author: Jess, J.

text:
    LOTTIE JARVIS, ADMINISTRATRIX, ETC., OF THE ESTATE OF HENRY L. JARVIS, DECEASED, PLAINTIFF, v. BRAZIL JOHNSON, DEFENDANT.
    Negligence — Death Act — Objection of Defendant that There Was No Cause of "Action, Since Under Death Act Action Must Be Brought by Administrator ad Prosequendum— Plaintiff Having Brought Suit As Administrator, &c., Obtained Letters ad Prosequendum the Same Day of Coming Suit, and Asked to Amend Complaint — Held, that the Fact that Plaintiff Was in Fact Administrator ad Prosequendum, Entities Her to Maintain Suit, Having So Qualified Retires the Statutory Period of Two Years’ Limitation.
    On action at law. On motion to amend complaint.
    For the motion, Charles E. Coolc and Thomas Herbert Brown.

      Contra, Edwards <£• Smith.

   The opinion of the court was delivered by

Jess, J.

This suit was brought to recover damages for the death of the plaintiff’s intestate. The decedent, Henry L. Jarvis, same to his death as the result of an accident happening to the automobile of the defendant in which Jarvis was riding. The accident occurred on February 1st, 1923. The summons in the suit was tested on June 12th, 1923.

The complaint sets forth that the suit is brought by Lottie Jarvis, “administratrix, &c., of the estate of Henry L. Jarvis, deceased.” ■

The defendant, Brazil Johnson, filed an answer in which he gave notice that he would object at the trial that the complaint failed to set forth a cause of action.

The cause came on for trial at the April term, whereupon, relying upon the notice given in his answer, defendant moved for a nonsuit on the ground that under the provisions of the Death act (2 Comp. Stal., p. 1907), as supplemented by the act of 1917 {Pamph. L. 1917, p. 531), the action was maintained only by an administrator or administratrix ad prosequendum.

The fact is that the plaintiff is administratrix ad prosequendum of the deceased, letters having been granted to her in that capacity bjr the surrogate of Monmouth county on June 12th, 1923.

Plaintiff now seeks to meet the objection on which the motion to nonsuit is based by amending her complaint so that it will explicitly appear on the face thereof that she sires as administratrix ad prosequendum. Assuming that the character in which she sues must be set out in her complaint, the pleading is defective in that respect. The question is whether an amendment now is permissible under the circumstances of this case. I think it is.

This is not a situation where the suit was brought by one not possessing the requisite statutory qualification. The plaintiff is the administratrix ad prosequendum. If she were not, she, of course, could not maintain this suit. Nor could she now acquire a status to proceed with the action for the reason that the,two years’ limitation within which such an action may be brought under the Death act has expired. But her right to sue was acquired when she qualified as administratrix ad prosequendum and her suit was commenced within statutory time. She did not lose the right to continue the suit because of her failure to set out with complete phraseological accuracy in her complaint the character in which she sued. The amendment which she seeks to make would not create and institute a new suit, with a new question and in a controversy between different parties. Neither will it in anywise prejudice the defendant in his defenses. The amendment will simply set forth the capacity in which the plaintiff sues in accordance with the fact as it existed at the time the suit was instituted, and which fact is stated, not inaccurately, but merely inadequately, in the complaint as it stands. I can conceive of no case which would come more clearly than this within the contemplation of the liberal provisions of our Practice act as to amendments of pleadings.

I have not reached this conclusion without careful consideration of the cases cited by counsel in opposition to the motion.

The complaint may be amended as herein indicated.


source: Caselaw Access Project

author: Jess. J.

license: Public Domain

text:
    FIRST NATIONAL BANK OF BELMAR, PLAINTIFF, v. W. H. CARPENTER ET AL., DEFENDANTS.
    Negotiable Instruments — Protest of Note — Notice—Endorser Having Died, Personal Representative Claimed No Notice of Protest Was Sent Him — Notary Did Not Know of Death of Endorser — Cashier of Bank, To Whom He Inquired, Gave Endorser’s Address During His Lifetime, to which Notice was Sent, But Did Not Tell Notary of Endorser’s Death— Held, that Proper Notice was Given, that the Due Diligence Required by the Act is that of Notary, and Upon that the Holder May Rely — Judgment for Plaintiff.
    For the plaintiff, Arthur M. Birdsall.

    For the defendant, Harry V. Osborne, administrator pendente lile; Orborne, Cornish .& Rcheck.

   The opinion of the court was delivered by

Jess. J.

