author: Thompson, C. P. J.

text:
    Union County Court or Common Pleas.
    WILLIAM A. HARTY, PLAINTIFF, v. ELIZABETHTOWN CONSOLIDATED GAS COMPANY, A CORPORATION, DEFENDANT.
    Decided May 10, 1933.
    •Por the plaintiff, Martin P. O’Connor.

    Por the defendant, Francis A. Gordon.

   Thompson, C. P. J.

The complaint in this case is grounded on the alleged negligence of the defendant in maintaining a supply of gas in a pipe called a riser inside the cellar wall of plaintiff’s residence, so defective in condition that when “jarred and inadventently slightly touched” the pipe broke and gave forth gas fumes by which plaintiff was overcome and, as a result, fell to the floor, sustaining certain physical injuries as well as suffering from the effects of the gas itself.

The proof is that while plaintiff was engaged in splitting wood in the cellar in the vicinity of the gas pipe, using a hatchet as a wedge which he was driving into the wood by means of blows on the hatchet head with an axe, the axe glanced off, struck the pipe, which broke and permitted the gas to escape.

There has been some testimony to the effect that at the point of breaking the pipe disclosed a condition of corrosion, crumbling, raggedness, or other weakness, though the defendant offered evidence that the pipe was in good condition for the ordinary use and purpose for which it was designed; that its life was from fifty to sixty years or more, the pipe having been in use about thirty years at the time of the accident, and that the defendant had never had any complaint or any notice whatever of any alleged defective condition.

Conceding that this point alone might have presented a question for the jury rather than the court, were that the only issue involved, nevertheless, the plaintiff is bound to prove more than merely a defective condition in order to recover. He must prove that such defective condition was the proximate cause of the injury.

It is to that phase of the ease that I have given particularly careful consideration on the defendant’s motion for a directed verdict, for, unless the proof clearly shows that the defect in the pipe, assuming that there was a defect, was the proximate cause of the injury, or unless the proof present a fairly debatable question on that point, the plaintiff has no cause of action under the law, and the court must so rule.

The facts as to the finally determinative feature of the breaking are not in dispute. The plaintiff’s own proof is that a glancing blow of the axe hit the pipe and the pipe broke.

It is true that the defendant, being in control of the supply of a substance dangerous to human life, was under the duty of exercising a high degree of care that such substance should not be allowed to escape in such manner as to endanger life or health, and to use the recognized means of confining it so as to avoid risk under all reasonably anticipatory conditions. Failure to use such care may expose the defendant to the charge of negligence. But, as before stated, the question on this motion is, even if the jury could find such negligence, was that negligence the proximate cause of plaintiff’s injury ?

In Kelson v. Public Service Railroad Co., 94 N. J. L. 529; 110 Atl. Rep. 919, the Court of Errors and Appeals said:

“It is common knowledge that the negligence of the defendant must be the proximate cause of the plaintiff’s injuries —the proximate cause is the efficient cause — the one that necessarily sets the other causes in operation. Batton v. Public Service Corp., 75 N. J. L. 857. There must be an unbroken causal connection. The famous Squib case is a familiar illustration. Scott v. Shephard, 2 W. Bl. 892. The proximate cause is that cause which naturally and probably lead to, and which might have been expected to produce, the result. Wiley v. West Jersey Railroad Co., 44 N. J. L. 251; Smith v. Public Service Corp., 78 Id. 478; 75 Atl. Rep. 937. Whether the cause is too remote to allow compensation by way of damages is a question of law to be decided by the court. Mangan v. Atterton (L. R.), 1 Exch. 239; Clark v. Chambers (L. R.), 3 Q. B. D. 32-7, 337.”

In Davenport v. McClellan, 88 N. J. L. 654; 96 Atl. Rep. 921, the Court of Errors and Appeals said:

“An intervening cause is the act of an independent agency which destroys the causal connection between the negligent act of the defendant and the wrongful injury, the independent act -being the immediate cause, in which case damages are not recoverable because the original wrongful act is not the proximate cause.”

In Migliaccio v. Public Service Railway Co., 101 N. J. L. 496; 130 Atl. Rep. 9, the Supreme Court said:

“It. is necessary for a plaintiff, in order to recover, to prove that the defendant did an act or omitted to do an act which a person of ordinary prudence could foresee might naturally and probably produce the injury complained of, and that such act or omission did actually cause the injury. In many cas'es, perhaps the majority of cases, the inquiry turns upon the question as to whether there exists an intervening cause efficient in itself to produce the injury complained of. But it is as necessary for the plaintiff to establish the fact that the injury is one which might have been reasonably anticipated by the wrong-doer as it is to show that there was no other intervening cause efficient in itself to work the injury complained of. Anticipation is an essential element of proximate cause.”

In the case we are trying, if the proof had shown that the plaintiff deliberately attacked the gas pipe with an axe, 'thus breaking it, it could scarcely be argued that the defendant would have been responsible for what happened, for it cannot reasonably be expected to have anticipated such an untoward contact and interference with the status quo. So, if the contact or interference in this case, the blow from the glancing axe, instead of being deliberate, were merely accidental, a mishap or misfortune, I cannot see why the burden of such a mishap or misfortune should be transferred from the shoulders of the plaintiff, who initiated it, to the defendant, whose pipe line suffered it.

Assuredly some almost uncanny ill luck seems to have followed plaintiff’s efforts to split his wood, but surely the events followed an independent act of the plaintiff and were in no way to be reasonably anticipated by defendant whose gas pipe lay quietly resting by the wall, holding intact the gas within adequately and effectively, until this outside agency disturbed its effectiveness by the unexpected attack. It is hardly conceivable, or reasonable to suppose, that gas pipes shall be maintained to survive blows of hard implements, whether intentionally or unintentionally inflicted.

If this be true, then the condition of the pipe was not in this case the proximate cause of the injuries, and a verdict of no cause of action will be directed in favor of the defendant.

Accordingly, the court will direct the jury to find a verdict of no cause of action in favor of the defendant in this case.


source: Caselaw Access Project

author: Backes, V. C.

license: Public Domain

text:
    Joseph M. Clare, complainant, v. Ice Cream Cabinet Company, Incorporated, and Reid Ice Cream Corporation, defendants.
    [Decided May 20th, 1933.]

      Messrs. McCarter & English, for the complainant.

      Messrs. Child & Shipman and Mr. Waldron M. Ward, for the defendants.
   Backes, V. C.

According to the bill, the complainant has a confectionery and ice cream business in Ridgefield Park. In June, 1932, the Reid Ice Cream Corporation loaned him a refrigerator, and he promised to use its ice cream. In October following, the loan was abrogated and he entered into an agreement with Ice Cream Cabinet Company, Incorporated, for the purchase of the refrigerator upon conditional sale, that he pay for it $315.50 in monthly installments of $8.76, represented by notes running over a period of three years, and upon his promise during that time to use the refrigerator “solely for the purpose of storing or preserving the ice cream sherbets or other frozen commodities manufactured and/or sold by Reid Ice Cream Corporation.” The right was reserved to retake upon failure to pay or upon breach of the covenant regarding the use of the refrigerator. The next day the com-

plainant tried to undo the transaction and two weeks later shipped back the refrigerator. The Ice Cream Cabinet Company, Incorporated, held it in storage for him and demanded payment of the installments due and threatened suit. Suit was brought on the first two notes, whereupon this bill was filed and the suit restrained. The prayer of the bill is that the conditional bill of sale be decreed to be illegal and contrary to public policy and that it and the notes be surrendered. The charge is that the contract is one of many put out in the trade by the lee Cream Cabinet Company, Incorporated, and Eeid Ice Cream Corporation, subsidiaries of The Borden Company, large dealers throughout the country in milk, ice cream, sherbets and other dairy products in interstate commerce; that the practice is rapidly expanding and increasing whereby, with the exaction such as required of the complainant to use the refrigerator solely for the storing of Eeid Ice Cream Corporation’s products “a monopoly is attempted to be and is gradually beginning to exist in the said territory (New York, Metropolitan district) in the ice cream business by the Eeid lee Cream Corporation, the Ice Cream Cabinet Company, Incorporated, and other subsidiaries of The Borden Company.” No fraud or unfairness in the sale of the refrigerator is charged. The whole bill rests on the claim that the sale of the article, coupled with the covenant as to use, is in undue restraint of trade and in promotion of a monopoly prohibited by the federal law found in the fourteenth section of the Clayton act which makes it unlawful for any person engaged in interstate commerce, in the course of such commerce, to make and sell, or contract for the sale of goods for use within the United States on the condition, agreement or understanding that the purchaser shall not use or deal in the goods, wares or other commodities of a competitor, where the effect of such sale may be substantially to lessen competition or tend to create a monopoly in any line of commerce.

Wherein lies a threatened monopoly? Surely not in the complainant’s covenant to store Reid’s ice cream, only, in the refrigerator. Federal Trade Commission v. Sinclair Refining Co., 261 U. S. 463; People’s Brewing Co. v. Levin, 78 N. J. Eq. 588. He is not restricted from buying or from storing the ice cream of other concerns in other refrigerators. To his plea, that his store is too small for another- apparatus and that other dealers are in the same fix, there is a simple prescription: Let him and them enlarge if they want to install competing refrigerators.

The complaint that the contract lacks mutuality, in that there is no obligation by the Reid Ice Cream Corporation to sell, no price is fixed, &c., is a vain cry. It is implied that the company will supply the products as required, in the regular course of business, at customary prices. If it defaults the complainant may default. People’s Brewing Co. v. Levin, supra.

The notes were given for the apparatus, so was the covenant. The promise to pay is sought to be enforced, not the collateral promise to use the apparatus in a particular manner. The promise to pay is valid, the covenant to use may not be en-forcible. The former stands though the latter fall. Rosenbaum, v. United States Credit System Co., 65 N. J. Law 255.

