text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MORRIS HOCHBERG, PETITIONER, v. BOROUGH OF BELMAR, RESPONDENT. ANNIE HOCHBERG, PETITIONER, v. BOROUGH OF BELMAR, RESPONDENT.
    Decided October 18, 1944.
    For the petitioner, Abraham Klitzman.

    For the respondent, Edwin Joseph O'Brien.

   Petitioner in the original petition having died on December 22d, 1942, a petition was filed by the widow, through the same attorney, Abraham Klitzman, Esquire, with the notation in answer to question 34 of the petition “there is presently pending in this Bureau a formal petition for compensation filed on September 19th, 1942, to which an answer has been filed and which case is presently pending with this department. Since the filing of this petition the petitioner has died and accordingly the within petition is being filed as an amended petition.” In this “amended petition” there is the allegation “decedent was prostrated by sunstroke and as a result aggravated an existing heart condition.”

The matter came on for a hearing before me, a Deputy Commissioner of the Workmen’s Compensation Bureau, Department of Labor of New Jersey, at the Asbnry Park District Court room, Electric Building, on a number of occasions and was finally tried and disposed of on the following dates: July 7th, 1944, August 14th, 1944, and September 8th, 1944, the attorneys representing the petitioner and respondent being present and trying the matter. The two petitions were tried together by consent.

Petitioner produced one William Martin, Jr., meteorologist, in charge of the Long Branch station. He testified that the average mean temperature for Sunday, July 19th, 1942, the date on which it is alleged the “sunstroke” took place, was 82 degrees; humidity ranging from 69 per cent, at ten A. m. to 86- per cent, at nine p. M.; that it was a clear sunshiny day, southerly wind with a maximum velocity of thirteen miles per hour.

Dr. Joseph H. Bryan was the next witness produced by the petitioner. He said he had been practicing for over forty years in general practice; that he had known the decedent for probably twenty years and that he was the physician for the widow for several years. He stated he never made a very careful examination of decedent but knew that he had a weak heart. In fact his heart condition had been such for many years, that he had to have positions where he did not have any exercise. “I recommended that he did not get any position which required very much physical effort on his part.” This doctor stated that he had been in this condition for at least ten years prior' to 1942 and that decedent was suffering from a myocarditis.

William J. Briden was the next witness produced on behalf of the petitioner and he testified that he was a sergeant of police, in charge of the gatemen of the Borough of Belmar. He stated that on July 19th, which was a hot day, he saw the decedent at about five minutes after nine a. m. right at the decedent’s gate and saw him several times during the day, the last time at about quarter after five. Decedent was carrying out his assigned duty of collecting the tickets at the gate. Decedent did not return the next morning to work so the witness went down to his house to see him and found him in bed. Decedent never returned to work after that. The witness stated lie was told by tbe family that decedent had pneumonia, and he was never told by the family that decedent had suffered from the heat, or was ill because of the heat, or had suffered any accident.

On cross-examination this witness admitted that the decedent’s only duties were to collect the tickets and that he could sit down or stand up, as he chose, that he had a sun helmet on and an umbrella. He stated that decedent never complained to him about suffering from the heat on this day or about having sustained any accident. He further testified there was no exertion to this job which decedent did.

Dr. Adam Downey Osborn was the next witness produced •on behalf of the petitioner and testified that he has been practicing since 1936 in general practice with a leaning toward allergy. He stated he' knew the decedent and was called in to see the decedent’s wife sometime shortly after .Dr. Bernstein left for service in the Hnited States Army, sometime in June, 1942. This witness did not treat the decedent until July 19th, 1942, which he said was a very hot day. Decedent was complaining of shortness of breath, weakness, and pains in his chest, the pain was. all over his -chest and he was in a state of collapse, cold sweat, temperature of 103.4 and pulse around 120 with a respiration at 30, and a blood pressure of 112/90, and his chest was full of rales. The doctor first saw him in the evening of July 19th, 1942, and he testified that he was a very sick man. He prescribed codein and an ice cap'. When he saw him again, around eleven o’clock that evening, his temperature was down •to 102 but his condition was about the same, his pulse was 100, his respiration 23 and 24. The doctor felt that he had .a lobar pneumonia and prescribed sulfa thysol. He went to the hospital Tuesday. X-rays were taken on the 25th of ■ July and this doctor sent him to the hospital with a diagnosis ■ of lobar pneumonia. This witness saw the decedent until he died, on December 21st, at which time he died of a • coronary occlusion in the opinion of this witness.

This witness’ opinion was that the decedent "probably started off with heat exhaustion.” This witness admitted that Ihe did not know anything about the fact that decedent had difficulty the evening before in the abdominal and pectoral region and had started for work the morning of the 19th of July feeling weak and with the belief that he had indigestion.

Gertrude Briers was the next witness produced by the petitioner, and testified that she was a police woman in the Borough of Belmar and that she saw the decedent on the 19th of July, 1943, that his face was flushed at one time. She said he never complained to her about the heat of the day or of being sick because of the heat. He did complain he did not feel well, as he had done on several occasions. There is no exertion to his work, she admitted.

Pauline Buth Asch, the decedent’s daughter, was the next witness produced on behalf of the petitioner and she testified to the apparent health of her father before July 19th, 1943, and that she saw him on that morning dressed to go to his job when he brought her the rolls and bread, and that he was in a hurry, and he said “he was going to work; it is late.” She saw him about seven p. m. on a couch in his house and he appeared red and hot and was perspiring. He had a hard time getting his breath and he was rubbing his chest. She followed the course of his illness from that time on up until he died. She said she did not go personally to the borough and tell them about her father’s alleged heatstroke or sunstroke and did not know anything about any form being sent from the insurance company to her mother.

Dr. Julius Bernstein was the next witness produced on behalf of the petitioner, and testified that he has been practicing since 1937 and specializing in internal medicine.

While he testified he thought there was a causal relationship, based on the hypothetical question, which hypothetical question contained the allegation that the decedent left the house that morning feeling perfectly well, nothing was said about his so-called “indigestion” the night before and the fact that he left home that morning still complaining of discomfort and feeling weak. This doctor admitted on cross-examination that with the history as related by the widow it was entirely possible that decedent had the beginning of this coronary occlusion the night before, to wit, July 18th. He also admitted that with the weather as it was he might have suffered the occlusion on his own porch or in his own home at any time during that warm period. He admitted that a man in decedent’s condition, coronary occlusion could have occurred at any time or in any place.

Dr. Louis D. Allbright was the next witness produced by the petitioner, and testified he had been practicing as a specialist in cardiology and is a registered internist. He saw the decedent on July 31st, 1943, for the first time. Decedent was extremely short of breath, was unable to lie flat in bed, his lips were blue, chest filled with loose rales; the heart sounds were of very poor quality, the pulse rate rapid, blood pressure was around 130 systolic, neither significantly raised nor lowered. “There was some question in our minds when I first saw him whether he might have had pneumonia or whether it was entirely his heart.”

An electrocardiogram taken several days later showed that he had a coronary occlusion. In the opinion of this doctor excessive heat is a contributing factor in producing a coronary occlusion. He based his opinion, in answer to the hypothetical' question, on the statement that the decedent left for work that morning feeling perfectly well, and without any mention of symptoms of discomfort he had the night before and on the morning in question. He did admit, however, that the “onset occurred when the man had his first precordial pain.” He believed this decedent probably had some degree of heatstroke plus coronary occlusion. His differentiation between heatstroke and heat exhaustion was that in the latter condition the complaints are in a more chronic form, although of the same nature! He admitted that the coronary occlusion might have been due to the natural progress of the disease. He admitted that it is unusual to have a high temperature of 103 plus on the same day that the occlusion occurs though it is sometimes seen. "Usually, he admitted, the temperature does not rise to that point until from twenty-four to seventy-two hours after the occlusion tabes place. Of course this witness did not see the decedent until over forty-eight hours after the attack from which decedent suffered. The temperature of 103 plus was taken approximately 34 hours afteT the onset of the precordial pain on the evening of July 18th, 1944.

The testimony of the widow, taken de lene esse was offered in evidence by the petitioner’s attorney and entered in evidence. She testified that on the evening of July 19th she saw decedent coming home “walking slowly.” When he got into the house he fell and she helped him to a couch, she stated decedent was hot and his body felt hot. She testified that the night before decedent was not feeling well, that he was feeling tired, suffering with what she thought was indigestion and when he went to work the next day he felt weak. She testified that the only work that decedent did other than the summer job of collecting tickets, was a watchman’s job at Braid Company. On the evening of the 18th of July decedent complained of feeling tired and he complained of trouble or discomfort in the upper part of the chest. -After eating his dinner on the evening of July 18th, “he complained of feeling tired and of a pain in his chest.” In reference to the testimony of this witness the attorney for the respondent moved to have the hearsay and occlusion testimony stricken from the record as though motion had been renewed.

At this point the petitioner rested.

The respondent produced as its first witness Dr. Jerome Kaufman, whose qualifications as a cardiologist were stated for the record. He testified there was no causal relationship between the employment or anything in connection with the employment and his illness on July 19th, 1942, followed by his death in December, 1942. He stated that undoubtedly the coronary occlusion started the night of July 18th, when he had precordial pains and it was a continuous process, not in any way affected by his employment. He stated that the temperature of 103.4 was due to the myocardial infarction (destruction of heart tissue) which appeared, as it almost invariably does, from twenty-four to seventy-two hours after the onset of the occlusion. There was no doubt in his mind that the man’s illness and death followed the classical or typical picture of a coronary occlusion progressing naturally from conditions existing in this decedent’s heart and blood vessels on and prior to July 19th. He further stated there was nothing in the evidence to show that the petitioner had suffered with either heat exhaustion, heatstroke or sunstroke whatsoever, hut that the condition from which he suffered was undoubtedly coronary occlusion with resulting infarction of the tissues due to the shutting off of the blood supply to the heart.

Dr. George Olcott was the next witness produced on behalf of the respondent, and he testified that there was no relationship whatsoever between the decedent’s employment and his illness on July 19th followed by his death in December, 1942. He testified in a similar vein to Dr. Kaufman, stating that there was no evidence that decedent had suffered from either heat exhaustion or a sunstroke. He, like Dr. Kaufman, testified that if the decedent had suffered a heat or sunstroke he would have collapsed on the job and would have had to be carried home. He further stated that the picture of decedent was the typical or classical picture of a coronary occlusion with resulting infarction, progressing normally to its final termination, not affected in anyway by either heat or employment.

