cannot be demanded in a tort action; second, that a bill of particulars cannot be demanded after an answer has been filed; and third, that the information asked for obliges the plaintiff to disclose matters of evidence to which the defendant is not entitled.

“In the case of Watkins v. Cope, 84 N. J. L. 143; 86 Atl. Rep. 545, Mr. Justice Parker said: cIt is true that section 103 of the Practice act of 1903 provides only for a demand of particulars in contract cases, but I do not understand that this in any way abrogated the common law practice of directing a bill of particulars to be furnished by either party in a proper case whether of contract or tort. Section 103 was repealed by the act of 1913, but rule 18, appended to the latter act says that “bills of particulars may be ordered as heretofore.” The rule at common law was well settled that in a proper ease particulars would be ordered in all classes of legal actions and the rule is broadly laid down in the famous case of Tilton v. Beecher, 59 N. Y. 176, with abundant citation of authority, that a bill of particulars is proper in all classes of actions where the circumstances are such that a party has to be apprised of the matters to which he is to be put on trial with greater particularity than is required by the rules of pleading.’ This disposes of the question that in tort actions the court has no power to order a party to furnish a bill of particulars.

“In Zitarski v. Hahne Company, decided in this court December 37th, 1913, the Chief Justice ordered that a bill of partciulars be furnished to the defendant after he had answered the plaintiff’s complaint, hence, a bill of particulars may be ordered to be furnished even after issue has been joined.

“The fact that this case is a tort action and that issue has been joined by the filing of an answer is no bar to the authority of the court to order a bill of particulars to be furnished the defendant by the plaintiff. The exercise of this power on the part of the court is discretionary and should only be exercised where the court is satisfied that justice to the demanding party requires the furnishing of the information sought. To hold otherwise would be to countenance a practice that would be harassing and vexatious and would, in many instances, prolong trials in matters relatively unimportant to the issue. Whether a demand for a bill of particulars should be ordered depends upon the circumstances of each case.”

In Buerman v. Morris, 8 N. J. Mis. R. 811; 152 Atl. Rep. 341, a tort case, Mr. Justice Bodine, in granting certain of the particulars asked for by the defendant after answer filed, says:

“It would, therefore, seem that courts were little concerned as to when the demand for particulars was made, providing that it was made so as not to delay the trial of the action.”

The second objection is that particulars should not be ordered in these present circumstances.

Where the injured party is a natural living person suing for his personal injuries received in an automobile accident the contributory negligence, if any, is peculiarly within his own knowledge. The effect of a bill of particulars being to confine the defendant to the facts contained in the bill, it would be unfair to limit the defendant to such acts of contributory negligence as it might be able to develop before trial when experience teaches that contributory negligence is often revealed on plaintiff’s own cross-examination as well as on cross-examination of plaintiff’s witnesses. Such practice would put defendant at the peril of discovering and advising plaintiff of what plaintiff himself is best qualified to know and might enable plaintiff to successfully suppress a complete defense well known to him though as yet undiscovered by defendant. For these reasons bills of particulars of contributory negligence in actions by living injured persons for their personal injuries in automobile accidents should be ordered with great circumspection.

Where the injured person is dead and the suit is by his representative, the plaintiffs knowledge, and sources of knowledge, of the conduct of his decedent might be very limited while those of the defendant might be greatly superior or even exclusive: In such a ease a different situation might be presented.

Bills of particulars have perhaps been more extensively considered by the courts of New York than by those of any other jurisdiction.

The following cases are interesting and enlightening on the subject before us: Egan v. Julius Tishman & Sons, 225 N. Y. Supp. 631; 222 App. Div. 141; Fernet v. James Stewart & Co., 148 N. Y. Supp. 646; 163 App. Div. 112; McCullum v. Beau-Site Co., 163 N. Y. Supp. 819; 176 App. Div. 681; Conklin v. Erie Railroad, 244 N. Y. Supp. 538.

These cases are persuasive that the present case, where the plaintiff was. a passenger in a public bus, is not a proper one for the remedy invoked

No rule can be found with which to measure the propriety of granting bills of particulars. Each case must stand by itself and, on its own individual merits, must appeal to the discretion of the court.

In the present case the motion to strike the demand for particulars will be granted.