There is no merit in the bill and it will be dismissed.


author: Per Curiam.

text:
    EVA M. VANDERHOOF, PLAINTIFF-APPELLEE, v. PAULINE CROSBY AND EDWARD CROSBY, DEFENDANTS-APPELLANTS.
    Submitted October term, 1932
    Decided May 25, 1933.
    Before Brogan, Chief Justice, and Justices Trenchard and Case.
    For the appellants, Ovidio C. Bianchi.

    For the appellee, Giordano <& Singer (Ralph B. Giordano, of counsel).
   Per Curiam.

This is the appeal of the defendants below from a judgment of the District Court in favor of the plaintiff.

The action was brought to recover $355.80 which the plaintiff alleged was due by virtue of an agreement made between plaintiff and the defendants, and the judgment was entered upon the verdict of a jury.

The suit was brought in the Orange District Court and by stipulation of counsel was transferred to the East Orange District Court. In the latter court when the case came on, the counsel of the defendants moved to dismiss, claiming that the court was without jurisdiction because no summons had been issued out of the East Orange District Court. That motion was denied and the parties proceeded to trial. We believe that under the authority of Morley v. McDonald, 98 N. J. L. 275; 118 Atl. Rep. 582, the court had jurisdiction in view of the stipulation entered into by the counsel who represented the parties throughout the entire proceedings.

We come now to the merits. The suit was begun November 2d, 1931. It appeared at the trial that the defendants owned real estate subject to a street assessment that was due and payable in ten equal yearly installments. On November 16th, 1929, defendants made a deed for that real estate to ■plaintiff and at the same time the parties entered into an agreement which recited that the assessment was a lien payable in ten equal installments and that in consideration of the plaintiff’s accepting the deed subject to that lien the defendants agreed to assume and pay the assessment in ten equal installments. It further appeared that the defendants did not pay the first two installments upon their becoming due and payable, and that thereupon the plaintiff paid the entire assessment and brought this action against the defendants for the entire amount thereof. It further appeared that the defendants took the position at the trial that the plaintiff could recover only for the two unpaid installments and not for the full amount of the assessment, and that the only judgment that could be entered against the defendants was a judgment for the amount of the two installments that they had not paid in accordance with the terms of their agreement; and further, the record shows that the defendants requested the court to direct the jury to bring in a verdict for the amount of the said two installments, which motion was denied and an exception allowed.

We think the specifications of the determinations with which the defendants were dissatisfied properly raise the question as to the legal propriety of the judgment for the entire amount.

Now we think that the judgment was improper. The obligation assumed by the defendants under the agreement was to pay in ten equal installments, and only two of these were due and unpaid. It would seem to follow that plaintiff’s damages were limited to the amount of those two unpaid installments, with interest, it not appearing that there was any provision that such a default was a breach of the entire contract having the effect of making all the payments due.

The judgment will be reversed and a new trial awarded. Costs to abide the event.


text:
    JOHN RINGLEBEN, PLAINTIFF-APPELLEE, v. CITY OF LONG BRANCH, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.
    Submitted October term, 1932
    Decided May 25, 1933.
    Before Beogan, Chief Justice, and Justices Teenchabd and Case.
    For the appellant, Jacob Steinbach, Jr.

    For the appellee, Thomas D. Nary.

   Per Curiam.

This is an appeal from a judgment entered in the District Court of the First Judicial District of the county of Monmouth in favor of the plaintiff on the verdict of a jury.

The suit was to recover $300 for work done in drawing specifications and plans for street lighting for the city of Long Branch.

It appeared at the trial that the plaintiff for years had been employed as an electrician in charge of the maintenance of the electric lighting equipment of the city. His case, supported by evidence was that on October 10th, 1929, the commissioner of public safety (Long Branch being under the Walsh act and governed by commissioners) entered into an agreement with the plaintiff whereby he should prepare plans and specifications for new electric equipment contemplated by the city, and in return therefor should receive $50 for each street for which the plans and specifications were drawn); that such specifications and plans were drawn by the plaintiff for six streets pursuant to such agreement; that the work so planned was let out to bid by the city and completed; that he rendered his bill to the city and the bill was unanimously approved by the full board of commissioners' and was ordered paid. Soon thereafter there was a change of commissioners, the new mayor refused to approve the bill, and it was not paid, and this suit was brought to recover the agreed compensation.

We shall notice only those specifications of determinations which appear to be in proper form. Of those to be noticed are several having to do with the admission of testimony tending to show the authority of Mr. Brown, the commissioner of public safety, to enter into the contract. The appellant’s argument seems to be that the testimony of Mr. Brown was incompetent to prove his agency. We incline to think that such examination was competent. Leonard v. Standard Aero Corp., 95 N. J. L. 235, 237; 112 Atl. Rep. 252. But ipart from that, such question is really not important because it seems to appear beyond dispute that there was a ratification of the contract and that the full board of commissioners resolved unanimously to pay the bill and ordered it paid. That appears by the resolution passed on May 17th, 1932.

The appellant says that there was no power in the city to make the contract; but we can find no merit in that contention.

Appellant says that the plaintiff is barred from recovery by reason of his being on a salary with the city. We think there is no merit in this. Plaintiff’s regular duty was to see that the electrical equipment of the city was maintained in proper order. The contract in question was outside of his regular employment and the evidence was to the effect that the performance of the contract for which compensation is sought did not interfere with the duties for which his salary was paid, and so, under the authority of Evans v. Trenton, 24 N. J. L. 769, we think he is not barred from recovery.

Appellant seems to contend that there is no proof that plaintiff performed the work. We think there was ample proof.

Appellant contends that plaintiff should not recover because there was no showing that any appropriation was made by the city for payment for the work. We think there is nothing in this. We find no evidence that there was no appropriation from which the plaintiff could be paid, and if in fact there was no appropriation, the burden was on the defendant to show it, and that it did not do.

The judgment will be affirmed, with costs.


author: Jayne, C. C. J.

text:
    Union County Circuit Court.
    THE ELIZABETH GENERAL HOSPITAL AND DISPENSARY, A CORPORATION, PLAINTIFF, v. LOUIS P. LONGOBARDI, DEFENDANT.
    Decided March 4, 1933.
    For the plaintiff, John F. Ryan.

    For the defendant, Louis P. Longobardi, pro se.

   Jayne, C. C. J.

The controversial questions debated by counsel in the above entitled action have been submitted in a very informal manner to me for determination. The stipulation into which the parties have entered is not comprehensive of all of the essential facts alleged in the complaint, but reading the stipulation and briefs delivered to me, I assume that it is desired that I shall, in deciding the legal questions, accept as true, all of the allegations of fact contained in the complaint, together with the known fact that the defendant is a practicing attorney of this state and was so engaged in the practice of his profession at the time of the occurrence with which I am concerned. With this asumption, I conclude that on or about December 13th, 1930, one Vincenzo Augustino suffered bodily injury as a proximate result of the negligent operation of an automobile by one Frederick O. Stillman. The injuries sustained by Augustino were such that he was taken to the hospital conducted by the plaintiff, where he remained under care and treatment for a period of two hundred and five days.

On April 17th, 1931, there was filed in behalf of the plaintiff in the office of the clerk of the county of Union, a written notice pursuant to chapter 72 of the laws of 1930 as amended by chapter 158 of the laws of 1930. On some date subsequent to the occurrence of the automobile accident, of which I am uninformed, Augustino engaged the defendant to represent him as an attorney in the recovery of damages from Stillman in compensation for the personal injuries so sustained by Augustino. It seems apparent that the defendant was retained for this service upon a contingent basis, that is, with the understanding that his fee for his professional services would be dependent upon the recovery of damages and would be paid out of the damages so recovered. Stillman appears to have been protected by insurance against liability for injuries caused by the operation of his automobile, and the defendant communicated in behalf of his client, Augustino, with the insurance carrier, and ultimately negotiated a settlement of the claim of his client in the amount of $3,000. Copies of letters addressed by the defendant to the representatives of the insurance company under dates of August 27th, 1931, and September 24th, 1931, disclose by their contents that the defendant was fully aware of the indebtedness of his client to the plaintiff. In these communications, the defendant represents to the insurance carrier that the hospital bills at that time amount to approximately $700. On or about October 16th, 1931, the defendant received a draft on the Home Indemnity Company of New York in the sum of $3,000 payable to the defendant and to Yinconzo Augustino, his client, in settlement of the alleged liability of Frederick O. Stillman. The defendant collected the proceeds of the draft and paid to his client therefrom $2,400 retaining $600 of the proceeds of this draft in payment of his professional services. The indebtedness due the plaintiff for hospital care and treatment of Augustino remained unpaid after this distribution of the proceeds of the settlement, and the plaintiff thereafter recovered judgment against Augustino for the amount of such indebtedness, but the plaintiff, having exhausted every reasonable effort, has been unable to recover more than $20 of this indebtedness from Augustino. In this situation, the representatives of the plaintiff have ascertained that the defendant retained the sum of $600 from the proceeds of the settlement, and thus a claim is made in behalf of the plaintiff that the proceeds of the settlement become, by virtue of the legislation to which I have referred and the filing of the requisite notice thereunder, subject to the lien thereon of the plaintiff for the recovery at least pro tanto of its indebtedness. A friendly action is thereupon instituted by the plaintiff against the defendant for the quite apparent purpose of requiring a judicial determination of the legal efficacy of the plaintiff’s lien upon the part of the proceeds of settlement so retained by the defendant.