At this point the respondent rested.

After listening to all the testimony and considering all the evidence in the case, I am of the opinion and I do so find that the petitioner has failed to sustain the burden of proving the allegations in his petitions that decedent was “taken suddenly ill with a sunstroke,” or that decedent “was prostrated by sunstroke.” There is no. evidence that the decedent ■ complained to anyone on the job of suffering from the sun or from excessive heat. He apparently continued doing his work which did not require any significant exertion or effort, and when he was finished he walked home. There was no evidence of collapse on the job, as would have occurred if he suffered from á sunstroke or heatstroke, according to the weight of -the credible evidence in the case.

If we are to consider heat exhaustion there is nothing in the case to show that the decedent was exposed to such heat exhaustion on his job any more than in his home or on his way to or from his home.

If we are to. believe the testimony of the petitioner the weather had been hot for a week or so prior to the 19th and the heat continued for twenty-four hours a day. On his job decedent was furnished with a chair at the gate in which to sit and he wore a sun helmet and had an umbrella at the gate to shield him from the sun. Was he exposed to any greater, if as great, hazard or risk than the rest of the community? Wasn’t he, in fact, subject to less of a hazard because of his exposure to the breezes and his protection from the sun by the umbrella and sun helmet, as well as the accessibility of the chair provided for his use? Wherein was the heat, if we are to consider heat exhaustion, greater where he worked than in his home? There was no prostration on the job, no claim of being affected by the heat on the job; decedent said nothing to any of the witnesses on the job who were produced by the petitioner as witnesses, about suffering from the heat or the sun and admittedly the picture of the decedent’s condition is typical of what occurs when a man with a diseased heart and coronary vessels meets with an occlusion which invariably occurs sooner or later with the normal and natural progress of the disease. Every item presented in the petitioner’s ease is in conformity with the natural progress of the coronary occlusion and resulting infarction and in no manner does it portray any occurrence of a heat or sunstroke. Furthermore, even by the admission of the petitioner’s experts, the pain in the chest and the weakness and discomfort suffered by the decedent at home on the evening of July 18th were the onset or prodromal symptoms of precordial pain signifying the beginning of the end in the long chain of cardial vascular degeneration resulting in the closing off of the vessels nourishing the heart, the massive impairment of the nourishment to the heart and the resulting death of tissue, or infarction, which is the inevitable result.

In this posture of affairs we have the onset of the precordial pain, or prodromal symptoms, which occurred in the Schlegel case (Schlegel v. H. Baron, 130 N. J. L. 611; 34 Atl. Rep. (2d) 332) prior to the arrival of the decedent at his place of employment, and we are not allowed to “speculate” money out of the respondent’s pocket, as was said in the Kramerman case (Kramerman v. Simon, 131 N. J. L. 250; 36 Atl. Rep. (2d) 132).

The petitioner having failed to prove his allegations by a preponderance of evidence, as required, the prayers of both petitioners are denied and the petition filed by the decedent, and the petition filed by the widow, are hereby dismissed and judgment final entered in favor of the respondent.

Hakry S. Medieets,

Deputy Commissioner.


source: Caselaw Access Project

author: William A. Smith, C. C. J.

license: Public Domain

text:
    NATIONAL FIRE AND MARINE INSURANCE COMPANY, PLAINTIFF, v. MAURICE YUDENFRIEND AND LEONARD H. SAVADOVE, DEFENDANTS.
    -Decided November 6, 1944.
    For the plaintiff, Harold D. Feuerstein.
    For the defendants, Leonard H. Savadove.

   William A. Smith, C. C. J.

This case was tried before me without a jury by consent on October 18th, 1944. The action is brought against the two defendants on a written agreement of guarantee.

The main defense set up by the defendants was that of no consideration for the guarantee, which was a guarantee of a past indebtedness.

It is my conclusion that there was consideration for this guarantee. I find that there was an extension of time given the principal debtor and the agency of the principal debtor was extended as to time. These are sufficient considerations for the guarantee.

The other defense was that the plaintiff was to take proceedings against the principal debtor before calling upon the guarantors.

This defense was not sustained. I find that the plaintiff is entitled to judgment for a balance of $900 and interest.


author: Hartshorne, C. P. J.

text:
    Essex County Court of Common Pleas.
    IN THE MATTER OF THE APPLICATION OF LOVE FAITH FOR A COURT ORDER PERMITTING THE APPLICANT' TO VOTE IN THE GENERAL ELECTION.
    Decided November 3, 1944.

      For the Superintendent of Elections and. Commissioner of Registration, Lester E. Mohr.

    For the applicant, Isserman, Isserman & Kapelsohn (Morris Isserman).
   Hartshorne, C. P. J.

The applicant, “Love Eaith,” applies to the court “for the purpose of obtaining an order entitling him (her) to vote,” R. S. 19:32-18; N. J. S. A. 19:32-18, in view of the fact that the superintendent has issued an order to the District Board to refuse to allow her to vote. R. S. 19:32-15; N. J. S. A. 19:32-15. This section provides that “the superintendent shall investigate all registry lists prior to the holding of any election.” Having-done so, he noted that the appellant had registered in the name of “Love Eaith” and inquired from her as to her ordinary or previous name. This she refused to disclose. He thereupon issued his above order on the ground that she was “not entitled to vote” at such election, in that she was not properly registered. It is understood that the above-situation is typical of a substantial number of similar instances.

The question thus is whether, when a person registers-under a certain name which is, admittedly, not his previous name, and which gives no inkling as to his previous identity and, in addition, refuses to reveal his previous name, he is properly registered. This requires the consideration of the terms of the statute as to the registration of voters and their purpose.

The purpose of requiring voters to register previously is clearly to prevent fraud, (1) by ascertaining before the vote is east whether or not such person possesses the qualifications to vote and (2) by preventing impersonation thereafter at the polls. These voting qualifications cover not only citizenship, age and residence, but, among other things, freedom from conviction of certain crimes. New Jersey Constitution, article 2; N. J. S. A. Art. 2. Hence the future voter must, in registering, not only state in writing his citizenship and the fact that he is of proper age and residence, but also give his “full name,” R. S. 19:31-3; N. J. S. A. 19:31-3, in 'order that his identity, past and present, may be ascertained.

If the name as above given is that which such individual has always borne, the superintendent of elections can thus readily check each of such registrant’s voting qualifications including, for instance, his freedom from criminal conviction. But if the name given has been assumed by the registrant, and there is no statement added thereto that such person was “formerly known as-,” neither the registrant’s freedom from criminal conviction during the years preceding his assumption of such new name, nor his citizenship, can be readily ascertained. A registration solely under an assumel name, particularly one which gives no inkling as to the previous birth name, thus flies in the face of the major purpose of the Election Act. And this is quite regardless of the refusal of the applicant in fact to disclose such prior birth name.

A consideration of the specific words of the Act, as distinguished from its general purpose, reaches the same result. By the very words of the act “the full name” must include the “Christian name,” R. S. 19:31-3; N. J. S. A. 19:31-3, and the Christian name is “the baptismal name as distinct from the surname.” Bouvier Law Dictionary. Moreover, this “full name” must be the “true name,” R. S. 19:34-1; N. J. S. A. 19 :34-1, in order to preserve the purity of the election itself regardless of the criminal responsibility of the individual.

It has, of course, been stated I;hat “the Christian name is that which is given one after his birth, or at baptism, or is afterward assumed by him in addition to his family name.” Schaffer v. Levenson Co., 82 N. J. L. 61; 81 Atl. Rep. 434. But note that this assumed name is to be “in addition to his family name,” and that the court states the general rule as follows:

“By the- common law, since the time of the Norman conquest, a legal name has consisted of one Christian or given name, and of one surname, patronymic,- or family name. The surname, or family name, of a person is that which is derived from the common name of his parents, or is borne by him in common with other members of his family.”

Clearly, the registrant in the case at bar has given no surname whatever.

True, under certain circumstances one may lawfully change his name without resort to any legal proceedings, and the name thus assumed will constitute his legal name just as much as if he had borne it from birth. 45 C. J. 381, Names, § 15. But these circumstances apply only where such change of name “is not done for a fraudulent purpose, and in the absence of statutory restriction.” Hid. Of course, the superintendent of elections in the ease at bar does not expressly charge that there is a fraudulent purpose, for the very good reason that the refusal of the applicant may well have prevented him from ascertaining, whether or not such fraudulent purpose exists. But such a concealment obviously contravenes the statutory purpose to prevent disqualified persons from voting. Moreover, it is equally clear that the name by which one is commonly known is not for that reason alone one’s “true name.” 45 C. J., Names, § 14. Clearly, such common use of an assumed name will not suffice to make it the “true name,” required to be stated by a statute, whose major purpose is to determine the past, as well as the present, identity of the individual.

Of course, the mere fact that the individual may desire to forget his past name, and to adopt a new name for allegedly religious reasons, is beside the point In the first place, the right to vote is not a religious right, but a purely civil one, granted to all qualified persons regardless of religion.

There is no more reason why the individual, who now chooses to be known among her associates by the name of “Love Faith,” should fail to disclose her past identity by registering under her previous ordinary name, than should the members of Boman Catholic sisterhoods, all of whom carry out their civil voting privileges under their ordinary civil names.

Finally, the state does not here seek to interfere with applicant’s use of the name “Love Faith.” All it seeks is to have the applicant disclose her past name on the record for the above proper statutory purpose. Accordingly, since the applicant originally presented herself in due time to the registration authorities, she will now be permitted to re-register within two days from the filing of this opinion and order, but only by signing her previous true name, or adding same, as such previous name, to her present registration. Otherwise, the application is denied.


author: Pachella, Surrogate.

text:
    Bergen County Surrogate’s Court.
    IN RE ESTATE OF FRANK JACOBSEN, DECEASED.
    Decided November 3, 1944.

      For the petitioner, Joseph H. Gaudielle and Thomas Brunetto.

   Pachella, Surrogate.

This is a petition dated November 29th, 1943, by the alleged widow of Prank Jacobsen, late of Ridgefield Park, who served in the merchant marine on a vessel which was torpedoed and sunk through enemy action on October 27th, 1942, for letters of administration on his estate. According to the petition the deceased also left him surviving, a brother and sister in Norway. A hearing was held on this petition and testimony taken by the surrogate on October 5th, 1944, at which time the ease was taken under advisement. On October 26th, 1944, petitioner, Elsie Jacob-sen filed what purports to be a discontinuance and withdrawal of her petition.