This case was tried without a jury. The suit is on two promissory notes made by W. H. Carpenter and endorsed by James G-. Barnett. One note is for $2,000, is dated December 8th, 1922, and payable three months after date. The other note is for $3,500, and was payable three months after its date of December 18th, 1922.

Both notes were made payable at the First National Bank of Belmar, New Jersey. The notes were discounted by that hank and the proceeds credited to the account of Barnett, the endorser.

Barnett died on January 14th, 1923, and his wife qualified as his executrix January 29th, 1923.

The notes were duly presented at the hank for payment at the date of their respective maturities. Payment was refused in each case because of lack of funds, and each note was duly protested. Notice of protest was mailed to the addresses of the maker and endorser.

The administrator pendente lite of James G. Barnett denies liability of the estate of his decedent on the two notes, for the reason that notice of their protest was not mailed to the personal representative of the endorser. He relies upon the provisions of section 98 of our Negotiable Instruments act. Comp. Stat., p. 3746.

That section reads as follows: “When any party is dead, and his death is known to the party giving notice, the notice must be given'to-a personal representative, if there be one, and if, with reasonable diligence, he can be found;, if there be no personal representative, notice may be sent to the residence-or last place of business of deceased.”

Notice of' the protest of the notes in suit was not given to the personal representatives of the deceased endorser, Barnett.

The notary, who was the assistant cashier of the Belmar bank, testified that he did not know of the death of Barnett when he mailed the notices of protest; that he inquired of the cashier of the bank and was informed by him that Barnett’s address was 63 Lincoln Park, Newark, New Jersey, and that he mailed the notices to that address.

The cashier testified that he had read in a newspaper a repor.t of the death of Barnett before the notices of the protest were mailed. That fact was not brought to the knowledge of the notary.

Upon these facts I find that, in the giving of the notices of the protest, there was a compliance with the requirements of section 98 of the Negotiable Instruments act.

The reasonable diligence required by that section is that upon the part of the notary giving the notice, and upon that the holder of the note is entitled to rely. Second National Bank of Hoboken v. Smith, 103 Atl. Rep. 862.

The plaintiff is entitled to judgment against both defendants for the amount of each note, together with.interest and protest fees.


author: Lloyd, J.

text:
    MAY L. QUINLAN, PROSECUTOR, v. CHARLES CROSS ET AL. AND BOROUGH OF FAIR HAVEN, RESPONDENTS.
    Decided August 1, 1925.
    NOTE — This case was inadvertently included in the Advance Reports on page 1341. It should have been among the Miscellaneous Reports, and is now so included.
    Municipalities — O rdi nances — Sidewalks—Assessments)—Contract Let Without Advertising and With Other Irregularities— Municipality Claims the Plaintiff, Though Cognizant of the Work Being Done, Took No Action to Arrest Proceedings Until Completion — Justice and Equity Obliged Plaintiff to Act Upon Learning of Contemplated Action and Not Wait Until Large Sums of Money Had Been Expended.
    Eor the prosecutor, N. Louis Paladean, Jr.

    Eor the respondents, Wilson & Smock.

   The opinion of the court was delivered by

Lloyd, J.

This was a certiorari granted to bring before the court the contract and assessment made in pursuance of an ordinance for the laying of sidewalks and curbing on Pearl street and Eairhaven road, in the borough of Eairhaven. The contract was made with James Norman & Sons, contractors, at the rate of twenty-two cents per square foot for sidewalks and fifty cents per lineal foot for concrete curbing. This contract was evinced by a short correspondence between the parties. The sidewalks were laid but the curbing was not laid. The bills for the entire work on the sidewalks for $3,358.30 was paid by the borough. The grounds upon -which it is sought to set aside the contract and assessment are substantially that the contract was let without public advertising, and, being in excess of $500, was under the provisions of the Home Rule act of 1917 illegal; that no specifications for the work were given; that no notice was given to the prosecutor of any proceedings to impose assessments for benefits according to law; that the contract if valid was an entire one, and that no assessment conld be legally made for the sidewalk alone and until the curbing was láidj and, finally, because no moneys were appropriated or available at the time of the awarding of the contract, nor was any ordinance passed authorizing the improvement and levying of the assessment on the propertj'- by the prosecutor. Substantially, these averments are admitted by counsel for the respondents, but it is claimed that the prosecutor has debarred herself from favorable action from the court by reason of laches in that she was cognizant of the improvement; that she piade no objection during the progress of the work, and that by her silence she acquiesced in the improvement.

The question for solution is therefore reduced to the single proposition (assuming the irregularities, and these were certainly flagrant), is the prosecutor in any position at this time to question the validity of the contract and the assessment thereunder on her property ?