Section 2 of chapter 72 of the laws of 1930, apparently unchanged by chapter 158 of the laws of 1930, expressly provides that the lien of any such hospital shall attach * * * to the proceeds of anjr settlement thereof or the settlement of any such claim or demand affected by any such injured person with any other person or corporation whose negligence is claimed or alleged to have been the cause of the said accident or affected with any other person or corporation on account thereof. It is conceded that the plaintiff is an hospital comprehended by the provisions of this statute, and that Augustino was admitted to and received treatment, care and maintenance in the plaintiff’s hospital on account of the injuries received in the automobile accident. The filing of the requisite notice of lien pursuant to the statute is not in dispute. No suit or action was instituted by the defendant in behalf of his client. The defendant had actual and constructive notice of the indebtedness due the plaintiff at the time he became possessed of the proceeds of the settlement. He argues that he has a common law lien upon the moneys of his client which came into his possession to insure the payment of his reasonable charges for his professional services. Assuming that he has at the common law such a lien, it would attach only to the interest of his client in such a fund and then only when he, the defendant, became possessed of the fund. If the lien had already been imposed upon the fund before it came into the defendant’s possession as attorney, surely any lien thereon which the attorney could assert to recover fees due him from his client, would attach only to the property interest of his client in such fund. Moreover, the statute under which the plaintiff claims its lien specifically provides that such hospital shall have a lien upon any and all rights of action * * * or demands of any person admitted to any such hospital and receiving treatment, care and maintenance therein on account of any personal injuries received in any accident as the result of the injuries of any other person. The legislative intent in the enactment of this statute seems apparent. It was intended that the hospital lien should attach to the right of action and demand of the injured person. The plaintiff’s lien upon the claim and demand of Augustino for damages and upon the proceeds of settlement in the circumstances of this case was prior to any lien that may be claimed upon such proceeds by the defendant. The lien, if any, of the defendant, being subsequent in time and taken with full notice of the lien of the plaintiff, must, in the circumstances of this case, be regarded as subject to it. Of course, ordinarily by reason of the provisions of the third section of this statute of 1930, the insurance carrier would have safeguarded its own interests by requiring payment of the indebtedness due the plaintiff at the time of the consummation of the settlement and thus, in such cases, the defendant would ordinarily receive in behalf of his client the balance of the proceeds to which his client is solely entitled.

I have disregarded many points manifestly suggested by the apparent circumstances of this case but which are untouched and unexplained by any of the papers submitted, such as the continued liability of Frederick O. Stillman for a period of one year after the consummation of the settlement for the payment of the hospital expenses and other procedural questions, because of the understanding with which this case is submitted to me for decision.

In conformity, therefore, with the terms of the stipulation, I conclude that the defendant, as attorney, came into possession of the fund of $3,000, constituting the proceeds of the settlement, subject to the lien of the plaintiff, and that in the circumstances, such part of the proceeds of this settlement retained by the defendant, continues to be subject pro tanto to the plaintiff’s lien and that the plaintiff’s lien upon such proceeds of settlement is prior and superior to the lien, if any, thereon of the defendant. It is my understanding that under the terms of the stipulation, the plaintiff is entitled by virtue of this conclusion to the entry of a judgment against the defendant in the sum of $419.50, together with interest thereon from October 16th, 1931. It seems to me no costs should be exacted of the defendant.


author: Hartshorne, C. P. J.

text:
    Essex County Court of Common Pleas.
    JOSEPH MARTINEZ, PETITIONER-APPELLANT, v. W. G. FRITZ COMPANY, INCORPORATED, RESPONDENT-APPELLEE.
    Decided May 1, 1933.
    For the petitioner-appellant, David lioskein.

    For the respondent-appellee, Bdwin Joseph O’Brien.

   Hartshorne, C. P. J.

The principal question in this case is as to the effect to be given to a previous award to petitioner by the industrial board of New York state, for the same accident here involved. Petitioner was injured in Saratoga, but there was a question of fact as to whether the employment contract arose in New Jersey or in New York, so that the parties press the question of the jurisdiction of the New York and New Jersey authorities.

The accident occurred September 5th, 1930, proceedings were promptly instituted in New York, petitioner appearing there, he was paid compensation concurrently and, on May 12th, 1931, the compensation was ordered paid to date and the case closed out “in lull settlement of the claim.” Ten days later he filed his New Jersey petition for the same accidental injury. This was dismissed and is now on appeal, the above facts having been proven before the New Jersey bureau.

Certain preliminary questions may be briefly disposed of. In the first place, the fact that the record of the New York industrial board has not been exemplified is waived, but objection to its consideration is made on the ground that the same was not proven by respondent before the New Jersey bureau until eleven months after the New Jersey bureau had reserved decision. When such record was received, petitioner was at the same time given an opportunity to present further proof, which he did not do. This subsequent reception of evidence by the bureau was clearly within its power, since the deputy commissioner there sat both as court and jury with the right to take additional testimony until decision was rendered.

Not only did petitioner seek his own forum in New York state and receive full compensation there, according to the laws of that state, for the cause of action he now claims, but he took no appeal from the decision of the New York board and the New York statute provides “an award or decision of the board shall be final and conclusive * * * unless reversed or modified on appeal.” New York Laws 1913, ch. 816, art. 1, § 23; Sparduto v. New York City Interborough Railway, 186 N. Y. A. D. 80, 145. Petitioner does not attack the jurisdiction of the New York board, nor can he while he retains the fruits of its award. The mere fact that, almost a year after the New York decision, on a belated application to pay a medical bill, the New York board referred to a jurisdictional question then pending in New Jersey in the case (i. e., the present proceedings), cannot affect the finality of the New York decision, particularly since the New York board ordered the medical bill paid by the respondent in New York. No amount or kind of proceedings in New Jersey can affect the finality of the New York judgment per se, when standing without appeal.

Obviously, petitioner cannot receive two satisfactions for the same cause of action. Hence, the question of whether or not the New Jersey bureau has jurisdiction is immaterial. Assuming, for the sake of argument, that it has, the objection to its now redetermining the question as to compensability goes deeper than that. The New York judgment proven here constitutes res adjudicata here under the full faith and credit clause of the federal constitution, quite regardless of whether the New York proceedings were those of a court of general jurisdiction or a mere statutory tribunal of inferior jurisdiction. Smith v. Swart, 103 N. J. L. 150; 134 Atl. Rep. 755; Amerman v. Briggs, 50 N. J. L. 114; 11 Atl. Rep. 423. Since such New York judgment has been satisfied, there is a complete bar. Traflet v. Empire Life Insurance Co., 64 N. J. L. 387; 46 Atl. Rep. 204; Kennealy v. Leary, 67 N. J. L. 435; 51 Atl. Rep. 475.

Respondent further urges that, at the time the appeal was taken, the statute governing appeals (Pamph L. 1932, ch. 25, p. 38), has just been amended to provide for such appeal to be taken “to the Court of Common Pleas of the county in which such accident occurred ” whereas, or at least previous to the one year change during 1931, the appeal was to be had “to the Court of Common Pleas of the county in which hearing was held.” Pamph. L. 1921, ch. 229, p. 734. At least, as to all accidents occurring since the above amendment, it would now appear that the only way to review the award of the New Jersey bureau on an accident outside the state was by the common law writ of certiorari. However, since the accident here occurred prior to such amendment, the nice question arises whether such amendment can validly affect the remedies of the present parties under the provisions of the New Jersey constitution, which are so much more stringent than the similar provisions of the federal constitution. New Jersey constitution, article 4, section 7, paragraph 3; Federal constitution, article 1, section 10, paragraph 1.

Since, in the view of the court, the first ground above mentioned is decisive, it becomes unnecessary to determine this last point.

The petition will accordingly be dismissed.


author: Goldberger, J.

text:
    Perth Amboy District Court.
    MALVE LEVINSON, PLAINTIFF, v. SEEMAN BROTHERS, INCORPORATED, A CORPORATION, DEFENDANT.
    Decided June 7, 1933.
    Por the motion, Milton M. Unger.

    Por the plaintiff, Leo Lowenhopf.

   Goldberger, J.

This matter comes before me on a motion by the defendant to quash a -writ of attachment on the grounds that the writ was improperly issued in an action in tort, and further because the damages are unliquidated and do not form a basis for writs of attachment. The affidavit upon which the writ is based alleges, "defendant did negligently put up and distribute for sale canned food products containing foreign substances which caused injuries to deponent.”

The practice of attaching the effects of a defendant and holding them to satisfy a judgment which the plaintiff may recover, when perhaps the judgment may be for the defendant, is unknown to the common law and we therefore must depend entirely upon statutory enactment.

The remedy by attachment exists in this country by virtue of statutory enactment alone and is in derogation of the common law. It is summary in its effects and liable to be abused and used oppressively.

Por these reasons it is the prevailing rule that the statutory provisions upon which the right depends, should be strictly •construed as to both the modes and the subject of attachments. Am. Eng. Encyc. L. (2d ed.) 183, &c.; Bond v. Ward, 7 Mass. 128; Little v. Long, 93 N. J. L. 99; 107 Atl. Rep. 412.

Por the history of the practice relating to attachment in this state prior to the establishments of District Courts and since, see Hotel Registry Realty Corp. v. Stafford, 70 N. J. L. 528; 57 Atl. Rep. 145.

In order that the plaintiff may succeed he must come within sections 69 and 78 of the District Court act governing the question at issue.

Under section 69, attachment will issue only where there is a “certain sum” of money due to the creditor and is applicable to both non-resident as well as absconding debtors. 'The statute is very specific in the use of the words “debtor,” “creditor,” and “certain sum,” and undoubtedly has exhibited thereby its intention to reserve the use of the writ to actions •arising on contract.

Section 78 provides for the issuance of a writ only in cases where a capias ad respondendum may issue in any action upon •contract, and then only upon the order of the court based upon affidavits. This may be applied to residents or non-residents.