Previously,- on March 18th, 1943, this same petitioner, using the name Mrs. Elsie Zingerman, filed a petition for letters of administration on the same estate, with the late Surrogate Hopper, setting forth that she was a creditor to the extent of $200j due her from decedent for rent and lodging. She listed the decedent’s brother and sister as the only heirs-at7law and next of kin entitled to said estate. She did not include herself as widow or as next of kin and her affidavit annexed to the petition, taken by the late surrogate, states that the “Petition is in all things correct and true of her own knowledge and belief.” On April 22d, 1943, Surrogate Hopper entered an order to grant letters of administration to Mrs. Elsie Zingerman (now applying as Mrs. Elsie Jacobsen) upon the posting of a bond in the sum of $6,000, with sureties to be approved by the surrogate. The bond was never posted. On December 9th, 1943, a few days after the death of Surrogate Hopper, a discontinuance was filed and the original petition of March 18th, 1943, was discontinued. On the same day she filed the second petition (dated November 29fch, 1943) which is now before us for consideration.

Under these circumstances, and the facts hereinafter stated, is petitioner entitled as a matter of right, to withdraw her second petition for administration? I am of the opinion that she has no such absolute right.

The term "discontinuance” is the name applied to the voluntary withdrawal of a suit by a plaintiff. 12 Words and Phrases (Perm. Ed.) 557.

As a general rule, a discontinuance must be by leave of court, express or implied and on its order and cannot be accomplished by the mere act of plaintiff alone. 27 C. J. S., Dismissal and Nonsuit, 164, § 11; 18 C. J. 1150, § 7.

One instituting a proceeding has no absolute right at all times and under all circumstances to discontinuance, dismiss or take a nonsuit, without prej udice to the bringing of a new proceeding. 27 C. J. S., Dismissal and Nonsuit, 160, § 7.

Our statute provides that in the law courts “plaintiff shall have no right to submit to a nonsuit after the jury has gone from the bar to consider its verdict.” R. S. 2:27-235; N. J. S. A. 2:27-235; Bauman v. Whitely, 57 N. J. L. 487; 31 Atl. Rep. 982; Greenfield v. Cary, 70 N. J. L. 613; 57 Atl. Rep. 269.

Plaintiff is not entitled as of right to dismiss or take a nonsuit after the cause has been submitted for a final decision to the jury or the court trying the ease as a jury. 18 C. J. 1155, § 22; 27 C. J. S., Dismissal and Nonsuit, 174, § 20.

“There is no common law practice authorizing a voluntary nonsuit after the case has been submitted to the trial judge for decision without a jury.” Wolf Co. v. Fulton Realty Co., 83 N. J. L. 344; 84 Atl. Rep. 1041.

In a case tried without a jury, the judge performs the function of the jury and having heard the case and reserved decision, he must he considered in the position of “the jury having gone from the bar to consider their verdict.” Schuman v. Morey-Larue Laundry Co., 28 N. J. L. J. 239; 18 C. J. 1156, § 23.

It may be contended that the rules of the law courts do not apply to the probate courts. The surrogate’s practice, like that of other probate courts, follows Chancery practice. In re Kellner’s Estate, 121 N. J. Eq. 243; 189 Atl. Rep. 91; In re Gilbert’s Estate, 18 N. J. Mis. R. 540; 15 Atl. Rep. (2d) 111; Clapp on Wills and Administration in New Jersey, Supp. Vol. 2, § 452.

The rules of the Orphans Court do not cover the question of discontinuance, but by rule 75, N. J. S. A. tit. 2, provide that in eases not covered by these rules, the practice, procedure and rules of the Court of Chancery and the Prerogative Court shall, in so far as applicable apply to the Orphans. Court (Surrogate’s Court included) in the exercise of powers within the sphere of its jurisdiction.

Both Chancery rule 113 and R. S. 2:29-50; N. J. S. A. 2:29-50, provide that where a hearing has been commenced, and the taking oí proofs upon such hearing has been begun by complainant upon his bill, the complainant shall not be allowed to dismiss his bill except upon good cause shown and by a special order. '

“It is true, ordinarily that the reasons moving a suitor to' dismiss his action are immaterial, but in practice reasons for such a course are frequently assigned and m the absence thereof may be significant in ruling upon the motion for voluntary dismissal.” Delahoyde v. Lovelace, 39 N. M. 446; 49 Pac. Rep. (2d) 253, 257.

We realize that it is always a strong measure to prevent a plaintiff or petitioner from going on with or discontinuing his action or petition. In the ease at bar the record shows no reasons assigned by the petitioner for her alleged discontinuance. To allow her to discontinue without prejudice, would permit her, in addition to the applications made to my predecessor, and to me, to make a subsequent application to my successor or to the Prerogative Court. The impropriety of this is apparent. Petitioner’s discontinuance is therefore denied and we proceed to hear the matter on the merits.

The history of the case is illuminating. In her original petition to the late Surrogate Hopper, petitioner, as Mrs. Elsie Zingerraan, applied as a creditor of the decedent, claiming $200 for lent and lodging. In her present petition under consideration, using the name Mrs. Elsie Jacobsen, petitioner applies as the common law widow of the decedent.

To become entitled to letters of administration as the widow of intestate the applicant must show a lawful marriage subsisting at the time of his death. 33 C. J. S., Executors and Administrators, 929, § 35 (2).

The applicant produced evidence to show that she and decedent had entered into a common law marriage in New York in 1926 and moved to Bergen County in 1935. A cousin, who also accompanied her when she filed her original petition, and a neighbor, testified as to reputation and cohabitation of the parties as man and wife.

When asked to reconcile the discrepancy as to her personal status in the two applications for letters of administration, and specifically asked why she didn’t list herself as the widow of Mr. Jacobsen in the original petition, petitioner testified that she left all that to her cousin who gave the information to the surrogate. She alleged that the surrogate recommended that she list herself as a creditor. She admitted that she signed the petition and affidavit before the surrogate. Later she state 1 that she didn’t recall why she didn’t list herself as the widow. “He didn’t say what name to put down, so I put down by usual name.”

Her cousin testified, “I spoke with Mr. Hopper, and he advised us, that upon the facts presented, that the best way to approach the matter was to apply for letters of administration in the form of a creditor-.”

The surrogate then questioned him as follows:

“Q. Did the surrogate explain to Mrs. Zingerman [on the first application] and yourself that by applying as a creditor and saying that she was owed $200, that would be all she would receive? A. Ho. That she would be appointed administratrix and by getting the appointment to be administratrix of his estate she ;would receive all his money.

“Q. Was it explained to her that she would receive only the $300 ? A. No, Surrogate Hopper explained that she would receive the full estate.

“Q. Surrogate Hopper said that? A. Yes.

“Q. In other words, she would apply as a creditor for $300 and then' she would receive the $5,500 when she became administratrix? A. Yes. That was the impression that both Elsie and myself received from Surrogate Hopper.

“Q. And it was explained to the surrogate that Mr. Jacob-sen had a brother and sister in Norway, as listed in the petition? A. That was presumed to be, from thé last correspondence, that they were living somewhere.

“Q. You were present when your cousin signed this petition PS, and the surrogate took her acknowledgment to the affidavit, and explained to her that she was swearing to the truth? A. Yes.”

It is almost needless to state that the foregoing testimony is incredible. Surrogate Hopper presided in this court for twenty-six years. It is highly significant that the first petition was discontinued a few days after his death although the matter had been pending for months.

The burden of proving a marriage rests on the party who asserts it. 38 C. J. 1331, § 97.

If the surrogate determines that the applicant is not the widow of the late Erank Jaeobsen, then it follows that letters of administration of his estate must be denied to her. In re Brugnoli’s Estate, 97 N. J. Eq. 349; 127 Atl. Rep. 165; In re West’s Estate, 2 N. J. Mis. R. 526.

There is a distinction between the fact of marriage and the evidence thereof, and the acknowledgment of the marriage by the parties does not constitute a marriage but is merely evidence of it and is not conclusive evidence thereof. Keller v. Linsenmyer, 101 N. J. Eq. 664; 139 Atl. Rep. 33.

Clear, consistent and convincing evidence is required to establish common law marriage, validity of which is always open to suspicion, especially when one party is dead. In re Heitman’s Estate, 154 Misc. 838; 279 N. Y. S. 108; affirmed, 247 App. Div. 885; 288 N. Y. S. 876; affirmed, 272 N. Y. 533; 4 N. E. Rep. (2d) 435; In re Mattice’s Estate, 147 Misc. 143; 263 N. Y. S. 531; In re Brigg’s Estate, 138 Misc. 136; 245 N. Y. S. 600.

Evidence of admissions made by deceased tending to show marital relation with person seeking to inherit as surviving wife should be scrutinized with care and acted on with caution. In re Pratt’s Estate, 233 App. Div. 200; 251 N. Y. S. 424.

Tn addition to the applicant’s original petition in which she did not list herself as the widow of the decedent, but on the contrary swore that the only heirs were a brother and sister in Norway, the following facts adduced by the testimony must be considered in determining whether applicant was Mr. Jacobsen’s widow.

She testified that she usually used the name Zingerman, not Jacobsen. She carried on a business under the name of Zingerman. In all of the correspondence from the United States Coast Guard, the employers of the decedent, the telegram of notification of decedent’s loss, and the letters written to her by decedent himself, she was addressed as Mrs. Zingerman, not Jacobsen. These are important facts to be considered. State v. Bradley, 122 N. J. L. 575; 7 Atl. Rep. (2d) 286.

The decedent did not list her as his wife in his application for citizenship. None of the correspondence from the government officials or the employers of decedent to her, refer to her as the wife or widow of decedent. In fact, Exhibit P-6, a letter from the employers; is addressed to her as Mrs. Elsie Zingerman, and states that Mr. Jacobsen “named you as his friend to be notified in case of death.”

From all of the foregoing, I determine that a common law marriage between the applicant and the decedent has not been established and that her petition for letters of administration of his estate should be denied.


author: Leyden, C. C. J.

text:
    Bergen County Circuit Court.
    JACK EARL AND PAULINE EARL, LANDLORDS, v. KRUG BAKING COMPANY OF NEW JERSEY, A CORPORATION, TENANT.
    Decided November 14, 1944.
    For the landlord-plaintiff, Jerome J. Dunn.