It appears from the proofs that the prosecutor, while eognizant of the steps that were being taken, took no action looking to the arrest of the proceedings under the ordinance and the improvement until after the entire work had been completed and was in use. I think under the authorities, and under all principles of justice and equity, she was obliged to act promptly upon learning of the contemplated action, and not to permit the expenditure .of large sums of money and the commitment of the municipal authorities to a course of action which entailed great burden and expense upon it if she were going to attack the validity of the contract and the subsequent action thereunder. The authorities dealing with the question of laches under such circumstances are numerous and. in no uncertain voice. They declare that one situated as the prosecutor cannot sit idly by and observe such improvements without thereafter being estopped from complaining. Cunningham v. Borough of Merchantville, 61 N. J. L. 466; Glass Works v. Glassboro, 79 Id. 352. The case of Schumm v. Seymour, 24 N. J. Eq. 143, cited by the prosecutor, dealt with the case of fraud on the part of the municipal authorities, and relief was accorded to the complainant on that theory. In the present case there is no suggestion of bad faith.

In this case, if the proceedings were not set aside, it would work an injustice upon the municipality and an equal one upon property owners, who would bear an unjust assessment, and, as was said in Glass Works v. Glassboro, supra, “the writ may be refused when it appears that the public interest will suffer or private injustice will be done. If the prosecutor suffers the public work, on account of which his property may properly be assessed for benefits, to proceed for several weeks without applying for his writ, and only applies after the work is nearly completed, at a large expenditure of public moneys, the writ will be refused, or, if allowed, will be dismissed when these facts are brought to the attention of the court.”

AYlien the writ was allowed in this case it was stipulated by counsel that I should hear the case as and for the Supreme Court sitting in one of its branches.

Haring reached the conclusion that the proceedings should not be disturbed, the writ will be dismissed.


author: I\ ocher, Advisory Master.

text:
    Essex County Orphans Court.
    In the matter of the estate of George Dillon, deceased.
    Wills — Probate—Question When Will was Executed — Both Witnesses that the Entire Transaction was Completed in Room in which it Begun, the Only Question Being in which Room it was — Alleged Lack of Testamentary Capacity Considered and no Evidence Found to Support the Charge — Alleged Undue Influence Considered, and Found Unfounded.
    On appeal from probate.

      Mr. Milton M. Unger, proctor for the appellant.

      Mr. Irving W. Teeple, proctor for the defendants.

      Mr. J. Bradley Scoli (of the New York bar), proctor for a legatee.
   I\ ocher, Advisory Master.

The last will and testament of George Dillon, late of the county of Essex, who died on the 24th day of November, 1924, was duly admitted to probate by the surrogate of the said count}' on the 5th day of December, 1924. In and by said will, after making two bequests of $500 each, testator gives and bequeaths all the rest, residue and remainder of his estate to his sisters) Margaret Tipton, Mary Palmer, Ella Mantz and Julia Dillon, appointing his attorney, Roy E. Dunn, the sole executor thereof. Testator left him surviving a widow, but no children, or the descendants of any deceased children. A petition of appeal from the order of the surrogate admitting the said will to probate was filed by Carrie E. Dillon, the widow of the testator.

The first point made by appellant is that the will was not executed according to law.

The will was drawn by Roy E. Dunn, testator’s attorney, for a period covering at least several years, and was witnessed by the said Roy E. Emm and one Edward Goerke, Jr., who witnessed the will at the request of Mr. Dunn. At the time of the execution of the will the. testator was in St. Barnabas’ Hospital, and Mr. Dunn testified that when be arrived at the hospital, with.Mr. Goerke, he found the testator in his own room, and that, to the best of his recollection, they were cleaning the room, or doing something to it, and the testator took Dunn and Goerke, the two witnesses, to another .room. Dunn testifies unequivocally to all of the facts necessary to constitute the valid execution of the will. Mr. Goerke also testified to all of the facts required by law to constitute the execution of a valid will. He, however, stated that to the best of his recollection the will was executed in the testator’s own room, and that they did not leave that room during the execution of the will, so that the only conflict in the testimony is as to whether the will was executed in one or another room.

The will contains a perfect attestation clause, and it is well settled that on proof of the authenticity of the signatures of the subscribing witnesses the facts stated in the attestation (danse must be accepted as true until it is shown by affirmative proof that they are not. Farley v. Farley, 50 N. J. Eq. 434. It is further settled that if the attestation clause is perfect, and one of ihe attesting witnesses corroborates its accuracy, the testimony of the other attesting witness suggesting doubt or his want of recollection will not justify denial of probate. McCurdy v. Neall, 43 N. J. Eq. 333.