Construing the two sections together, it is evident that no provision has been made in District Courts for the issuance •of writs of attachment in tort actions. The plaintiff contends section 68 of the District Court act, providing “the practice •of the Circuit Court in so far as applicable shall apply to District Courts, excepting, however, in cases where there may be some expression of the law providing otherwise,” applies. This, however, is ill-founded, as this section is in no way intended to create a substantive right where the legislature 'has undoubtedly exercised no such right.

The writ will be quashed for two reasons:

1. No attachment may issue out of the District Court upon •an action in tort.

2. The damages of the plaintiff are unliquidated and do not form a basis for a writ of attachment in this court. Sher v. Church, 93 N. J. L. 73; 107 Atl. Rep. 57.


author: Mathews, J.

text:
    First Judicial District Court or Burlington County.
    COMMERCIAL UNION ASSURANCE COMPANY, LIMITED, OF LONDON, ENGLAND, PLAINTIFF, v. BURLINGTON COUNTY TRUST COMPANY, A CORPORATION, AND CINNAMINSON BANK AND TRUST COMPANY, TRUSTEE, A CORPORATION, DEFENDANTS.
    Decided February 17, 1933.
    For the plaintiff, Joseph E. Haines.

    For the defendant Cinnaminson Bank and Trust Company, Cwrry PiCrnell.

    For the defendant Burlington County Trust Company, William D. Lippincott.

   Mathews, J.

The plaintiff brings this action against the defendants to recover the premium on an insurance policy for $30,000, which premium amounts to $335.60. The facts were submitted to the court by stipulation and so far as are pertinent to a determination of the legal question involved, are as follows:

The policy was issued by the plaintiff to the assured, John S. Warner Company, on premises owned by that company in Palmyra, New Jersey, and ran for a period of one year from December 39th, 1930. No loss occurred during the period covered by the policy. The policy in question had attached to it two New Jersey standard mortgagee clauses, one in favor of the defendant Burlington County Trust Company as first mortgagee (or trustee), as its interest might appear, and the other in favor of the Cinnaminson Bank and Trust Company, trustee for second mortgage bondholders, as second mortgagee (or trustee), as its interest might appear. The important section of these clauses (which are identical except as above mentioned) is as follows:

“* * * and this insurance, as to the interest of the mortgagee (or trustee) only herein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within--described property, nor by any foreclosure or other proceedings or notice of sale relating to the property nor by any change in the title or ownership of the property, nor by the -occupation of the premises for purposes more hazardous than are permitted by this policy; provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand pay the same.

“Provided, also, that the mortgagee (or trustee) shall notify this company of any change of ownership or occupancy or increase of hazard which shall come to the knowledge of said mortgagee (or trustee) and, unless permitted by this policy, it shall be noted thereon and the mortgagee (or trustee) shall, on demand, pay the premium for such increased hazard for the term of the use thereof; otherwise this policy shall be null and void.”

The policy, with the two clauses attached, was delivered to the defendant Burlington County Trust Company and remained in its possession during the term thereof. The premium sued for has never been paid to the plaintiff either by the assured or by either of the defendants and no notice of cancellation was served upon the assured or either of said defendants during the term of the policy, and the policy remained •alive and effective during the entire term for which it was written. Demand for payment of the premium was made by the plaintiff upon the defendant Burlington County Trust Company, on May 9th, 1932, and upon the defendant Cinnam in son Bank and Trust Company, as trustee, on August 16th, 1932. No previous demand has ever been made by the plaintiff upon either of the defendants for the payment of the premium, the, defendants were never informed by the plaintiff of the non-payment of the premium, nor had defendants knowledge of such non-payment prior to those dates.

There are further stipulations of facts which I do not think essential to' a decision of the point involved.

Defendant Cinnaminson Bank and Trust Company raises no question as to its being bound by the clause in any event under the above circumstances, but both defendants in a combined brief seem to take the position that they are hound thereby, leaving the sole question in the case the construction to be placed upon the wording of the mortgagee clause so far as the issue in this case is concerned. The policy itself is not made part of the stipulation and the court, therefore, has no knowledge of the contents thereof.

The question involved, while it appears to be one of considerable importance, seems, strangely, to be a novel one in this state. Counsel for both plaintiff and defendants have cited authorities from other states passing upon the construction of this standard form of clause, those cited by one being in direct opposition to those cited by the other.

Of the cases cited by both parties the one which comes closest in referring to the question, in this state, is that of Hare v. Headley, 54 N. J. Eq. 545, cited by the plaintiff, in which the court (at p. 558), says¿ apparently referring to the additional insurance given to the mortgagee under policies containing such clauses as these, or where separate contracts of insurance have been made between the insurance company and the mortgagee (it is not quite clear which) :

“For this additional insurance, the mortgagee has, in this case, given additional consideration, viz., its own personal obligation to the insurance company to pay the premiums on demand if the mortgagor did not/’

The case, however, was one involving the right of subrogation upon the part of the insurance company upon paying its obligation to the mortgagee under a policy for which the premium had been admittedly paid by the owner. It seems to me that the most that can be meant by this language of the court is that if the mortgagee desired the continued protection provided for in the clause it must, upon failure of the owner to pay the premium, pay that premium itself.

In the first place the contract is obviously made between the owner and the insurance company for the benefit of third parties (mortgagees) as well as the owner. That the owner is obligated to pay the premium or consideration in the first instance at least is apparent from the wording of the clause. It is obvious, however, that the terms of the contract for the benefit of the mortgagees is somewhat broader than that for the benefit of the owner, but this could of itself in no way create any liability on the part of the mortgagees or either of them to pay the premium. Such liability, if it exists, must be ascertained in this case from the construction to be put upon the clause in question, and must be clearly demonstrated.

If the proviso in the clause be given the interpretation of an absolute contract to pay the premium upon failure of the owner to do so, it is perfectly obvious that that liability would arise the very instant the premium was due and payable by the owner, the owner failed to pay and demand was made upon the mortgagees and would continue for the statutory period of six years. If demand were not made promptly it might become a question as to when demand should have been made. Hence, in the first contingency noted the plaintiff could sue defendants immediately, they would be forced to pay and their redress would apparently be only by separate action against the owner or by including the amount in foreclosure proceedings. Obviously, they would have no right to cancel the policy and take out their own insurance. What further complications might arise where the mortgagees had assigned their mortgages or foreclosed them it is not necessary to discuss, but they will immediately occur to mind as presenting difficulties resulting from such an absolute liability to pay the premiums which leads one to the conclusion that the assumption of such a liability must be clearly expressed to be held to be intended.

A proviso always implies a condition unless subsequent words change it to a covenant. Bouvier’s Law Dictionary. Likewise is that the effect to be given in ordinary usage. Webster’s New International Dictionary, Meriam Edition, 1927. This latter dictionary also gives as the definitions of the word “provided,” the following:

“It being provided; on condition; with the stipulation; with the understanding; if * * and gives the last word, “if,” as a synonym of “provided.”

Without going into any detailed discussion of the cases cited from the other states, it seems to me that the proper construction to be placed upon the clause in question, from the foregoing as well as considering the remainder of the contract, is that that portion of it which provides that in case the mortgagor or owner shall neglect to pay the premium the mortgagee (or trustee) shall pay the same on demand, following as it does the terms waiving certain conditions which it may reasonably be assumed would otherwise invalidate the policy, and following also the word “provided” after a semicolon, constitutes solely a proviso or condition upon the performance of which such waiver will be effective, and cannot from the wording of the entire mortgagee clause be construed to be an absolute agreement or covenant upon the part of the mortgagee or trustee to pay the premium if it does not choose to do so and continue the insurance. The clause makes provision for cancellation by the plaintiff insurance company ten days after the violation of the terms of the policy, or ten days after the giving of notice to the mortgagee so far as the mortgage is concerned. If it gives such notice the mortgagee has the choice of paying the premium, if that be a violation of the terms of the policy, and take advantage of the continuation of the provisions of the mortgagee clause during the period of the policy. If it does not choose to do so it loses the benefit of the contract under the terms of the proviso, if the insurance company cancels the policy. If the insurance company does not choose to cancel the policy or give the notice it cannot thereby convert what is an option on the part of the mortgagee under certain circumstances into an absolute obligation.

Judgment will be entered of no cause for action against the plaintiff and in favor of both defendants.


author: Backes, Vice-Ordinary.

text:
    In the matter of the estate of Katherine Vance Colton, deceased.
    [Decided May 29th, 1933.]
   The orphans court of Essex county filed the following opinion:

“Katherine Vance Colton, the decedent, died July 19th, 1930, a spinster, at the age of eighty-seven years. She was born with a silver spoon in her mouth, was eccentric, isolated, inexperienced in any business or other competitive undertaking and a stranger to those subtle and faithless practices which too frequently accompany opportunity where large sums of money tempt the trusted. She had had the good fortune to have her business affairs taken in charge and well cared for by her brother, Mr. Charles S. Colton, up to the date of his death, September 23d, 1920.

“After the death of Mr. Charles S. Colton, Mr. Abel I. Culver took charge of her business affairs. Mr. Culver was married to the sister of Charles S. Colton’s widow, Mrs. Kate Parker Colton, who was also a second cousin of the decedent as well as her sister-in-law. Mr. Culver was an able and forceful man; by occupation a certified public accountant, a financial adviser and an ardent Wall street stock operato-r.

“Subsequent to the death of Charles S. Colton, Mr. Culver continued to act as the confidential business agent, adviser and factotum of the decedent, Miss K. Vance Colton, until the day of her death. At the time Mr. Culver took charge of Miss K. Vance Colton’s business affairs she was a woman of large means, owning property aggregating some $800,000 to $1,000,000 in value, and enjoying an annual income of some $40,000 to $50,000. She lived in a large and handsome home at 151 Clinton avenue, Newark, in a manner commensurate with her estate.