    For the tenant-defendant, Brady & Daly.

   Leyden, C. C. J.

This proceeding, instituted in the District Court of the Fourth Judicial District of the County of Bergen, to recover possession of the premises known as Nos. 28-32 North Maple Avenue, in the Village of Bidgewood, Bergen County, from the tenant-defendant, was removed by order of Mr. Justice Bodine to the Bergen County Circuit Court pursuant to the statutes, R. S. 2:58-27; N. J. S. A. 2:58-27, and its companion R. S. 2:32-274; N. J. S. A. 2:32-274.

The attorneys for the parties being doubtful on the point, this application, on notice, was made by the tenant for an order requiring the landlord to furnish a bill of particulars as to the following:

1. State what repairs to the roof of the building on the demised premises you allege were necessary and which you allege the tenant failed to make.

2. State what you allege were the conditions in and about the roof of the building on the demised premises which made those repairs necessary.

3. State when you allege that the conditions in and about the roof of the building on the demised premises which youi allege made those repairs necessary first obtained or first came to your knowledge.

4. State whether it is alleged that the conditions in and about the roof of the building on the demised premises which you allege made those repairs necessary were called to the attention of the tenant and, if so, to whom representing the tenant notice thereof was given.

5. State what you allege to have been the cause of the conditions in and about the roof of the building on the demised premises which you allege made those repairs necessary and if you allege the cause to have been one or more identifiable occurrences, state what you allege each was and when you allege each occurred.

Summary proceedings in the District Court for the dispossession of tenants may be described as a statutory substitute for the common law action in ejectment, and although the proceedings are commenced by the filing of the jurisdictional affidavit, that affidavit is nonetheless a complaint in the ordinary acceptation of the term. One advantage of having the complaint in those proceedings in affidavit form is that a judgment of possession may be entered without further ado if upon the return day of the process the tenant enters no defense or fails to show cause why possession of the premises should not be delivered to the landlord. Bills of particulars may be allowed in all descriptions of actions where, as it is said, “the circumstances are such that justice demands that a party should be apprised of the matters for which'he is to be put for trial with greater particularity than is required by the rules of pleading.” Watkins v. Cope, 84 N. J. L. 143; 86 Atl. Rep. 545, 547, and the authorities therein cited. Our courts have sanctioned the allowance of a bill of particulars in summary statutory proceedings under the Medical Act, N. J. S. A. 45:9-1, et seq. State Board of Medical Examiners v. Levin, 10 N. J. Mis. R. 321; 159 Atl. Rep. 305. The tenant, therefore, is entitled to a compliance with a proper demand for a bill of particulars in a landlord and tenant proceeding.

The lease creating the tenancy between these parties contains the provision: “2nd: That the Tenant shall take good care of the premises and shall at its own cost and expense make all repairs, exterior and interior, except structural changes, and at the end or other expiration of the term, shall deliver up the demised premises in good orde7- or condition, damages by the elements, & ordinary wear and tear excepted.”

In the affidavit or complaint the landlord assigns the breach of this provision to make repairs as the basis of the termination of the tenancy, generally, in the following language: “Defendant Krug Baking Company of New Jersey, a corporation of New Jersey, failed to make necessary repairs to the roof of the building on the demised premises in accordance with the provisions of the lease aforesaid, attached hereto and marked 'Schedule A/ and has breached said lease in this respect, and deponents have elected to terminate this lease and the term thereof in accordance with the provisions of said lease.”

In justice, the tenant is entitled to know with more particularity what repairs to the roof of the building were necessary which the tenant failed to make. Demand No. 1 therefore is proper and should be answered. Demands Nos. 2, 3, 4 and 5 are improper and need not be answered. The conditions in and about the roof of the building which made the repairs necessary; when those conditions first came to the knowledge of the landlord; whether the conditions were called to the attention of the tenant and if so, to whom; or what caused the conditions complained of are quite immaterial under the terms of the lease and the circumstances.

An order may be presented requiring the landlord to furnish the particulars sought in demand No. 1.


author: Leyden, C. 0. J.

text:
    ELERA HOSIER, ARTHUR DeMOTT AND EVA MAY HANNEMANN, PLAINTIFFS, v. GREAT NOTCH CORPORATION, A BODY CORPORATE OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided December 11th, 1944.
    For the rule, Gox & Walburg (by William E. D. Gox).

    Opposed, Peter Eofstra (by Joseph V. FumagalK and G. Stanley Smith).

   Leyden, C. 0. J.

Prior to 1903 John H. DeMott and Mary Brewster were owners of adjoining tracts of land in Pequannoek Township, Morris County. Each tract, more or less rectangular in shape, fronted on the Mewark-Pompton Turnpike where the respective dwelling houses were located and ran back 3,300 feet to the bank of the Pequannoc-k Kiver. The outer lines of the tracts were approximately straight and the dividing line was parallel with the side lines for a distance of 2,600 feet, then turned to the northeast for a distance of 198 feet, then east 278 feet, then south 114 feet, then east in what would be an extension of the first 2,600 feet, 600 feet to the river bank. This irregularity outlined an indentation in the tract of DeMott measuring a little more than an acre of ground. The indentation, described as a jog at the trial, was on slightly higher ground and formerly had been the site of a dwelling house or barn as evidenced by the remains of the foundation. Access to the jog and to the meadow bordering the river was by a common lane, used as a roadway, and running along the dividing line from the turnpike, the 2,600 feet to the location of the jog, where it swung to the northeast and ended.

With this picture in mind, we come to the root of the difficulty giving rise to the litigation. On January 29-th, 1903, Mary Brewster conveyed the area described as the jog to DeMott. The deed was acknowledged on January 31st, 11903, but was not recorded until December 10th, 1906. In ■the meantime, on August 4th, 1904, Mary Brewster sold all her land, including the jog, to Prank Ward, who recorded 'his deed January 6th, 1905, almost two'years prior to the recording of the Brewster deed to DeMott. Title to the original DeMott tract passed by various, conveyances to the present owner, Sowerbutt Brothers, dealers in sand and gravel, and the title to the original Brewster tract passed by successive conveyances to its present owner, the defendant, feeat lfo”teh Corporation, also a dealer in sand and gravel. A dispute arose between these competing companies as to the ownership of the jog, and thereafter this action in trespass w-as brought by the heirs of DeMott for damage to the land resulting from the removal of sand and gravel by the defendant.

The unrecorded deed to DeMott was void as against Ward, a subsequent purchaser for value and the claim of the plaintiffs fails unless Ward at the time of delivery of his deed, had notice of the prior deed to DeMott, R. S. 46:22-l; N. J. 8. A. 46 :22-l. The plaintiffs, recognizing the indispensability of proof of notice, prior to August 4th, 1904, of the outstanding but unrecorded deed from Brewster to DeMott of January 31st, 1903, produced evidence which tended to demonstrate that DeMott exercised dominion and control over the area of the jog by the planting of corn in the spring of 1903 and 1904. The testimony of DeMotffs son, now sixty-two years of age, was to the effect that he was then twenty-one years of age and that the corn planted in the spring of 1903 and 1904 was harvested. The corn was planted on the jog but the ruins of the dwelling house or barn were not disturbed. The testimony of the planting of the corn in the years 1903 and 1904 was supported by other witnesses for the plaintiff who were members of the DeMott family. On the other hand, the witnesses for the defendant, to wit, the Ward family and the successors in title thereto, had no recollection of the planting of the corn on the jog but testified to the effect that the jog, if used for anything, was a storage place for unused farm equipment and crates of the Brewster family.

Actual notice of the outstanding prior deed Avas not given to Ward before he accepted his deed from Brewster and the question is whether the planting of the corn, without more, in the years 1903 and 1904, assuming that fact to be true, was notice of the degree required to Ward of the outstanding deed to DeMott thus bringing file situation within the exception in the statute making an unrecorded deed void as against subsequent purchasers.

In fine, the inquiry may be limited quite properly to the effect of the planting of the cam during the season of 1904, as there is no proof that Ward had visited the land in 1903. The question seems to be unusual in that the contest is over a fractional piece of a large tract of land.

The evidence of notice to Ward, given by the plaintiffs and taken at its full value, is insufficient to sustain the verdict rendered by the jury in favor of the plaintiffs. Possession or occupation of land, to be effectual as notice, must be exclusive and uninterrupted, open, notorious and visible, i. e., it must indicate the occupant; it must indicate that someone other than he who appears by the record to be the owner has rights in the premises, Cox v. Devinney, 65 N. J. L. 389; 47 Atl. Rep. 569. The fact that lands are under cultivation does not of itself suggest that anyone other than the reputed owner is in possession of them, Cox v. Devinney, supra. Merely cutting wood or pasturing cattle on unenclosed woodland, repairing the fences, and even removing an old house standing on part of the land, which may be regarded as mere acts of trespass as well as ownership, have been held to be insufficient as notice of the prior deed, Holmes v. Stout, 10 N. J. Eq. 419 (at p. 438). The rule is the same at law as in equity and the ground upon which the title acquired by a prior registry of a deed is lost in the case of notice to the second grantee of the existence of the prior conveyance, is that it is a fraud in the second grantee to take a deed knowing or having reason to suspect the existence of a prior title, Holmes v. Stout, supra.

The planting of the corn in the circumstances was not sufficient notice to Ward or to give him reason to suspect the existence of the prior title. This conclusion seems also to be supported by the fact that about a year after Ward took possession of his tract, DeMott requested his permission to straighten the common lane or roadway and extend it into the meadow.

The rule to show cause originally granted herein was limited to a new trial on the ground of the excessiveness of the damages. Application was made subsequently to enlarge the rule to embrace all the issues. The application to enlarge is granted and the rule as enlarged will be made absolute and a new trial granted on all the issues.


author: Leyden, 0. 0. J.

text:
    Bergen County Circuit Court.
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, PLAINTIFF, v. JOHN BENEVENTO, DEFENDANT.
    Decided December 11, 1944.

      For the plaintiff, George F. Losche.

    For the defendant, Carmine J. Parisi and Qhandless, Weller & Kramer.

   Leyden, 0. 0. J.