In the case under consideration both witnesses testified that the entire transaction was completed in the same room in which it was begun ; that neither person left the room during the execution of the will; the only difference being as to in which of two rooms the will was actually executed. -It is perfectly apparent that this will not invalidate the execution of the will, for whichever witness is correct, his testimony supporting the attestation clause is sufficient to constitute a valid execution.

Another point raised is the lack of testamentary capacity of the testator. It will be necessary in this connection to examine rather minutely into the history of the testator’s physical condition.-

Dr. Theodore Teimer testified that on July 16th,- Í923; the testator called at his office, and that he made a thorough examination of him. He found that he had lost one leg and was suffering from diabetes and tuberculosis of the lungs, and he advised him to go to the Presbyterian Hospital, where he could have better treatment than at home. He remained in the hospital two weeks, and gained ten pounds, and was greatly improved ■ in health. Testator kept coming to the doctor’s office from time to time to the end of October of the same year. When asked if he had observed the mental condition of the testator during that period, the doctor replied: “Yes, of course. Q. Now, how did he-act? A. Well, he did not act anyway -abnormal. He acted perfectly normal, like anyone -would be.”

In October, 1923, the testator, with his wife, went to Elorida, and after his return, on April 26|h, 1924, he consulted Dr. Clarence Bumstead, who testified that Mr. Dillon first consulted him in the early part of May, 1924, and that he found that -he was suffering from an advanced case of tuberculosis and diabetes, and suggested that he go to St. Barnabas’ Hospital for treatment, which he did; that he remained at St. Barnabas’ Hospital for seven weeks, where he saw the testator every day; that the tuberculosis became worse, and that in the middle or latter part of June, 1924, he suggested that the testator be removed to the Yerona, Essex county, Sanitarium, which was done. Dr. Bumstead, upon' being asked as to what testator’s mental condition was, replied that it was that of a perfectly normal man. He further stated that he • was so normal • that he never gave his mental condition a- thought. Upon cross-examination the doctor added that, as he had said before, he directed no more special attention to. Mr. Dillon’s mental condition than he had to that of the cross-examiner.

On June 20th, 1924, the testator was admitted to the Yerona, Essex county, Sanitarium, and Dr. Bennett,- of that institution, stated he- found, after an examination of him, that he had pulmonary tuberculosis, an advanced' case, and he also had a complication of diabetes at the time; that-he saw him practically every day during his stay at Verona. Asked in regard to his mental condition, he said, “I did not notice anything that was not all right.” Asked if he appeared to be normal, he replied, “Yes, normal condition.” Testator left Verona on September 25th, 1924, and again consulted Dr. Teimer, who testified that he found that he was in a rundown condition, the diabetes had become very had and his tuberculosis had made great headway, and advised him to enter the city hospital, which he did, and on September 26th, 1924, Dr. Teimer further testified that he attended him up to 1 he end of his illness; that he was a very quiet and intelligent observer of everything that was going on, and that his mental condition was always perfect, indeed. When asked, upon cross-examination, what the mental condition of testator was before he went south, the doctor replied: “Well, intellectually, it was very good. He was a good, keen observer.” Lydia Dieffenbach, a nurse connected with St. Barnabas’ Hospital, lestified that she recalled Mr. Dillon, and that she attended him from May 3d to May 7th, 1923, and when asked what she noticed about him, replied that ‘die was aloof; he was suspicious of everybody; he made no friends between patients, or nurses, or doctors, and kept to himself.” Asked if she observed any peculiarities in any direction, she replied, “None, except that he just acted queerly; he would walk up and down the corridor in May with his overcoat on. That was the most pronounced peculiarity.”

In a recent case it was held that “the standard of testamentary capacity has been properly fixed at a very low point in the scale of intelligence. The right of a testator, however feeble his powers of mind or body, to the control of Ms property by testamentary disposition, so long as he has intelligence io exert it. has been, by the courts of this state at least, inflexibly maintained. It is right that it should he so.” In re Shimer’s Will, 103 Atl. Rep. 383. This principle is so thoroughly sustained by a multitude of decisions of our courts that it is unnecessary to cite further authorities.