“Before the death of Charles S. Colton he and his wife lived with decedent, Miss K. Vance Colton, at the Clinton avenue home, but after his death his widow, Mrs. K. Parker Colton, became a member of Mr. Culver’s household, making her home with his family at their residence in Montclair, but maintaining at the same time a desultory connection with the home of Miss K. Vance Colton in Clinton avenue, Newark. Mrs. K. Parker Colton had no children and her nearest relative was her sister, Mr. Culver’s wife, Mrs. Lizzie Vance Parker Culver.

“Mrs. K. Parker Colton was also a rich woman, probably more so than Miss K. Vance Colton, as, in addition to inheriting through her husband an equal basis of relationship from the same original sources, she was an heir under the Winner estate from which Mrs. Culver received an annual income of $10,000.

“Mr. Abel I. Culver became also Mrs. K. Parker Colton’s business agent and factotum, assuming the management of her financial affairs.

“Mr. Culver’s relations to Miss K. Vance Colton were of the closest, confidential and most potent character. In conversation with one of the witnesses, who wanted to see Miss Colton, to obtain her signature to a deed, he himself described those relations as follows:

“ ‘I don’t think you had better see her because you must bear in mind that she is a very old lady. Sometimes she does things that she doesn’t know what she is really doing, and I am managing all of her affairs. You can readily see how peculiar and odd she is when she insists upon driving through the city of Newark in her carriage driven by horses.’ ***❖❖*#

“CI manage all of her affairs. You better not go to her. She does everything that I ask her to. She doesn’t do anything on her own initiative. She does everything that I ask her to, and I am very busy managing her affairs.’

“I am impressed with the idea that his words substantially picture the situation.

“After Culver assumed the control of the business affairs of Mrs. K. Parker Colton and of Miss K. Vance Colton, and on August 9th, 1922, Miss K. Vance Colton made a will, in which she made Mrs. K. Parker Colton and her favorite niece, Caroline West Colton,- her principal beneficiaries, and made Abel I. Culver one of her executors, with William I. Cooper as the other. Mr. Cooper was the president of the National State Bank, at which bank Miss Colton kept her account. This will is not the subject of controversy and has been admitted to probate by agreement of all parties to this proceeding subject to two codicils subsequently made, which codicils are the subject of this controversy and against which caveats have been filed.

“This will be followed from time to time by transfers, without consideration, of property of Miss K. Vance Colton to Mrs. K. Parker Colton and by transfers to Culver himself.

“By these transfers and by the disappearance of other property, the whereabouts or disposition of which is unknown or not revealed, Miss Colton during Mr. Culver’s stewardship was separated from the ownership of her home, 151 Clinton avenue, and her entire estate, except some $69,000 to $100,000.

“The interest of Culver in these transfers to Mrs. K. Parker Colton is manifest. She was his sister-in-law, his wife being her nearest relative. She was a member o-f his household, consisting of himself, his wife and his two children; she was a widow, childless and old, and leaned upon him and them for practically everything. He was in control of her property and financial affairs. There could be but one natural outcome of such a situation, namety, that his wife and children would succeed to her property or the major part of it. These hopes were well calculated, for on July 17th, 1928, Mrs. K. Parker Colton made a will leaving six-tenths of her property to Culver’s wife, Mrs. Lizzie Vance Parker Culver, and two-tenths to his children, Winthrop Parker Culver and Katherine P. Culver, appointing Culver sole executor without security fin any jurisdiction/ and on August 3d, 1929, she died.

“On June 12th, 1924, Miss K. Vance Colton executed a first codicil to her will and coincidentally therewith made the deed oí gift to her home in Clinton avenue to Mrs. K. Parker Colton, which has already been mentioned above. The codicil substitutes a bequest of the entire household goods and personal effects to Mrs. K. Parker Colton, instead oí the former bequest, under the will, to her and to Miss Caroline West Colton equally. It recites and fortifies the transfer of the Clinton avenue home and revokes the provisions dealing with this property. It also revokes the provision dealing with a cemetery lot.

“At this time Miss Colton was eighty-one years of age, failing in capacity and memory. Sometime previous Culver had called upon the attorney, the scrivener of the codicil and deed, and given instructions as to what the deed should contain and the codicil should provide, and on the occasion of the execution of these documents he brought Miss Colton to the attorney’s office, where she executed them. The drafting of the codicil was in such form that its effect could not be grasped by reading it alone and could only be understood by reading it in conjunction with the will.

“No major purpose is revealed, as accomplished by, or as calling for, this codicil save a fortification of the transfer made by the deed of the Clinton avenue property.

“The transfer of this home property, with the transfer of a large number of securities to Mrs. K. Parker Colton, was further fortified by a gift tax report which was prepared by Culver and executed by Miss K. Vance Colton about March 14th, 1925. By this document she reported, for gift taxes, her home and securities, transferred to Mrs. K. Parker Colton, aggregating $361,000 in reported value.

“While the attorney who drew the codicil and the deed to the home property testifies that he explained the papers to her, and although he doubtless believed she understood the whole transaction, subsequent events seem to show that she neither understood the effect of these papers nor the effect of the gift tax report.

“Some three months after the execution of this codicil and deed, and on September 15th, 1924, Miss Colton’s favorite niece, Caroline West Colton, died, but no change was attempted in Miss Colton’s testamentary dispositions until nearly five years thereafter. On July 26th, 1929, however, the second codicil which is in controversy, purporting to be occasioned by the death of Caroline West Colton, was executed.

“At this time Mrs. K. Parker Colton was on her death bed at her home in Culver’s house, having been found three days previously, July 23d, 1929, to be hopelessly afflicted with cerebral thrombosis, her death was imminent and actually occurred seven days later, i. e., on August 3d, 1929.

“The contingency presented by the expected death of Mrs. K. Parker Colton was that under the existing will and codicil of Miss K. Yance Colton, Miss Colton would, if she should die, die intestate as to her residuary estate.

“In the face of this contingency Culver hastened to have a second codicil prepared and executed by Miss K. Yance Colton. He first went to the office of attorneys in Newark, Eeed & Eeynolds, where the first codicil and deed had been prepared and executed. Mr. Eeed was away and Mr. Eeynolds stated that he was busy. Without waiting for Mr. Seed’s return or until Mr. Eeynolds could give him the necessary time, Culver proceeded to Jersey City and there requested Mr. YanWinkle to. draw a codicil. This, with some reluctancy, Mr. YanWinkle did. Under the will and first codicil, as then existing, Mrs. K. Parker Colton was the sole surviving residuary legatee, and as these papers were drawn her bequest would have lapsed in case of her death before that of the testatrix, Miss K. Yance Colton. The codicil which Mr. YanWinkle drew was phrased as being occasioned by the death of Caroline West Colton, which as already stated, had occurred about five years before. It re-established Mrs. K. Parker Colton as residuary legatee, but provided that in ease of her death before that of testatrix, then the entire residuary estate should go to Culver’s wife, Mrs. Lizzie Yance Parker Culver. As the death of Mrs. K. Parker Colton before testatrix was practically certain, being then imminent, this codicil virtually established Lizzie Yance Parker Culver as decedent’s sole residuary legatee. Culver then took this draft of codicil to Miss Colton’s home and had her execute it there without any independent advice and before her two maids as subcribing witnesses. This was on July 26th, 1929.

“Eighteen days before the execution of this codicil, viz., on July 8th, 1929, Mr. Culver’s facilities of control over Miss K. Vance Colton’s property had been increased by an authorization from Miss Colton giving him access to her safe deposit box, and on the 14th and 21st days of November, 1929, after Miss Colton’s death, there were transferred on the books of the company from Miss K. Vance Colton to Abel I. Culver eight thousand three hundred and one shares of the stock of the American Insurance Company of the value of some $225,000. No explanation is offered of this transaction.

“On April 30th, 1930, Miss K. Vance Colton executed to Culver a general financial power of attorney which was lodged with Miss Colton’s bank, the National State Bank. In the meantime Mrs. K. Parker Colton having died, viz., on August 3d, 1929, leaving Culver her sole executor, this power of attorney consummated Culver’s complete control over the properties of both of these two old ladies.

“Under this power he drew a number of checks to his own order; one for $2,500, two for $500, two for $200, one for $300 and one for $750. These checks are unexplained.

“The situation, from the standpoint of Miss K. Vance Col-ton, was at this date, that she was dependent upon Culver, his wife and their kin, for the occupancy of her home and the means to maintain it. All her property had passed from her except some $69,000 to $100,000 in securities.

“On July 19th, 1930, Miss K. Vance Colton died at eighty-seven years of age.

“The situation which now presented itself, from the standpoint of Culver, was, that he was in control of all the properties of the estates of these ladies without the necessity of accounting to anyone, save the members of his own family, except for certain obstacles, two slight and one which might be serious. The two slight obstacles were the one-tenth interests of his wife’s nephews, Theodore Stockley Parker and John Winner Parker, in the estate of Mrs. K. Parker Col-ton, and the other, the specific legacies in the will of Miss K. Vance Colton which had only to be paid to be disposed of. The obstacle which might be serious was the fact that Mr. William I. Cooper, the president of the National State Bank of Newark, was a co-executor under the will of Miss K. Vance Colton. Mr. Cooper might be curious about these transfers, especially the ones to Culver. This difficulty might readily have been cared for in the last codicil but could have been easily overlooked in the hurry with which that paper was prepared and executed.

“Upon the death of Miss Colton, Mr. Culver, learning that Mr. Cooper was in Atlantic City, promptly went there to see him and endeavored to induce him not to act as executor. Mr. Cooper testified that Culver said he would make it desirable for him not to serve, which Mr. Cooper, testifying with some show of indignation, said he declined to consider. On returning home, Mr. Culver wrote Mr. Cooper renewing his efforts, picturing a situation of difficulty, threatening that he would refuse to serve if Cooper served, stating that his relations with Miss Colton were highly confidential and that he was considering transferring some of Mrs. Culver’s accounts to Cooper’s bank.