Defendant’s motion, the equivalent of a special demurrer, is to strike the complaint upon the ground —variously stated—of its insufficiency in law. The complaint is brief and is as follows:

“First Count
“Plaintiff, a Connecticut corporation authorized to do business in the State of New Jersey says:
“1. On November 17th, 1943, one George Mabie was employed by The Hackensack Trust Company, a banking corporation, as a Paying Teller.
“2. As such Paying Teller the said George Mabie had the custody of certain monies belonging to The Hackensack Trust Company.
“3. Between November 17th, 1943, and May 23d, 1944, the said George Mabie took funds ofcThe Hackensack Trust Company entrusted to his custody in the amount of $25,813 and delivered the said monies to the defendant, John Benevento as wagers or bets on the outcome of certain events of chance to wit, the result of certain horse races.
“4. On July 18th, 1944, said The Hackensack Trust Company, assigned its right of action against the said John Benevento to the plaintiff herein.
Second Count
“1. On November 17th, 1943, one George Mabie was a Paying Teller of The Hackensack Trust Company, and as such Paying Teller liad placed in his custody certain monies belonging to The Hackensack Trust Company.
“2. Between November 17th, 1943, and May 23d, 1944, the said George Mabie feloniously took and carried away certain of the said monies amounting to the sum of $25,813 and delivered the said monies to the defendant, John Benevento, who received the said funds knowing the same had been .stolen.
“3. On July 18th, 1944, The Hackensack Trust Company assigned its right of action against the said John Benevento to the plaintiff herein by a written assignment.
“Plaintiff prays judgment against the said defendant on the first connt in the snm of $25,813, and on the second count in the sum of $25,813.”

In support of the motion the defendant contends that neither count of the complaint alleges (a) an obligation or duty owing by the defendant to the plaintiff., nor (b) the failure of defendant to perform any obligation or duty so owing, and further, since the complaint at best sounds in tort for a common law conversion, the alleged chose in action is not assignable, R. S. 2:41-1; N. J. S. A. 2:41-1, and the plaintiff must fail for lack of authority to sue in its own name.

In opposition, the plaintiff contends that the missing allegations would be but conclusions which the law will presume from the facts stated, and, therefore, what the law intends may he omitted in the averments of the pleading, and insists that the complaint as pleaded, sets forth a good cause of action in assumpsit.

All pleadings must contain a plain and concise statement of the issuable facts on which the pleader relies, but not the evidence by which they are to he proved, S. C. R. 31; N. J. 8. A: tit. 2. Acts may be stated according to their legal effect, S. C. R. 35. The complaint must contain a statement of the facts constituting the cause of action and a demand for relief, S. C. R. 51. Our Practice Act, providing for but one form of civil action in courts of common law (except in proceedings on prerogative writs) and the rules promulgated thereunder, have not abolished the classifications of actions at common law and the essential and differentiating rules applicable to pleading established at the common law as a basis of remedial law, Ward v. Huff, 94 N. J L. 81; 109 Atl. Rep. 287; Taylor v. Brewer, 94 N. J. L. 392; 110 Atl. Rep. 693; Wm. H. Jamouneau Co. v. Wetherill, 98 N. J. L. 80; 118 Atl. Rep. 707. If the facts set forth in the complaint are true, the plaintiff, waiving the tort, has a cause of action against the defendant for the recovery of the moneso received quasi ex contractu upon the theory of unjust! enrichment. The law will not permit anyone to enrich himseif unjustly at the expense of another, and therefore thaction of indebitatus assumpsit for money had and received will lie whenever one has the money of another which he has no right to retain and which he is obliged by the ties of. natural justice and equity to refund, Cory v. Freeholders of Somerset County, 47 N. J. L. 181; Township of Franklin v. Jones, 86 Id. 224; 90 Atl. Rep. 1010. This right of action had its origin in Chancery due to the lack of a remedy at law, Capraro v. Propati, 127 N. J. Eq. 419; 13 Atl. Rep. (2d) 318. Such a right of action did not come within any of the forms of action in tort or on contract then known to the common law. The obligation or debt did not arise out of a genuine contract, that is, out of the will and intention of the parties expressed or implied in fact. On the contrary, the obligation or debt was created by law despite the dissent of a party. To provide a remedy at law the judges adapted the known remedy to the new situation and by means of fictions, brought the remedy within the form of an action in assumpsit, Keener on Quasi Contracts 14. This being so, the complaint should, to sufficiently plead a cause of action in assumpsit in the indebitatus count, allege such facts as will show the plaintiff’s right of action including a statement that the defendant has received a sum certain in money belonging to the plaintiff, for the use of the plaintiff, which the defendant in justice and equity is obliged to refund, Township of Franklin v. Jones, supra.. Recognizing the difficulty of proving a promise, which was essential to the action in assumpsit at common law, where none in fact existed, the doctrine that “the law implied a promise” from the facts was introduced. The indebitatus count was simple in that it was sufficient to state that the defendant was indebted to the plaintiff in a certain sum “for money had and received by the defendant to and for the use of the plaintiff,” 1 Chitty’s Pleading (7th ed.) 362; Bullen & Leake’s Precedents of Pleading (7th ed.) 205. As Mr. Justice Parker pointed out in Marine Trust Co. v. St. James Church, 85 N. J. L. 272; 88 Atl. Rep. 1075, 1076, where there may be doubt as to the manner of pleading, “the safest course is to utilize the special counts contained in the old form books which, when stripped of their verbiage, will usually be found to answer the purpose admirably.” The pleader should either allege the facts which constitute his claim or state the circumstances from which those facts necessarily by intendment of law result, Taylor v. New Jersey Title, &c., Co., 70 N. J. L. 24; 56 Atl. Rep. 152. What the law intends may be omitted in the averment of pleading, Bennington Iron Co. v. Rutherford, 18 N. J. L. 105; Wilkinson-Gaddis Co. v. Van Riper, 63 Id. 394; 43 Atl. Rep. 675; Ziegner & Lane v. Daeche, 91 N. J. L. 634; 103 Atl. Rep. 82.

Viewed in this light the complaint alleges in the first count that the defendant received a sum certain in money belonging to the plaintiff’s assignor for an illegal purpose, to wit, a wager on a horse race; and in the second count that the defendant received a sum certain in money, the property of the plaintiff’s assignor, with knowledge that the said sum of money had. been stolen from the plaintiff’s assignor. Prom these allegations of fact the law will imply an obligation or debt owing from the defendant to the plaintiff’s assignor and the promise by the defendant to repay that which in equity and justice he should refund.

The Hackensack Trust Company’s right to such money is a chose in action arising quasi ex contractu—out of the implied contract of the defendant to refund the money belonging to it—and as such is assignable in law, R. S. 2:41-1; N. J. S. A. 2:41-1; Van Pelt v. Schauble, 68 N. J. L. 638; 54 Atl. Rep. 437.

The complaint is sufficient and the motion to strike is denied.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    THOMAS MORAN, PLAINTIFF, v. FIREMEN’S AND POLICEMEN’S PENSION FUND COMMISSION OF THE CITY OF JERSEY CITY (NEW JERSEY), DEFENDANTS.
    Decided December 12, 1944.
    For the plaintiff, Ziegener & Brermer.

    For the defendant, Charles A. Rooney.

   Brown, C. C. J.

The plaintiff moves to strike the answer and for summary judgment, in the above entitled canse, on the ground that the allegations contained in the answer are untrue in fact and sham; that the answer and separate defenses contained therein do not constitute a legal defense to the plaintiff's action. It is alleged in the complaint the plaintiff was a member of the police department of Jersey City and about twenty-one years ago retired on a pension at the rate of $112.50 a month which was paid by the defendant commission until the first day of June, 1940. It is further alleged the defendant failed to pay the pension due from the defendant to the plaintiff for a period from June 1st, 1940, to April 1st, 1942, and upon a suit being brought therefor against the defendant, summary judgment was entered for the amount due. The above entitled action is a suit to recover the pension payments due from the defendant from the 1st day of May, 1942, to and including the month of December, 1942, amounting to the sum of $900. The plaintiff, Thomas Moran, died on the 25th of December, 1942, in Ireland, where he resided many years previous to his death. It does not appear in the ease that letters testamentary have been obtained in the State of New Jersey. A certified copy of the will of Thomas Moran is on file in the office of the surrogate of the County of Hudson. The answer of the defendant denies that there is any pension payments due to . the plaintiff. In the separate defenses the defendant alleges that they are ready and willing to pay the plaintiff the pension alleged to be due provided the plaintiff appears in person at the office of the defendant in Jersey City. The defendant alleges it has adopted a regulation, for the duration of the war, that persons entitled to pension payments will not be paid unless they appear in person and also that they will not issue cheeks for pension payments to persons residing without the United States. The above mentioned plaintiff left a last will and testament wherein his wife Hannagh Moran is mentioned as executrix. An exemplified copy of the will, which was executed in Ireland, has been filed with the surrogate of Hudson County. Further action has not been taken to obtain letters testamentary from the surrogate of Hudson County. The name of the said executrix has been substituted for the name of Thomas Moran as plaintiff. There are many grounds relied upon by the defendant against the granting of the motion. It appears to the court that a determination on one of the grounds advanced by the defendant, that is to say '“there is no proper party plaintiff,” will be dispositive of the motion. The defendant cites in support of its contention R. S. 2:26-25; N. J. S. A. 2 :26-25. The court finds that the statute referred to has no application to the conditions that exist in this case concerning the party plaintiff. At common law it is well established, in the absence of prohibitory statutes, a non-resident may be appointed and act as executor, even ah alien was not disqualified at common law to act as such. In re Mulford, 217 Ill. 242; 75 N. E. Rep. 345; 3 Ann. Cas. 986; In re Bailey’s Estate, 31 Nev. 377; 103 Pac. Rep. 232; Ann. Cas. 1912A, 747. In the State of New Jersey it has been held the mere filing of an exemplified copy of a will in the surrogate’s office does not qualify the executor to maintain a suit. Porter v. Trall, 30 N. J. Eq. 106; Babbitt v. Fidelity Trust Co., 70 Id. 651 (at p. 656); Riddle v. Slack, 96 N. J. L. 412 (at p. 414); 115 Atl. Rep. 741. It is not necessary to rely upon the common law principle of granting letters testamentary to aliens and non-residents for the reason that there are statutes regulating the granting of letters. Reference is very often made to “other states” as being foreign states. In New Jersey there is a statutory definition for the word “State” and -it defines the words as extending to and including any state or territory or possession of the United States, the District of Columbia and the Canal Zone. R. S. 1:1-2; N. J. S. A. 1:1-2; R. S. 2:26-25; N. J. S. A. 2:26-25, the statute referred to by the defendant does not apply to wills made by alien residents. The statutes that do apply are R. S. 3 :2-37; N. J. S. A. 3:2-37, which reads as follows:

“When any will of a decedent, nonresident in this state at the time of his death, shall have been admitted to probate in any state of the United States, or in any foreign country, any person desiring to have such will admitted to probate in this state for any purpose may make application therefor by a duly verified petition to the ordinary or to the surrogate of any county in this state.”