It will he observed that the testimony as to testator’s testamentary capacity starts from July 16th, 1923, almost one year .prior to -the .execution of .the.will, and continues to the time of his death, and that .there is nothing to even suggest an abnormal condition, except the testimony, qf the nurse in St. Barnabas’-Hospital, who said that she thought, he was queer because he did not. mingle with the other patients and wore an overcoat during the, month of May in the corridors of the hospital. There was also introduced into evidence by the appellant a number of letters,, written by the. testator to Mrs. Dillon from .the .Verona Sanitarium, during the. period of Mrs. Dillon’s .absence on a visit.. These letters are straightforward-and show the operation of an intelligent-mind.

At the conclusion of this testimony I felt that there could be absolutely no question as to the testator’s having; fu.ll mental capacity, and when counsel for the appellant, requested a further adjournment.for the purpose of producing the testimony of Dr. Dunham,. the superintendent of the Verona, Essex county,-Sanitarium, the-application was denied, for the reason that, in the first place, his testimony could not shake the abundant testimony of the various physicians as to his mental condition, and, furthermore, that he, being the superintendent of the institution, would know infinitely less about the patient’s condition than would the attending physician, who saw the patient day by day, and whose testimony was taken. . ■ •

The remaining point to be considered -is whether the will was the product of undue influence, exercised, it is claimed, during the course of the hearing, by testator’s sisters, and upon appellant’s brief by Boy E. Dunn, who drew the will.

Mr. Dunn testified that he became acquainted with the testator in 19Í7, and later became an intimate acquaintance, which'continued to the time of his death; that on May 5th, 1933, Mr. Dillon called him on. the telephone from St. Barnabas’ -Hospital and requested him to come, to the hospital to prepare a will; he went to the hospital on the same day, and obtained the data for the,will from Mr..Dillon, and .on the 6th of May,, he having, in the meantime, had the draft of the will reduced to typewriting, went .to the hospital with his friend Goerke^ where the will was executed.

He also stated that he had prepared an earlier will for Mr. Dillon, dated January 11th, 1923, in which will one-fifth of the residuary estate was given to testator’s wife and the remainder divided among his sisters, which will was introduced in evidence; that at the time he prepared the last will, from which Mrs. Dillon was excluded, he asked Mr. Dillon whether or not he did not wish to include his wife in the will, and he stated that he did not, and the will was drawn in accordance with his wishes, excluding the wife from participation therein. lie further testified that he visited Mr. Dillon from time to time at the various hospitals where he was confined, with the exception of Verona, but at no time subsequent to the execution of the last will of May 6th, 1924, was there any conversation between them with regard to the will. Asked whether Mr. Dillon had told him of any reason why he was excluding his wife, Dunn replied that Mr. Dillon had been constantly complaining of the conduct of his wife toward him; that she treated him unkindly and did not care for him as she should. In fact, he testified that during his entire acquaintance with Mr. Dillon he had been complaining of the conduct of his wife toward him, and at one time conferred with him as to procuring a separation from her.

There can be no doubt that at least up to the'time when the Dillons went to Florida the relations between them were strained. Mrs. Dillon testified that one reason for these strained relations was that her husband was infatuated with another woman and continued to be so down to the very end. She also testified that in 1922, after a controversy between herself and Mr. Dillon, he destroyed a will which was favorable to her. Another source of friction occurred in August, 1923, when Mr. Dillon was about to sell certain real estate which he owned and requested that’his wife -join-in the deed with him. She refused to do so unless she renewed one-half of the proceeds of the salé, which she, iar fact, did receive. In extenuation of this act upon her part, she stated that she gave to her husband the money with which he got his start, and that without her money he would never have gotten anywhere, or words to that effect. She stated that she had received 'a legacy of $5,000-, and, that it Was from the money so received that she obtained the money to give- her husband a start, as she-called it. There is no proof as to the amount of money she gave him, and her testimony to this effect stands unsupported. Mrs. Dillon further testified that subsequent to this transaction, which occurred in the office of Mr. Dunn, who was acting for her husband, that Mr. Dunn became hostile to her. Asked as to how that hostility was evidenced, she replied that he was not as cordial as he had been' before, but that is as far as the testimony goes in regard to the hostility between Dunn and Mrs. Dillon, and it is to be here observed that Mr. Dunn received no benefit under the will except his appointment as executor, and, in view of the fact that he had been the- attorney of Mr. Dillon for sevéral years, and of the further fact that he had drawn testator’s previous will', wherein he had also been named as executor, it was quite natural for the testator to turn to him in seeking an executor.

As to any connection or relations of any character between Mr. Dunn and the favored beneficiaries under the will, none appears in the testimony, and the testimony is barren of any evidence tending to show any attempt on their part to exercise any influence upon the testator.