“Since the death of Miss Colton the maids who witnessed the last codicil, as well as the other servants of Miss Colton, have subsidized, their wages having been continued and paid by Mr. or Mrs. Culver up to and during the trial.

“Both Mr. Culver and Mr. Cooper are now dead, Mr. Culver having died before the trial opened and Mr. Cooper since that time.

“After the transfer of the Clinton avenue home the taxes thereon were paid direct to the city by checks drawn by Mrs. K. Parker Colton and checks were drawn by her to the order of Miss K. Vance Colton for the income on the securities which had been transferred to her. These income checks were placed to the credit of Miss Colton by stamped endorsements. None of these cheeks bears Miss Colton’s signature endorsed thereon. As Culver was in complete charge of the handling of her affairs there is nothing to indicate that she knew how these taxes were paid or whether she paid them or anything about any of these checks. As far as she was concerned, she continued living in her house and spending her income the same as she had always done.

“I do not doubt that Miss Colton, though weakened in body and mind by age and disease, still had the mental capacity to understand the effects of deeds, codicils, transfers of properties and securities, and of gift tax reports of the same, had it been the will of Mr. Culver for her to do so. But the evidence of subsequent events shows that she had no idea she had ever transferred her home or made a codicil ratifying such transfer, or made a gift tax report thereof. Despite these occurrences she informed a tax department representative that she was the owner of the property. Though pestered by real estate men to sell it she never replied that she was not the owner but stated that she refused to sell and to relatives and friends she repeatedly affirmed she would not part with her home, and she manifested an unusual interest in and attachment to it — indeed, her interests were almost confined to it.

“Under these transfers Miss Colton had reduced herself to a condition of dependence, in so far as maintaining her home and scale of living was concerned, yet in the many rather long and detailed recitals of conversations with her by relatives and friends no suggestion of any such condition is revealed by her, and they of course had no suspicion of it.

“Counsel for proponent urge that the court must close its eyes to the evidence connected with the transfers of the home and securities as this court has no jurisdiction to set these transfers aside. If such a proposition were true then indeed would justice be blind in a new sense. These instrumentalities were all channels to the same end, as were the codicils. A trusted servant with power who will abuse his trust by one means will do so by another when occasion urges and opportunity offers.

“The evidence does not furnish even a suggestion of what Culver told Miss Colton on the various occasions when she signed away her securities. The only occasion, as to which we have testimony, is the one when she transferred her home and fortified the transfer with a codicil reciting it. As to this occasion the evidence as a whole shows she did not understand what she had done.

“No adequate motive has been, or in my opinion can be, suggested from the evidence, why Miss K. Vance Colton should transfer her home, and substantially all her property, to Mrs. K. Parker Colton and to Culver, leaving herself dependent upon them to maintain her home and accustomed scale of living. Mrs. Colton was not of Miss Colton’s blood save distantly, she was a widow, old, rich and childless, while Culver was apparently an able and prosperous business man. Was this situation the product of Miss Colton’s mind and the fulfillment of her desires as the proponents contend?

“The absence of any satisfying motive for Miss Colton to put herself in a position of dependence upon others to maintain her home and accustomed scale of living and the presence of the manifest fact that she did not comprehend what she had done, are salient circumstances in the ease. The evidence is purely circumstantial; it must be viewed as a whole; all the transfers, facts and circumstances must be considered. I can reconcile them with but one reasonable hypothesis. That is, that the deed, the two codicils, the transfers, the powers of attorney and the gift tax proceedings were the successful produce and fulfillment of a fraudulent and overreaching scheme of Culver’s to benefit and unjustly enrich his family and latterly himself.

“Por these reasons probate of both codicils will be denied on the ground of fraud and undue influence.”

Messrs. McCarter •& English and Mr. Francis Child, for the caveatrix.

Messrs. Reed <& Reynolds, Mr. Marshall VanWinlcle and Mr. Andrew J. Steelman, for the respondents.

Backes, Vice-Ordinary.

The reaction to this finding of facts is to affirm the conclusions as a whole. But more is needed to condemn the first codicil as the dead Culver’s corrupt impositions upon the old lady’s testamentary disposition than an appraisal of his character as evil and his motives as sinister; more is required than an inference of fraud deduced from a state of facts susceptible as well of an implication of innocence. There is no direct evidence of undue influence and the established circumstances do not warrant the conclusion that this codicil is the product of undue influence.

The testatrix’ eighty-seven years suggests infirmity. But she was tolerably well of body, and age had not observably diminished her mental faculties. Even the caveatrix concedes that she was a woman of strong determination, strong will, well poised and a very remarkable woman for her age up to the time of her last sickness. That began six years after the first codicil and the year following the second. And she was not eccentric, unless it be found in holding on to her coach and dobbins. Some men still wear boots.

Undue influence is imputed to Culver, an accountant, principally because, when he became the friendly adviser and confidant of the testatrix, in 1922, she was possessed of upwards of $750,000, and at her death, seven years later, had only, approximately $100,000; nearly a half million dollars had passed to her sister-in-law six years before, and $125,000 in securities found their way into the hands of Culver after the second codicil. And the court’s concept of Culver, that he was crafty and unscrupulous and false to the testatrix, played no small part. The record, however, fails of proof that the transfers to the sister-in-law were not the voluntary acts of the testatrix, and the bald facts do not reflect that the first codicil was not the spontaneous testamentary design of the deceased. What moved the testatrix to give away the bulk of her estate to her sister-in-law in 1924, is closed to discovery ■ — all the parties are dead. But even surmise, that it was not knowingly and willingly given is not justifiable, for not only did she attest the several transfers, but later verified one of the gifts, $361,000, by a gift tax return to the United States government, paid the tax, $10,000, plus, and made note of the transfer of her home, part of the gift, in the first codicil. The deed to the home and the first codicil were drawn by Mr. Beed, her counsel, counsel of excellent standing at the bar, who, two years before, had drawn her will and who testified she read the documents, apparently, understandingly. As the donee, the sister-in-law was also the residuary beneficiary under the will. The gifts have the appearance of a death tax evasion scheme, gifts in contemplation of death, with a string to them perhaps, for, afterwards, the testatrix occupied the home and had the income from the transferred securities until her death. But whatever the purpose, and though Culver advised, it is sheer conjecture that the deceased, who- unquestionably had intelligence and comprehension, was not fully informed and freely participated, knowing the consequences; and welding these incidents as links in a chain of subtle influence by Culver, culminating in the making of the second codicil five years later, is but added speculation. There is no ground whatever, in fact or in law, for refusing probate to the first codicil. It will be probated.

We pass through the next five years without incident other than Culver was attentive upon the testatrix as her counsel and adviser. In July, 1929, the sister-in-law was critically ill, and the second codicil was executed, in which Culver’s wife, sister of the sister-in-law, was made the alternate residuary beneficiary. Culver called upon Mr. Seed to have him draw the codicil, and finding him on vacation, had another lawyer, Mr. VanWinkle, prepare it, to whom he gave the instructions. The next morning it was executed, published and witnessed, statutorily, under Culver’s supervision, two maids of the testatrix’ household acting as witnesses. They testify to the testatrix’ mental alertness; that Culver and the testatrix were together quite a spell before they were called in, and that she announced to them it was a codicil to her will and that she wished them to witness it. Whether she read the instrument or had it read to her, or that it was misread, is buried. Culver is dead.