And also R. S. 3:2-38; N. J. S. A. 3:2-38:

“The ordinary or the surrogate, upon the copy of a will mentioned in section 3:2-37 of this title, or of the record thereof, and the certificate of probate thereof, being filed in his office, certified and attested as a true copy thereof by the person, officer or court admitting the same to probate, and exemplified and authenticated or certified as provided by section 3:2—39 of this title, shall admit such will to probate and issue letters testamentary or of administration with the will annexed thereon and reeoxd the same in Ms office without i the production of the original will, if it shall appear by the i record of probate accompanying the same that such will was. executed in. accordance with the laws of this state, and if it> shall not by such probate proceedings so appear, then upon proof, taken under a commission, if necessary, or in any other manner provided by law, of the due execution of such will in accordance with the laws of this state, which proof may be taken in the same manner as if the original will had been produced before Mm.”

The court determines that the plaintiff bringing this suit is not the proper party plaintiff. She is not qualified under the statute. The motion to strike the answer and separate defenses will be denied.


text:
    New Jersey Department oe Labor, Workmen’s Compensation Bureau.
    ISABEL S. WORTHINGTON, PETITIONER, v. PLAINFIELD BOARD OF EDUCATION, CITY OF PLAINFIELD, NEW JERSEY, RESPONDENT.
    Decided November 22, 1944.
    Dor the petitioner, Edwin J. O'Brien (Thomas Brett, of counsel).
    Dor the respondent, Gox & Walburg (Victor Hansen, of counsel).
   A petition was filed in this matter, alleging an injury arising out of and in the course of the employment of petitioner as a school teacher for the Board of Education of the City of Plainfield. Respondent filed an answer specifically denying that the injury arose out of and in the course of the employment of petitioner as a school teacher of the City of Plainfield.

The matter came on before me at Newark, November 3d, 1944, at which time counsel for petitioner and respondent presented to me a written stipulation of all of the faets con-corning the injury to petitioner. The said stipulation provided as follows: ;

“Petitioner in this case was on March 30th, 1943, em-1' ployed as a teacher in the home economics department of the, Plainfield school system, earning $3,000 yearly. On that1' day she was worM-ng at Evergreen School, which was in charge of Mr. Davis, principal. In connection with a war-loan drive, permission was granted by Mr. Davis for the United States Army to put on a demonstration of tire uses of a jeep. The following notice was posted on the school bulletin board announcing the demonstration:

March 30th, 1943.
’’Was Savings Song Tune: Parmer in the Dell.
We’U. buy our stamps to day,
>We’ll buy our stamps today,
Heigho-—-America,
We’ll bay our stamps today.
It’s Liberty for Aye!
It’s Liberty for Aye!
Heigho—America'
We’ll bay our stamps today.
“Buy more and more War Stamps. Everyone should do this. It is the object of the Junior Eed Cross Council to try to encourage the buying of more stamps. We would lifee to be able to buy a Jeep with our stamp sales To do this everyone must buy more stamps.
“Today a Jeep from Camp Kilmer will be on exhibit on the playground. The schedule for classes is below:
6p — 9 :30 3j —10:12 5 —10:43
Kg — 9:36 4f —10:18 5D —10:54
1Z — 9:43 4b —10:34 6H —11:00
1 S— 9:48 6A —10:30 8C —11:06
2o — 9:54 7 R—10:36 8B —11:12
2K —10:00 7 N—10 :43 7G- —11:18
3N —10:00
ITo Junior Assembly today.

“In connection with, the demonstration, the sergeant in charge of the jeep brought logs and wood and a wooden ramp or obstacle was constructed in the yard of the school. The jeep was to be driven up this ramp, which was built to a height of a foot or more off the ground ending abruptly so that after ascending the ramp the jeep had a dr-op of a foot or more back to the ground.

“Petitioner in response to said notice appeared with her class in the school yard at 11:15 a. m. and at the invitation of the driver of the jeep entered it together with another teacher and a number of children. They were driven around the school yard dodging trees and then np the ramp and off the abrupt end of same. The jeep at this time contained petitioner, another teacher and a large number of children, some of tire latter being required to stand. While riding over the obstacle petitioner was holding onto a grip on the side of the jeep with her right hand and was helping to steady a child standing in front of her with her left hand. When the jeep dropped off the abrupt end of the obstacle she was bounced from her seat but clung with her right hand to the grip on the side o-f the jeep and as a result of the strain thus thrown on her right hand and arm she is alleged to have injured her right arm, shoulder and back.

“It is also stipulated that if Mr. Davis, principal of the school, were called he would state that he was present during part of the demonstration and that he gave no directions either for or against teachers and pupils riding in the jeep. Mr. Davis would also testify that prior to the time he learned that the petitioner rode in the jeep that he had seen some pupils ride in the jeep and then left tile demonstration to attend, to some other duties.

“it is also stipulated that if Mr. Hopper were called he would testify that he is the director of the Industrial and Tine Arts Department and the petitioner’s superior; that he knew nothing about the demonstration until the petitioner some time in June, 1943, came to him and asked if he could do something about getting her compensation for this accident. He advised her all he could do was to report the matter to Mr. Zimmer, Secretary of the Board of Education, which he did.

“It is also stipulated that if Mr. Zimmer were called he would testify that he is the Secretary of the Board of Education of Plainfield and on March 9th, 1943, ike following resolution was adopted by the Board of Education:

“Besolved, that the work of the employees of the Board | of Education relating to any war effort constitutes a paast1 of the voluntary or required school program of the Plainfield' School District.

“St is farther agreed that he would also testify that the Board of Education did not sponsor the demonstration and-knew nothing about it until he was told by Mr. Hopper on June kith, 1943.”

After due consideration of the above stipulated facts I do find that the injuries sustained by petitioner on March 30th, 1943, while she was riding in the jeep, as aforesaid, arose out of and in the course of her employment. The injuries in question occurred on the school property and while petitioner was actually engaged in an activity that was at least sponsored by the Evergreen School at which she was working, if not by a formal approval of the Board of Education itself. It is a fact from the stipulation that there were school children in this jeep, that petitioner was actually in the jeep with the children and was even helping to steady or support one of them in the crowded vehicle. Her presence in the jeep was, therefore, clearly within the scope of her duties and it might even be said that she was required to be there due to the presence of the children, who undoubtedly required supervision under the circara-sfanees. I, therefore, find as a matter of fact that petitioner’s injuries on March 30th, 1943, arose out of and in the course of her employment within the meaning of our Workmen's Compensation Act, N. J. S. A. 34 :15—1, &t seq. On the question of disability, petitioner testified that she lacked strength in her arm and hand and has great difficulty in raising her arm because of pain in the upper arm and shoulder. She stated that this pain particularly affects her in hor work when she has to reach up to write on a blackboard.

Doctor Max Hummel, who examined the petitioner on December 18th, 1M3, testified that there was slight restrietion of forward flexion and abduction, some restriction of external rotation and on internal rotation considerable restrietion. His diagnosis was sub-pluxation of the acromioclavicular joint with a frozen shoulder. He stated that at the time of his examination he found an existing disability of 12%.% of total.

On behalf of respondent a report of Dr. Otis P. Chapman ■was submitted in evidence, which indicated that he had fixed the disability at 5% of total.

Since respondent refused to admit petitioner’s injuries as compensable it was necessary for petitioner to secure medieal I aid herself and she testified that she originaky was treated1 by Dr. Barnes of Plainfield, who treated her until June 30th, 1948, when the school term ended and she returned to her home in Eoehester, New York. A report of Dr. Barnes was marked in evidence, which indicated that at the time petitioner returned home she was still in need of further medieal treatment. While in Eoehester she was treated by Dr. Carl T. Harris who hospitalized her at Genessee Hospital and rendered treatment by manipulation under anaesthesia. While in Eoehester she was also given physiotherapy at Eoehester General Hospital. At the suggestion of Dr. Harris, when petitioner returned to her teaching duties at Plain-field in September, 1943, she went to Dr. Elmer P. Weigel, who rendered treatment from September 7th, 1943, through January, 1944. For this medical treatment the following 'bills were by consent offered in evidence:

Dr. Barnes, $34; Dr. Boyes for X-rays, $10; Dr. Gad T. Harris, $65; Genessee Hospital, $104.95; Dr. Elmer P. Weigel, $129; Dr. John C. Desslook, $10; Eoehester Gen- . eral Hospital, $22.

The bills of Drs. Barnes, Boyes and Dessloek were paid by petitioner herself, as well as the bills of Genessee Hospital and Eoehester General Hospital. The only bills outstanding and unpaid are those of Drs. Harris and Elmer P. Weigel.

As to the medical expenses, I do find that they were necessarily incurred by the petitioner for the treatment of the injuries sustained and I do find that they are reasonable with the following exceptions: The reimbursement for the bill of Qenessee Hospital is reduced to $80.95, since that bill shows that petitioner had a private room at lOO per! day, whereas the standard rates in New Jersey are $5.501 per day for the first week and $5.25 for the succeeding weeks.; Petitioner will, therefore, be reimbursed for the money ex-, pended at the Qenessee Hospital in the sum of $80.95. The bill of Dr. Harris is reduced from $65 to $56 to conform/ with the charges usually paid fo-r such services by phy-sieians in this state. The bill of Eoohester General Hospital for-physiotherapy treatment, which was paid by petitioner, is not strictly in conformity with the charges rendered for such services i-n this state and she is entitled, therefore, to reimbursement on this bill in the sum of $18.

After considering the medical evidence as to the nature; and extent of the injuries, I do find that petitioner is not entitled to any temporary disability, there being no lost compensable time, and as to permanent disability, that she is entitled to partial permanent disability or 35 weeks compensation at $-20 per week, amounting to SYSO.

It is, therefore, * * * ordered and determined that petitioner met with an accident arising out of and in the course of her employment with respondent on Ma-rch 30th, 1948, and that respondent had due knowledge and noMoe of same.