There is one inexplicable feature in this case. Reference has heretofore been made to letters in evidence which had been sent by Mr. Dillon to his wife during the time that he was at Verona. ' These letters, as has already been stated, were intelligent and disclosed an apparent affection on the part of Mr. Dillon for his wife. We have, too, the conduct of Mrs. Dillon while Mr. Dillon was at the city hospital. She testified that she attended him -constantly there, took him delicacies of one kind and another, and other witnesses testified that he thought very kindly of her, and that when she did not call upon him at the times when he expected her that he displayed impatience at her not coming, and expressed his desire to see her. ■ On the other hand, Dunn testified that while all df this was going on testator was ’ complaining to him of his wife’s actions toward him. The only solution of this problem is that testator was unable to .forget his past grievances against his wife while accepting and welcoming her present attentions.

It is well settled that the influence, which the law denominates as undue, must be such as to destroy the free agency of the testator and amount to moral or physical coercion. It must be proved, moreover, that the act done was the result of such coercion. There must be a control exercised over the mind of the testator or an importunity practiced which he could not resist or to which he yielded for the sake of peace. Fritz v. Turner, 46 N. J. Eq. 515 (at p. 517) ; reversed, 49 X. J. Bq. 34$, on the ground that the parties did not have a full and proper hearing in the court below. There are many other cases supporting this principle. The case above cited, however, appears to state the principle more fully and completely than any other case.

Testator, apparently, during the last few years of his life, had the fixed testamentary determination that his sisters should share largely in his estate. It will be remembered that in the will of January 11th, 1933, he gave his wife only one-fifth of his property-, dividing the rest among his sisters, and the testimony is barren of any hint that his sisters attempted in anywise to influence him in regard to the manner in which he should dispose of his property. As a matter of fact, the wife was unfriendly with his sisters, who testified that the reason for the unfriendly relations existing between them was the manner in which Mrs. Dillon behaved towards her husband. There can be no doubt that hostile relations existed between husband and wife as late as August, 1933, when she pursued the very unwifely conduct of refusing to join in the deeds conveying his property unless she received one-half of the proceeds. Later on, in October of the same year, they went to Elorida. As to her conduct toward her husband while in Elorida, we have no evidence except her own and that of Elias Yan Horn, who visited them four times while in Elorida, and who testified that most cordial relations existed between them. It may be that the solution of the whole difficulty in regard to the change in her conduct towards him, which occurred after his return from Florida in a weakened and feeble condition, was dne to the fact that appellant, realizing his condition, and that he had not long to live, sought to ingratiate herself into his affections in the hope that he might forget what had gone by, and make a will in her favor; in fact, in one of the letters which he wrote to her while at Verona he used words to the effect that he thought that their past differences had been perhaps fifty-fifty, and that the past should be forgotten. It may also- be that he intended to make a new will, as is suggested by some of the testimony, favoring his wife. The fact is that he did not.

Applying the rule laid down in Fritz v. Turner, supra, it must be perfectly apparent that the case is barren of any testimony even tending to show undue influence on the part of either Mr. Dunn or testator’s sisters. While it may' be contended that confidential - relations existed between Mr. Dunn and the testator, he not being the favored beneficiary under the will, and there being nothing to connect hinr with the interests of the favored beneficiaries,. the doctrine laid down in Spark's Case, 68 N. J. Eq. 242, cannot be invoked. 4 Comp. Stat. p. 5862 § 4, provides that if any person taking any interest • under a will witnesses it, that he shall forfeit his legacy, and it is settled law that the fact that a witness to a will is also named therein as executor, does not confer upon him such an interest under the will as to deprive him of the right to qualify as executor of said will. It must therefore follow that the fact that Dunn was named as executor in the will does not confer upon him the standing of a favored legatee in the sense in which that phrase is used in Spark's Case,' supra.

At the conclusion of the testimony proctor for appellant requested an adjournment fox the purpose of producing witnesses to prove the exercise of undue influence upon the testator, but admitted that he'was not familiar with what his witnesses would’ testify to. An adjournment was therefore taken to enable him to interview his witnesses.' A féw days later he informed me that he did not wish to call any other witnesses.

I will advise an order dismissing the appeal.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    COLUMBUS LUNSFORD, PETITIONER, v. THE FORD MOTOR COMPANY, A CORPORATION, RESPONDENT.
    Uncorroborated Testimony — Evidence Tended to Show Employe Was Not Working on Day of Accident.
   i¡í i'fi ❖ ❖

2. The petitioner gave testimony to the effect that, on the 14th day of December, 1923, while working for the respondent, and while leaving a box ear, he fell, striking his.back, causing injnries .to that region of the body which has caused him disability up to and including the present time. This testimony was not corroborated by any other witnesses.