We come then to the remaining episode which, it is felt, more than anything else, arouses suspicion. The testatrix was stricken in April, 1930, the year following the execution of the second codicil. By that time Culver had entree to her strong box. In May he had in his possession, endorsed to his order by the testatrix, under date of the previous November, and witnessed by his clerk who says she never saw the testatrix, insurance stocks of the value of upwards of $125,000, which he caused to be transferred to his name on the books of the insurance company. He also had power of attorney of her bank account from which he drew, from time to time, $7,000 and more. Whether he appropriated the cash or spent it for the use of the testatrix during her last illness, we have no means of knowing, nor have we, that the stocks were surreptitiously obtained or given or borrowed. This may be the explanation: Culver gambled heavily in the stock market. In 1929 the devotees of that pastime were in the dreamland of prosperity; stakes ran high, every one was making money —on paper. The crash came in October and stocks tumbled and Culver, like the rest, in all probability, needed funds to bolster his margin accounts. The crash was looked upon as a flurry, not the prelude to the debacle that followed. The downward course was checked and for a while there was a spurt, doubtless due to bolstering the market by those who would not see and kept on playing with every available resource. Was Culver tempted? Did he deceive to get, or did he persuade the testatrix to help in the emergency? The unworthy possession of the securities may account for Culver’s efforts to persuade his co-executor, Cooper, not to take office. Who can tell? Either method was pernicious and equity would relieve on a bill to set aside for fraud, actual or constructive, but that is not the issue and it should not blind us, though it may guide us in our inquiry whether the last codicil expresses what the testatrix intended, expressed months before the occurrence that cast the cloud. That is our whole concern — to uphold the testament if satisfied that it is her will, not the will of another. The related circumstances, procurement of the will by the principal beneficiary added to the fact that he stood in confidential relation to the testatrix, according to the doctrine of Sparks Case, 68 N. J. Eq. 242; 51 Atl. Rep. 118; Cooper’s Will, 75 N. J. Eq. 177; 111 Atl. Rep. 26; followed in Morrisey’s Will, 91 N. J. Eq. 480; 71 Atl. Rep. 676, raise a presumption of undue influence calling upon the beneficiary to dispel it by evidence satisfactorily explaining his conduct. Baron Parke, in Barry v. Butlin, 6 Eng. Eccl. 417, said the drawing of a will by one substantially benefiting by it when coupled with other evidence of fraud or imposition is of very great weight but “in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the court in investigating the case and calling upon it not to grant probate without a full and entire satisfaction that the instrument expresses the real intention of the decedent.” This excerpt quoted by Vice-Chancellor Van Meet in Bennett v. Bennett, 60 N. J. Eq. 439; 26 Atl. Rep. 673, was declared by him to be the established law of the state, and he cited Rusling v. Rusling, 36 N. J. Eq. 603, where our court of errors and appeals said that “other concomitants might readily be suggested which would give to the fact that the favored party had drafted the instrument almost irresistible force as evidence that the alleged testament was not the will of the decedent,” and that the drawing of a will by a favored legatee was a matter which should excite suspicious scrutiny but standing alone the suspicion should be laid aside. In Ward v. Harrison, 97 N. J. Eq. 309; 127 Atl. Rep. 691, the court of errors and appeals reminds us that “the courts of this state have not gone to the extent to hold that one actively participating in the drawing of a will and who is the chief beneficiary thereunder is presumptively chargeable with undue influence. Such a circumstance may or may not be a factor to establish imposition upon the testator, for that is what is meant by the charge of undue influence, and hence, whether or not there was imposition, must be disclosed by other circumstances and conditions than the mere drafting of a will and being a beneficiary thereunder.” And no presumption of undue influence arises from the mere fact that the chief beneficiary stands in a confidential relation to the testator. Wheeler v. Whipple, 44 N. J. Eq. 141; 14 Atl. Rep. 276. A contrary expression in the opinion of this court prompted the court of errors and appeals in In re Tunison’s Will, 93 Atl. Rep. 1087, to remark, “we are content to adopt that opinion, with one exception, viz., that, although the testimony in the cause forces the conclusion that Clarence was the confidential agent and adviser of his mother, that fact did not cast upon him the burden of proving that there was no undue influence exerted by him.” 'Where, however, the beneficiary is confidential adviser to the decedent and also draws or procures the drawing of his will, the combined circumstances raise a presumption of undue influence calling for a complete vindication of the beneficiary’s conduct. The rule that the coupled circumstances give rise to a presumption of undue influence, is essentially a rule of evidence for the better ascertainment of the truth in the satisfactory determination of the ultimate resolution “that the instrument expresses the real intention of the decedent” and its exercise finds expression in all the cases presenting the dual status of beneficiaries. In Bennett v. Bennett, supra, the chief beneficiary, the attorney and confidant of the testator, drew the will. Vice-Chancellor Van Meet admitted the will to probate upon being satisfied from all the proof in the case that it expressed the untrammeled wishes of the maker. In Waddingion v. Buzby, 15 N. J. Eq. 173, the will was drawn by the husband of the residuary beneficiary who, for a short time, was also the business agent and adviser of the aged, blind and nearly helpless testatrix. The court of errors and appeals had his explanation and was satisfied and held that his conduct, his character and relationship to her did not warrant the charges of fraudulent contrivance and undue influence without more direct and certain testimony. In Cooper's Will, supra, where the counsel and a beneficiary of the testatrix drew the will, satisfying proof moved the court to grant probate. In In re Gaddis, 96 N. J. Eq. 668; 126 Atl. Rep. 287, the court of errors and appeals held that mistress-beneficiary did not imply that she occupied the dominant position, shifting the burden upon her to prove the absence of undue influence, but the case is a recognition of: the doctrine that having the opportunity to impose coupled with a procurement by her of the will, an explanation would be the order.

Here, though, we are confronted with death foreclosing Culver’s version of the making of the codicil, nevertheless, we must look to the proofs in the case to determine, if we can, that the instrument was of the free agency of the deceased. In the maze, born of incrimination so common to struggles over the leavings of the dead, we must be ever mindful that our duty to the departed is to maintain their solemnly authenticated testament, and not suffer it to be defeated unless vitiated by the superimposed will of another. There is, of course, no evidence that Culver was not obeying the instructions of the testatrix in effecting the change of residuary beneficiary; and that the change was covertly accomplished, finds some discredit in his going .to Mr. Reed, who had drawn the will and the first codicil, to prepare the second codicil. Nor is there any evidence of pressure or even of persuasion. During the five years, from the time of the gifts to the sister-in-law to the making of the second codicil, there is nothing in proof other than of friendly intercourse. There was no general dependency; that testatrix was mistress of her own household. Culver was a daily visitor, and she consulted with him' and he advised her and looked after her financial affairs. She had confidence in him and was grateful for his attentions, often expressed.

Testamentary inclinations of many years to leave the estate to strangers in blood is displayed in successive wills. The substitution of Culver’s wife in the place of the dying sister-in-law was not out of harmony with the testatrix’ clearly indicated plan not to bestow upon the caveatrix and those of her class of relations, any part of her residuary estate. In previous wills she consistently bequeathed to them small pecuniary legacies, the residue going by successive wills to her sister, her brother, the Home for Aged Women, and lastly to the sister-in-law, by the will admitted to probate. To finally give it to the latter’s sister marks no departure from her predisposition.

But it is the black page that shakes to the foundation whatever faith would otherwise be entertained in the codicil as the free expression of the testatrix’ intentions. Within four months after the codicil, as we have seen, Culver had her stocks to which he had his clerk forge her name as witness to the testatrix’ signature. Whether he deceived the old lady into signing, or she gave or lent them is material only in degree; the consequences are the same. If he deceived her he was a rogue and the codicil did not escape his propensity. If he borrowed the stocks it was a wicked imposition and in its magnitude, a small fortune given or lent for the asking, finds reasonable explanation only in a confidence incapable of resisting an all-powerful influence. If this old lady of determination, strong of will and well poised could be induced to part with this huge sum, it gives a fair measure of Culver’s extraordinary persuasive powers at the preparation and execution of the codicil, superintended by him, and of which so little is known except formality and self-advantage.

I am not satisfied that the codicil expresses the real intention of the testatrix. The decree of the orphans court denying probate will be affirmed.


author: Brown, C. C. J.

text:
    HAROLD A. PREISS, PLAINTIFF, v. PUBLIC SERVICE COORDINATED TRANSPORT, EARL TITUS AND CHARLES SCHOTLAND, DEFENDANTS.
    Decided June 7, 1933.
    Por the plaintiff, Armstrong & Mullen.

    Por the defendant Public Service Co-ordinated Transport, Henry H. Fryling.

    Por the defendant Earl Titus, Carl T. Freggins.

   Brown, C. C. J.

The plaintiff while a passenger in the automobile of the defendant Schotland, sustained personal injuries and obtained a verdict against the three defendants in the sum of $5,000. The defendant Public Service Coordinated Transport obtained a rule to show cause why the verdict should not be set aside as being contrary to the weight of the evidence. The testimony of the plaintiff Preiss is very limited as to liability and is to the effect that he was an invitee in Schotland’s automobile which is not contradicted. James Bianciella and Michael Leadiere, witnesses called on behalf of the plaintiff testified that they were within a distance of one hundred feet of the alleged collision; that they heard the horn blown and turned and saw the Pord automobile going in the direction of Journal Square on the Hudson boulevard and that “the bus came shooting out of Seaview avenue, at a pretty good rate of speed, shooting right out of Seaview avenue.” Bianciella further stated i£he never gave the Ford a chance to get across or anything.” The bus kept on going about forty or fifty feet up Seaview avenue. These witnesses stated there was no horn blown except from the Ford automobile. The defendant Schotland stated the bus did not make any stop any place near the intersection. He testified the bus came shooting out with the result that the bus and the Ford reached the intersection at the same time and that he, in an effort to avoid a collision turned slightly to the left and crashed into the right rear of the bus. The defendant Titus who testified as a witness in behalf of the transport company stated that he had fourteen years’ experience as a driver; that before crossing the boulevard he made a dead stop, looked north and south, saw the Ford coupe two blocks away; blew his horn and started to cross the boulevard; that he reached the Parkway when the Ford was one block away and at that time the bus was traveling at the rate of ten miles per hour. He again sounded his horn and proceeded across the boulevard and when he was near the easterly curb of the boulevard he again observed the Ford which was about one hundred feet away at which time he tried to speed up the bus; that he proceeded a distance of ten feet after the accident. He testified that he made no observations to the right as he approached the boulevard; that his observation was made after he stopped the bus to ascertain whether or not a car was coming.

George Drake, a witness called on behalf of the defendant transport company as well as Titus, testified that he was a passenger on the bus and he corroborated Titus in his testi-. mony about stopping and looking before entering on the boulevard. He also corroborates Titus in the distance in which the Ford car was proceeding on Seaview avenue at the time the stop was made. lie testified that the driver of the bus blew his horn all the way while crossing the boulevard.

The questions of the plaintiff’s contributory negligence and the negligence of the defendants were questions for the jury and it is the law of the state that a jury’s verdict should never bo set aside unless the verdict is clearly against the weight of the evidence. For the court to determine that the verdict in this ease is contrary to the weight of evidence it would be necessary to determine that the plaintiff was eontribntorily negligent and that the defendants were not guilty of negligence which was the proximate and natural cause of the plaintiff’s injuries. As to the question of contributory negligence, considering the relationship of the plaintiff to Schotland as being an invitee, on the evidence in the case the jury were fully justified in deciding that the plaintiff was not guilty of contributory negligence. In order for the court to determine that according to the clear weight of evidence the defendants transport company and Titus were not guilty of negligence the court would necessarily be driven to the conclusion that the testimony of the plaintiff and the defendant Schotland and particularly the three young men who testified on behalf of the plaintiff were not telling the truth. Hothing appears in the case that would justify the court in coming to this conclusion. The credibility of the witnesses as well as the reasonable inferences to be drawn from the testimony were matters for the jury’s determination. It is within the province of the jury to draw inferences from the testimony and those conclusions should not be set aside by a trial judge unless it clearly appears that the inferences could not reasonably be drawn from the testimony adduced. Mere difference of opinion as to the effect of the weight of evidence is not sufficient to justify the court in setting aside the verdict. The court determines that the verdict of the jury is not contrary to the weight of evidence and not the result of passion, prejudice or mistake. The rule to show cause will be discharged.


text:
    DOROTHY DORFMAN, SUBSTITUTED FOR LOUIS DORFMAN, PLAINTIFF-RESPONDENT, v. MT. SINAI BUILDING AND LOAN ASSOCIATION, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT.
    Submitted October term, 1932
    Decided June 10, 1933.
    Before Justices Tbenchakd, Case and Beogan.
    For the appellant, Precher & Precher (Michael S. Precher, of counsel).
    For the respondent, Michael Bohol.