* * * * * * if

John C. Wegner,

Deputy Commissioner.


author: Olibhant, S. £3. C.

text:
    SOL KANTOR, PLAINTIFF, v. ROBERT D. GROSMAN ET AL., DEFENDANTS.
    Decided December 20, 1944.

      Eor the motion, Elias A. Kantor and John J. Clancy.

      Contra, Sol Kantor.

   Olibhant, S. £3. C.

This case is before me on a motion to strike out the complaint. Attached to it as Schedule E is a copy of an order of the Court of Chancery by which the plaintiff i« restrained from suing any of the defendants named in the instant suit. It is in the following language:

“It is thereupon, on this 30th day of December, 1941, Gebbbbd, Adiju-dged and Deobeed as follows: “The said defendant, Sol Ha-ntor, his attorneys, agents and servants, jointly and severally, be and they are hereby enjoined and restrained from suing, threatening to sue and writing to the persons to whom the defendant has heretofore written, some or all of whom may be petitioner’s witnesses in this suit, and particularly is said defendant, his attorneys, agents and servants, jointly and severally, restrained and enjoined, from suing or again writing to Mrs. Martha Rich, Mr. Louis Rich and other persons named in two certain letters written by defendant on November 13th, 1941, and November 19th, 1911.

“The restramt hereby imposed shall continue until the further order of this court.”

There is nothing before me to show and in fact the plaintiff admits that that order has never been vacated and therefore on the record before me it is an effective bar to this suit.

Notwithstanding that situation I will determine this motion on its merits.

The grounds set forth in the notice of motion are that the complaint is sham and that it states no cause of action.

The latter need not be considered as the notice does not contain a specification of the particular cause of objection, Dunn v. Chernewski, 101 N. J. L. 37; 137 Atl. Rep. 338.

The complaint is in three counts, all charging the defendants with conspiracy in that they induced and procured Caroline Bich, the former wife of plaintiff, to leave and divorce him and to procure false and perjurious testimony in furtherance of such action; to libel plaintiff by procuring and indueing the said Caroline Rich to make false, malicious and' libelous statements in her petition for divoree and in proems-' ing the restraining order of the Court of Chancery heretofore j mentioned.

All of these defendants are related by blood or marriage in. ‘ varying degrees to the former Mrs. Kantor.

Affidavits have been submitted by all parties which I have examined with great care as has likewise been done with the voluminous briefs filed. Those of the defendants deny categorically and in detail the allegations of the complaint. The affidavit of the plaintiff is entirely devoid of facts in support of the allegations contained in the complaint, which in itself sets forth no facts. It is replete with hearsay, innuendo and conclusions; is argumentative and contains many characterizations. It is scandalous, scurrilous, insulting and impertinent. It borders on the contemptuous and the clerk of the Supreme Court will be ordered to impound it.

In tire first place it should be noted that the marriage of the plaintiff and Caroline Rich was declared a nullity by the final deeree of the Court of Chancery under date of May 18th, 1942.

The power to strike out a pleading as sham should be eautiously exercised and not done unless it clearly appears to be so. The function of the court on a motion such as this is to determine whether an issue of fact is presented, not to try the issue or determine the veracity of the parties. If the matters set up iu the affidavits of the defendants are not controverted and demonstrate that the cause of action as pleaded is sham and without factual support the court should exercise its power and grant the motion. Kamm, Inc., v. Flink, 113 N. J. L. 582 (at p. 596); 175 Atl. Rep. 62. That is the exact situation presented here. The complaint sets forth no facts and the mere statement in the affidavit of the plaintiff that the charges as asserted in the complaint are true with no facts therein set forth in support thereof so that the court can determine whether an actual factual question is presented, is not enough.

A sham complaint may be stricken out upon proper affidavits in support of a motion for that purpose, unless the plaintiff by affidavit or other evidence shall show such facte as may be deemed sufficient to entitle him to proceed with his suit and if the affidavits do not give it factual support, the court is justified in. granting the motion. See Solomon v. Saline, 108 N. J. L. 214; 157 Atl. Rep. 383.

While courts are reluctant to grant such motions, a complaint is no more sacred than the right of a defendant to be protected from the necessity of defending unfounded and. unwarranted actions, from the harassment, expense and embarrassment thereof.

W'hat the courts have said with regard to sham pleas applies with equal force to sham complaints. In Coykendall v. Robinson, 39 N. J. L. 98, it was held that the right which a defendant had at common law, to have the issue of fact tried by a jury, was subject and subordinate to the power of the court to strike a false plea, and further that an affidavit in support of the plea cannot defeat or take away the power of the court to strike out. “The affidavit was intended to be in aid of the power of the court to prevent sham pleading, not to interfere with, much less wholly to destroy and take away that beneficial power.”

The plaintiff complains in his brief of previous orders made by Hie court relating to extensions of time and bills of particulars but there is no merit in these contentions.

The motion is granted.


text:
    Essex County Circuit Court.
    LOUIS J. SINGER, TRADING AS MODERN FACTORS, PLAINTIFF, v. MURRAY HOLDING COMPANY, DEFENDANT.
    Decided March 24, 1944.
    For the plaintiff, Max L. Bosenstein (George H. Bosenskem, of counsel).
    For the defendant, Kessler & Kessler (Samuel I. Kesslev and William L. Tieser, of counsel).
   William A. Smith, C. C. J.

This action in replevin was ’submitted to the court for trial without a jury on a written stipulation of facts, and the court, in hereby determining this aetion, finds the facts as they are stated in the stipulation of facts.

The defendant, Murray Holding Company, is the landlord of certain leased factory premises which it leased to the Austin Hat Company on or about January 1st, 1941, as tenant, for the term of one year at a monthly rental of $160 payable on the first of each month in advance. The lease was renewed for the second year commencing January 1st, 1942, at a monthly rental of $175. On October 20th, 1941, the tenant gave a chattel mortgage on its machinery to the plaintiff, which chattel mortgage covered by its description tfaei goods taken by the plaintiff in this replevin.

At the tíme the chattel mortgage was given the rent due. October 1st, 1941, was unpaid, but it was subsequently paid' on Kbvember 5th, 1941, and before the proceedings to foreclose under the chattel mortgage were taken. On January* 8th, 1942, the plaintiff caused notice to be given of proceedings to foreclose under the chattel mortgage, which proceedings were prosecuted to sale to the plaintiff on January % 1st, 1-942. On or about January 9th, 1942, there being rent unpaid to the defendant in the sum of $495, the defendant exercised its lien under R. S. 2 :60-229; N. J. S. A. 2:60-229, and took proceedings resulting in a sale to it on January 27th, 1942.

These proceedings in replevin were instituted on January-,2ml, 1942, resulting in the possession being delivered to the | plaintiff pursuant to the replevin action. The defendant in this action files its eounier-elaim for the unpaid rent, alleging priority by reason of its lien under the statute, R. S. 2:80-229; N. J. S. A. 2:60-229, and the question now at issue for determination of the court is whether the statute* in question gives priority to the defendant’s claim for rent1 over the lien of the chattel mortgage.

The plaintiff contends that the rent for which the lien is-claimed and for which t-he counter-claim is brought, having1 accrued subsequent to the making of the chattel mortgage (the unpaid rent due at that time having subsequently been paid) that a proper construction of the statute under which !the defendant invokes its lien is to limit the defendant’s lien •'to the extent of the tenant’s interest in the property covered ■by the replevin and as not prior to paramount to the lien of the plaintiff chattel mortgage. The statute in question reads as follows, R. S. 2:60—230; N. J. S. A. 2:60-230:

KA rente shall be entitled to a lien on machinery and other chattels to the extent of the xentee’s interest therein for the amount of unpaid rent, from the date the rent is unpaid.

“Such lien hereby created shall have priority and be paramount to any hiéle, lien, interest, mortgage, judgment or other encumbrance created or acquired after machinery or other chattels are placed in the premises. Such priority shall extend only to the amount of unpaid rent for not more than six months.”

It is true that the first paragraph of this section states that the renter’s (meaning landlord’s) lien is limited to the extent of the rentee’s (meaning tenant’s) interest in the property. But the second paragraph specifically, provides that such lien shall have priority and be paramount to any title, deed, interest, mortgage, judgment, or other encumbrance created or acquired after the machinery or other chattels are placed on the premises.

It is my view, therefore, that the proper construction of the entire section is to give a lien for not more than six months unpaid rent in favor of the landlord and prior to any chattel mortgage that the tenant places upon the property after such property is placed in the demised premises. To limit the lien to the extent of the rentee’s interest in the property placed on the demised premises would fail to give effect to the express provisions of the second paragraph of this section.

The reference in the first paragraph of 2:60-230 limited the lien of the landlord (renter) to the tenant’s (rentee’s) interest in the machinery or other chattels, is very necessary to protect property other than the tenant’s that may be brought on the demised premises, as distinguished from property that the tenant owns or has an interest in, and for the protection of lienors and others having an interest in property brought on the premise by the tenant where the liens or interest in the property existed at the time the property was brought on the premises.

It is true that the statute in question, which was originally chapter 237 of the laws of 1933, has a preamble reading as follows:

“Whereas, It is the practice of some manufacturers to rent space in a mill, factory or other building to manufacture machinery or other chattels of one kind or another and when they find they owe the landlord several months rent to place a chattel mortgage on machinery or other chattels after the rent is overdue and to the great prejudice of the landlord’s interest * *

But it is my view that this preamble does not limit the clear terms of the statute itself.

I will therefore -find a judgment in favor of the defendant' on the plaintiff’s replevin action and a judgment in favor of the defendant cm its counter-claim for the amount of rent; due of


author: Ackebsobt, S. G. G.

text:
    RECONSTRUCTION FINANCE CORPORATION, A CORPORATION ORGANIZED UNDER THE LAWS OF THE UNITED STATES OF AMERICA, PLAINTIFF, v. CHARLES HAAG, DEFENDANT.
    Decided September 29, 1944.

      For the plaintiff, Charles B. L. Bemmersley.

    For the defendant, Benedict A. Beromo (;Isadore Glaiibermmi, of counsel).
   Ackebsobt, S. G. G.