3. Testimony was given by the foreman nnder whom Columbus Lunsford, petitioner, was working at the time of the alleged accident, he testifying that at no time did he see, nor did Columbus Lunsford, petitioner, report to him, an accident of any description. He further testified that he was not working for the Ford Motor Company, respondent, at the present time. That he was working for the same company that Colnmbns Lunsford, petitioner, is working for at the present time. Colnmbns Lunsford is doing manual labor, and from his observation there is no apparent disability.

4. The testimony of petitioner’s foreman is corroborated by the workmen with whom petitioner was working on the date of the alleged accident. The records of the Ford Motor Company did not show petitioner to he working on the day he claims to have had the accident and sustained the injury.

DETEKmNA TTON.

1. After hearing the testimony of the petitioner and the witnesses produced by the respondent, I am of the opinion that petitioner did not sustain an accidental injury while in the employ of the Ford Motor Company, respondent, and that testimony shows employe was not working on the date he alleges to have had the accident, and if he had any disability while with the Ford Motor Company, respondent, this disability was caused by conditions not caused by an accidental injury. Further reason is that testimony given by both the petitioner and respondent clearly shows that petitioner did not sustain an accidental injury while in the employ of the respondent.

It is therefore ordered on this 6th day of May, 1925, that the petition herein be dismissed and that no award be made for compensation, and no counsel fee be allowed the attorney for the petitioner.

Harry J. Goas, Deputy Commissioner of Compensation.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    EMMA G. LUTES, PETITIONER, v. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, RESPONDENT.
    interstate and Intrastate Commerce — Circumstances Under Which Injury Was Received Reviewed — Statement of Law Regarding Limitations Between Interstate and Intrastate Commerce.
    For the petitioner, Arthur Lovell.

    For the respondent, DeYoe Tomlinson.

   sji >;< t[i jjs % # # #

Decedent was a trainman or flagman in the employ oí the respondent, and was a member of the crew of freight train EQ-3. The accident, which resulted in the death of the decedent, occurred in the Elizabethporl yards of the respondent railroad company. At such time the decedent was riding on a caboose and was on his way to his train, which was loaded and ready to start out as soon as the engine of said train should be attached to the head end thereof and the said caboose, on which decedent was riding as aforesaid, should be attached to the rear end thereof. The decedent received the injuries in question by falling under the wheels of such caboose while stopping or alighting therefrom.

The decedent was going to said train EQ-3 for the purpose of performing his duties in connection therewith. His first duty in connection with such train was to inspect the train, which inspection consisted in looking at the brakes, looking at the air hose, and generally in ascertaining and determining whether or not the train was safe to operate. After having performed such duty and work of inspection, his subsequent duties were those of an ordinary brakeman and flagman, i. e., performing the work of flagging the train, of signaling, of applying the brakes whenever required, and generally in performing all duties required of an ordinary trainman with reference to the operation of a freight train.

Train EQ-3, pi which decedent was a member as aforesaid, ran between Elizabethport, New Jersey, and Asbury Park, New Jersey, and neither the decedent nor any other member of the crew was-required to go outside of the State of New Jersey in the performance of his duties in connection with said train. However, said train EQ-3 contained, not only intrastate freight, i. e., freight originating within the State of New Jersey and destined to points within the State of New Jersey, but also interstate freight and interstate cars, i. e., shipments and cars originating without the State of New Jersey and destined to points within the State of New Jersey, and shipments and cars originating within the State of New Jersey and destined to points without the State of New Jersey.

In this proceeding the burden was, of course, upon the petitioner to pro.ve affirmatively that at the time of the accident the decedent, Lutes, was engaged in intrastate commerce. Carberry v. Delaware, Lackawanna and Western Railroad Co., 93 N. J. L. 414; Lincks v. Erie Railroad Co., 91 Id. 166. The petitioner, however, not only failed to prove such engagement in intrastate commerce, but the evidence showed that' at the time of the accident the decedent was engaged in interstate commerce. Although the specific train on which decedent was employed was not to go outside of the State'of New Jersey, yet such train contained interstate traffic, and, .since it contained such interstate traffic, it was, consequently, engaged in interstate commerce. It is immaterial, therefore, that the train also contained intrastate traffic,, and .was therefore also engaged in intrastate commerce, for .if there is an element of interstate commerce in a traffic or employment, that determines the remedy of the employe. Philadelphia and Reading Railway Co. v. Polk, 256 U. S. 332: Philadelphia and Reading Railway Co. v. DiDonato, 256 Id. 327; Pederson v. Delaware, Lackawanna and Western Railroad Co., 229 Id. 146. This principle was well illustrated in the case-of Northern Pacific Railway Co. v. Washington, 222 Id. 370, where the court said, inter alia:

“The train, although moving from one point to another in the State oí Washington, was hauling merchandise from points outside of the state destined to points within the state1 and from points within the state to points in British Columbia. * * * This transportation was interstate commerce, and the train was an interstate train, despite the fact that it may also have been carrying some local freight.”