   Per Curiam.

This ease presents an appeal by the defendant-appellant from a judgment recovered by the plaintiff below in the sum of $140.

The plaintiff, a shareholder in the defendant building and loan association, sued to recover this amount of $140 which she alleges was paid by her over and above the amount due to the building and loan association on a mortgage loan. It is not disputed that this amount was paid by the plaintiff but the defendant says this sum was applied by it to unpaid insurance premiums covering the plaintiff’s property. On the other hand, the husband of the plaintiff swears that he paid the insurance premiums, amounting to $140, to the president of the building and loan association which, of course, presents a fact issue.

The state of the case, agreed upon by counsel for the respective parties, comes before us in a very unsatisfactory condition. The parties, for instance, are unable to agree as to whether or not a certain question was asked (which may have been important in this controversy) and the notes of the trial judge do not disclose whether or not the question was asked. It does appear, however, that the defendant moved for a non-suit, which was denied, and that the court let the case go to the jury as to whether or not the president of the defendant building and loan association acted as the plaintiff’s agent o-r the defendant’s agent in applying plaintiff’s moneys- to the payment of insurance premium. The court’s ruling on these questions was in no- way excepted to and these questions therefore are not available to the appellant for the purposes of an appeal. Klein v. Shryer, 106 N. J. L. 433; 150 Atl. Rep. 321.

The appeal is therefore dismissed, with costs.


text:
    ALBERT BOROK, TRADING AS BOROK FURNITURE AND RADIO COMPANY, PLAINTIFF-APPELLANT, v. WILLIAM P. COLFER, DEFENDANT-RESPONDENT.
    Submitted October 14, 1932
    Decided June 10, 1933.
    Before Justices Trenchard, Case and Brogan.
    For the appellant, Michael G. Alenick.

    For the respondent, J. Arthur Quinn (Thomas F. Guthrie, of counsel).
   Per Curiam.

The instant case presents for review a judgment recovered on counter-claim against the plaintiff by the defendant.

Plaintiff below sues on a note, dated January 5th, 1932, in the sum of $250 with interest. Defendant counter-claims, saying that on April 29th, 1928, he received a loan of $300 from the plaintiff; that the plaintiff exacted usurious interest at the rate of thirty-six per cent, a year in monthly installments and that at the time of this suit there had actually been repaid on this original obligation of $300 the sum of $354.50, and claims because of this usurious exaction, to be entitled to an affirmative verdict of $54.50 against the plaintiff.

At the trial the plaintiff proved the note, dated January 5th, 1932, for $250 and rested.

The defense produced evidence sufficient to support a finding by the jury that on September 8th, 1931, defendant signed a note in blank for the plaintiff, which was to be for a sum (later to be ascertained by the plaintiff from his books of account) which was then due and owing on the original sum of $300 loaned April 28th, 1928. At the time of the original loan, back in 1928, defendant claimed that the plaintiff actually gave him only $291, having deducted $9 for one month’s interest from April 28th to May 28th, 1928. Defendant further presented evidence from which the jury might conclude that a sum total of $354.50 was paid, which evidence was supported by very many exhibits, receipts for interest payments in various sums signed by the plaintiff. Plaintiff resisted this proof by testimony indicating that at the end of December, 1931, $250 in cash was loaned to the defendant and the note in suit represents this sum. No books of account, however, were produced to substantiate this. Plaintiff further testified that the receipts put into the case as defendant’s exhibits represented installment payments on furniture which had been purchased from time to time by the defendant and had nothing to do with his loan obligation. No evidence was produced to corroborate these installment plan sales from plaintiff’s books or otherwise.

These facts were submitted by the court to the jury and a verdict was returned in favor of the defendant on the counter-claim for the sum of $54.50 as claimed.

Plaintiff appeals because the court denied plaintiff’s motion to dismiss the counter-claim on the ground that it did not properly plead usury. There is no merit in the contention.

The case was tried on the facts; the defense of usury was set up in the counter-claim with enough certainty to apprise the plaintiff as to what the claim of the defendant was.

The chief point in the appellant’s case is that the defendant’s counter-claim alleging usury should have been dismissed upon the ground that the defense of usury was not sufficiently pleaded. We think, however, that it was sufficiently pleaded.

The counter-claim by its first paragraph sets out an agreement for the lending of money; by the second paragraph a usurious rate of interest is pleaded while the third and fourth paragraphs set out the payments made under the usurious agreement and a demand by the defendant below for the excess paid over and above the lawful rate of interest. This satisfies the requirements by way of pleading of the defense of usury. Holdman v. Tansey, 8 N. J. Mis. R. 73; 148 Atl. Rep. 195; Dunlap v. Chenoweth, 88 N. J. Eq. 496; 104 Atl. Rep. 822, which sets forth the pleading requirements on a defense of usury in the court of equity.

We find no substantial 'merit in the point that the defense of usury was not properly pleaded.

The judgment will be affirmed, with costs.


text:
    ROBERT BROADMAN, PLAINTIFF-RESPONDENT, v. LEROY DYAL, DEFENDANT-APPELLANT.
    Submitted October 14, 1932
    Decided June 10, 1933.

      Before Justices Trenchard, Case and Brogan.
    For the appellant, James P. Mylod.

    For the respondent, Henn & Burr.

   Per Curiam.

This case presents an appeal from two judgments entered on August 18th, 1932, in the District Court of the First Judicial District of Essex county in the sums of $450 and $150, respectively. The judgments recovered represent rents claimed to have been due and owing by the defendant. The first judgment represents three months’ rent for the months of February, March and April, 1932, and the second judgment represents rent claimed for May, 1932.

The plaintiff, Broadman, had been the owner of the property occupied by the defendant, as tenant, but the record discloses that he sold it on March 1st, 1932, to a Mr. Cohen. The defendant had occupied the premises and had not paid his rent. Unquestionably, the plaintiff was entitled to rent for the month of February in the sum of $150. Now Broad-man further claims to have been entitled to rent subsequent to March 1st, the date of the sale, on the ground, first, that he was a second mortgagee in possession and had the right to collect rents and, secondly, that he had an assignment of rents from his vendee, Cohen. There is no proof in the record that he had such an assignment.

The tenant, Dyal, who is the appellant here, denies any liability to Broadman for rent on the ground that the property while in the ownership of Broadman was encumbered by a first mortgage and that on August 26th, 1931, he had been served with a notice by the first mortgagee that there had been a default in the covenant of the bond accompanying said first mortgage and that said mortgagee elected, under the mortgage agreement, to take possession and collect the rents from the property. This first mortgage had been owned by the Franklin Mortgage and Title Guaranty Company and the witness, Vieser, secretary of that mortgage company, testified that the mortgage in question had been assigned to the Prudential Insurance Company in March, 1931, and that the Franklin Mortgage and Title Guaranty Company had re-purchased the same from the Prudential Insurance Company on October '9th, 1931. It seems clear, therefore, that the appellant’s point in resisting the plaintiff’s claim for rent on the ground 'of notice and demand for rent by the first mortgagee is ineffectual as against the plaintiff’s right inasmuch as the testimony of Vieser, on cross-examination, indisputably shows that his company at the time of the alleged notice, namely, August '26th, 1931, did not own the mortgage in question and was in no position to' demand rents of the property encumbered.

It also appears in the state of the case that this plaintiff had sued this same defendant for rent for the months of September, October, November, December and January preceding and had in each case obtained judgment against the defendant which was satisfied. Broadman’s right to recover for the month of February appears indisputable. In re Walsh’s Estate, 80 N. J. Eq. 565 (at ,p. 569); 74 Atl. Rep. 563.

As to the months of March, April and May, plaintiff, Broad-man, had no right to the rents for these months unless evidence was offered tending to prove that he held an assignment from his vendee or that he exercised his prerogative as mortgagee as to his second mortgage and was in a legal position to successfully claim the income from the property.

As to the first proposition, there is no testimony whatever that the rents had been assigned to him subsequent to March 1st. There was a discussion between the court and counsel wherein mention was made of the fact that at a previous trial between the same parties in a suit for rent an “assignment” was admitted into evidence but it is not in this case. The •discussion between .court and counsel does not constitute legal ■evidence and in this case there is not an iota of testimony from any witness concerning an asignment of rents applicable •or material to this controversy. Nor does the second proposition of the plaintiff, Broadman, help him to establish his ■claim. Since he sold the property to Cohen on March 1st, it is difficult to see how, assuming he took back a purchase-money second mortgage, the mortgage could be in default immediately. It is true that he testified that on March 1st, the date of the sale, his second mortgage was in default (just how it was in default doesn’t appear) but there isn’t a scintilla of evidence that as such second mortgagee he took possession at that time and asserted the right to collect rents. It is true of course that a tenant cannot dispute the title of the person under whom he entered into possession of the premises except for the purpose of showing the termination of his landlord’s interest and in this case it was not at all ■disputed that the landlord, Broadman, had parted with his title to Cohen on March 1st.

The judgments, therefore, will be reversed, and a venire de novo awarded, costs to abide the event.