This action is brought to recover the amount alleged to be due on a bond dated July 3d, 1923, made by the defendant to Jefferson Trust Company and assigned by the latter to the plaintiff herein. The lien of the mortgage ■which was given to secure the payment of this bond was extinguished by the foreclosure in the Court of Chancery of two tax sale certificates in which proceedings the final decree affecting the easterly half of the mortgaged premises was entered on November 24th, 1942, and that affecting the westerly half was entered January 7th, 1943.

Defendant’s answer consists of a denial of the allegation in paragraph 8 of the complaint that there is now due to the plaintiff as owner of said bond, the sum of $20,000 of principal and interest from September 1st, 1936, and there are appended thereto eight separate defenses and also the reservation of the right to move to strife the complaint at or before trial for specified reasons. The matter is now before the court on plaintiff’s motion to strife this answer, including the separate defenses and the aforesaid reservation, for reasons presently to be considered.

Since the validity of the general denial found in paragraph 8 cf the general answer depends upon the sufficiency of one or more of the separate defenses appended thereto, we will pass immediately to the consideration of the latter.

The fourth and fifth separate defenses respectively allege that the present action was not commenced within three months from the date of the sale of the mortgaged property ' for unpaid taxes nor within three months from the dates of. the final deerees of the Court of Chancery barring plaintiffs1 ¡right of redemption.

Plaiútiff moves to strike these defenses as frivolous and insufficient in law. Obviously they were intended to invoke the limitation features of the second section of the Mortgage Act, R. S. 2:05-1, et seq.; N. J. S. A. 2:65-1, et seq. It is well settled, however, that this act does not apply where, as here, the lien of the mortgage given to secure the bond being sued upon has been extinguished by the foreclosure of a prior encumbrance or lien before the commencement of the action on said bond. In other words the provisions of this statute do not apply to any bond except the bond of the complainant in the foreclosure of the mortgage which it was given to secure. Wheeler v. Ellis, 56 N. J. L. 28; 27 Atl. Rep. 911; Seigman v. Streeter, 64 N. J. L. 169; 44 Atl. Rep. 888; Franklin Loan and Building Association v. Richman, 65 N. J. L. 526; 47 Atl. Rep. 426; Pruden v. Savage, 70 N. J. L. 22; 56 Atl. Rep. 690; Bower v. Bower, 78 N. J. L. 387; 74 Atl. Rep. 522; Schmidt v. Frey, 86 N. J. L. 215; 90 Atl. Rep. 1123; Echickson v. Zalenski, 106 N. J. L. 508; 150 Atl. Rep. 335; Sivade v. Smith, 104 N. J. Eq. 528; 146 Atl. Rep. 364; Pink v. Deering, 122 N. J. L. 277; 4 Atl. Rep. (2d) 790; Bloomfield Heights, Inc., v. Holland Associates, Inc. (Circuit Court, Essex County, January 17th, 1944), 22 N. J. Mis. R. 61; 35 Atl. Rep. (2d) 622. The fourth and fifth separate defenses will, therefore, be stricken as frivolous.

The seeond, third and eighth separate defenses respectively allege that the present action was not commenced within one year from the date of the sale of the mortgaged property for unpaid taxes, nor within one year from the date of the final decree in the tax lien foreclosure proceedings in the Court of Chancery barring plaintiff’s right of redemption, and not within one year gí the date of the orders of the Court of Chancery confirming the master’s report in the two municipal tax sale certificate foreclosure proceedings.

Plaintiff moves to strike these defenses as frivolous and insufficient in law. They were undoubtedly pleaded in an effort to take advantage of the limitation features contained in Pamph. L. 1942, ch. 172, p. 532; R. S. Cum. Supp., 2:65-7, 1, et seq.; N. J. S. A. 2:65-7, 1, et seq., which act is entitled “An act concerning actions on bonds, payment whereof are ox shall be secured by mortgage, in cases in which the lien of the mortgage has been or shall be extinguished by the foreclosure of a prior mortgage, and supplementing chapter 65 of Title 2 of the Revised Statutes.”

The first section of this act provides as follows: “Where a bond and mortgage shall be or have been given for the same debt and the lien of the mortgage has been or shall be extinguished by the foreclosure of a prior mortgage, action on the bond shall be commenced within one year from the date of the confirmation of the sale of the mortgaged premises whereby the lien of said mortgage was or shall be extinguished, * * *, but the time during which any application for surplus moneys arising from the foreclosure of such prior mortgage shall be in litigation, up to the time of the final determination of such litigation, shall not be taken or computed as part of any such period of one year. (Italics supplied throughout.)

Thus wo see that the purpose of the act, as expressed in its title, as well as the enactment of the limitation upon the time for bringing action, as contained in the first section, are referable only to situations where the lien of the mortgage given to secure the bond in suit has been extinguished by the foreclosure of a prior mortgage. ÍTo mention is made of its extinguishment by a tax lien certificate foreclosure nor by the foreclosure of any otheT type of prior lien or encumbrance. Aside from this significant fact, however, the general context of the statute indicates that it was not intended, and could not be arbitrarily construed to apply to such a situation when the specifically designated application thereof is considered in connection with the nature of a municipal tax sale certificate foreclosure proceeding. The latter is a strict foreclosure which may not be brought until two years after the sale of the property for unpaid taxes. The original tax sale is not subject to any confirmation and there is no further sale of the property after the tax sale lien has attached thereto. Since the tax sale certificate foreclosure is a strict foreclosure without any further sale of the property, as in the case of a mortgage foreclosure, there can be no “surplus money” proceedings as referred to in the statute and the only remedy of the mortgagee against the holder of the tax sale certificate is that prescribed by the statute, i. e., redemption under R. S. 54:5-54 to 54:5-56; N. J. S. A. 54:5-54 to 54:5-56. The rights of the holders of such municipal liens arise solely out of and are fixed and determined by the Tax Act. ITor substantiation of the above observations and the nature of a tax certificate foreclosure as distinguished from a mortgage foreclosure see Mitsch v. Owens, 83 N. J. Eq. 404; 89 Atl. Rep. 292; Kurzius v. The Hillside Land Co., 112 N. J. Eq 466 (at p. 468); 164 Atl. Rep. 687; Atlantic City v. Gardner, 124 N. J. L. 110; 199 Atl. Rep. 724; Forster v. Davenport, 128 N. J. Eq. 385; 16 Atl. Rep. (2d) 614; Bloomfield Heights, Inc., v. Holland Associates, Inc., supra.

It has been held that R. S. 2:65-l, et seq.; N. J. S. A. 2:65-l, et seq., is in derogation of the common law and must be strictly construed, Callan v. Bodine, 81 N. J. L. 240; 79 Atl. Rep. 1057; Development Building and Loan Association v. Nurock, 10 N. J. Mis. R. 23; 157 Atl. Rep. 452; Wolf v. Schlichting, 111 N. J. Eq. 619; 161 Atl. Rep. 840; Algrod Realty Co v. Bayerl, 10 N. J. Mis. R. 651; 160 Atl. Rep. 504; Bloomfield Heights, Inc., v. Holland Associates, Inc., supra. Necessarily the supplement to that statute, R. S. 2:65-7.1 to 2:65-7.3; N. J. S. A. 2:65-7.1 to 2:65-7.3, with which we are presently concerned must receive a similar construction. In the face of this established method of construing the parent statute, R. S. 2:65—1, et seq.; N. J. S. A. 2:65-l, et seq., the legislature saw fit to specifically limit the application of the last mentioned supplemental statute (R. S. 2:65-7.1 to 2:65-7.3; N. J. S. A. 2:65-7.1 to 2:65-7.3) in the manner above indicated and consequently the courts cannot extend it to cover the situation here presented.

The second, third and eighth separate defenses will, therefore, be stricken as frivolous.

The first separate defense pleads the sixth section of the statute of limitations (R. S. 2:24-5; N. J. S. A. 2:34-5), i. e., that the cause of action did not accrue within sixteen years next preceding the commencement of the present action.

Plaintiff moves to strike this defense as sham. However, the affidavits disclose a question of fact with respect thereto, consequently plaintiff’s motion in this regard must be denied.

The sixth separate defense alleges that plaintiff is not the owner and holder of the asserted cause of action. The motion is to strike this defense as sham. Plaintiff’s affidavits support its claim of ownership while defendant’s affidavit not-only fails to refate it, but actually annexes a certified copy of the assignment of the bond and mortgage in question from Jefferson Trust Company to the plaintiff upon which the latter’s title is founded and relies on a statement therein to support his first separate defense. The sixth separate defense, is, therefore, sham on the face of the affidavits. Furthermore, the defendant makes no mention of this defense in his brief and it may be considered as abandoned. It will be stricken for both of these reasons.

The seventh separate defense alleges that “plaintiff has failed to comply with the provisions of the statute in such case made and provided (R. S. 2 :65-l, et seq.; N. J. S. A. 2:68—l, et seq.) The motion is to strike this for obscurity and uncertainty in meaning presumably involving rule 39 of this court, N. J. S. A. Til. 2. Also as sham in so far as intended to allege that there are provisions of R. S. 2:65—1, et seq., which plaintiff is required to comply with as a matter of law but has failed so to do.

The defendant not only makes no mention of this specific defense in Ms brief, but therein concludes on pages 13 and 14 “that the motion to strike the second, third, fourth, fifth and eighth separate defenses should be denied,” ignoring the sixth and seventh defenses entirely. Both of these defenses may, therefore, be considered as abandoned. Furthermore, the seventh separate defense in its present form is so obscure and uncertain as to present no facts upon which a definite, concrete issue may be properly joined and is, therefore, violative of the above mentioned rule of this court.

The seventh separate defense will, therefore, he stricken for the reasons above expressed.

Since the first separate defense, involving the question of the .payment by the defendant of interest on the bond in question within the limitation period of si-xteen years, cannot, in view of defendant’s affidavit, be stricken as sham, it follows that paragraph 8 of the general answer cannot be stricken as sham as it involves in part the same question.

Unfortunately a typographical error makes the latter part of this paragraph read “no payment on account of principal and interest on said bond was ever made by plxmdifObviously the party intended to be thus referred to is the defendant, and apparently the plaintiff was apprised of this before the motion was brought on for hearing. This paragraph of the answer will not, therefore, be stricken for “obscurity and uncertainty in meaning” or as sham as claimed in the notiee of motion, but may be amended by substituting the word “defendant” for that of “plaintiff” in the place above indicated.

Ho costs will be allowed on this motion and a form of order may be presented in accordance with the conclusions herein expressed.