The fact that the decedent had not yet actually reached his train is immaterial. At the time of the accident he was in the yard of the respondent on his way to his train, which he was to board in said yard. In this connection, therefore, the instant ease is controlled by Erie Railroad Co. v. Winfield, 244 U. S. 170 (at p. 173), wherein the United States Supreme Court said, inter alia:

“In leaving the carrier’s yard at the close of his day’s work the deceased was but discharging a duty of his employment. See North Carolina Railroad Co. v. Zachary, 232 U. S. 248, 260. Like his trip through the yard to his engine in the morning, it was a necessary incident of his day’s work, and partook of the character of that work as a whole, for it was no more an incident of one part than of another. His day’s work was in both interstate and intrastate commerce, and so, when he was leaving the yard at the time of the injury, his employment was in both. That he was employed in interstate commerce is therefore plain, and that his employment also extended to intrastate commerce js, for present purposes, of no importance.”

Since the decedent was engaged in interstate commerce at the time he met with the injuries which resulted in his death, the provisions of the New Jersey Workmen’s Compensation act can have no application, and the workmen’s compensation burean has no jurisdiction. Rounsaville v. Central Railroad Co. of New Jersey, 90 N. J. L. 176; New York Central Railroad Co. v. Winfield, 244 U. S. 147.

The petition should, therefore, be dismissed.

* * * ******

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    G. TERRELL, PETITIONER, v. WARNER SUGAR REFINING COMPANY, RESPONDENT.
    Failure to File Petition Within Statutory Time.
   Hi H< i'.i Hí ❖ H< H< Hi Hi

The petitioner was rejiresented by Attorney George E. Hall and the respondent by Attorney Eichard W. Baker. It was agreed that the accident happened on January 28th, 1923, and that the petitioner had returned to work oil March 18th, 1924, and that he had been paid compensation up to that date. It was further agreed that the formal petition had not been filed until March 19tli, 1925, more than one year after the last payment of compensation.

It was argued on behalf of the petitioner that the failure to file the petition sooner was because of a mistake on the part of the secretary in the office of the attorney for the petitioner, and that this should not bar the petitioner in his claim.

However, after considering all the facts in this case, it appears clear that the terms of the Compensation law in regard to the statute of limitations are mandatory, and, therefore, that under the facts of this case the petition should be dismissed as not having been filed within one year after the accident or within one year after the last payment of compensation.

Accordingly, it is hereby ordered that the petition be dismissed, without costs to either party.

.Chablbs E. Gobbi,nt, Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    CLARA G. SODEN, PETITIONER, v. PUBLIC SERVICE TRANSPORTATION COMPANY, RESPONDENT.
    Death to Employe i,n' Railrpad-.Motpr Vehicle Collision — Question Whether Deceased Was at His Employment at Time of Accident — -Employment Held to Begin When Employe Becomes Subject to Employer’s Orders — Other' Contentions of Respondent Considered and- Dismissed.
   This is a workmen’s compensation case, the facts of which may be briefly, stated as follows:

Raymond Soden left his home as usual at five-fifteen a. m., August 7th, 1924, and he reported for duty at the Scuyler street garage of the Public Service Transportation .Company, as usual, for. orders... Charles R. G-uyer, whose duty it is to assign the-men to their various runs, directed Soden and three other chauffeurs to go with Thomas Miller, who was ordered by Guver to take the four men in one of the company’s automobiles to the French street garage, approximately one-half mile distant, where each man was to sucure a bus and drive it back to the. Scuyler street garage. . .This was at five forty-two a. m. Miller drove the car to French street, but instead of turning in where he should, in order to. arrive at the French street garage, he went directly past at a speed of twenty-five or thirty miles an hour, and continued directly on about one and one-quarter miles to the Pennsylvania railroad crossing. He proceeded about one-half mile further-to-a lane, where-he turned the-car-and drove back toward the centre of- town. At the railroad crossing the car was- struck by an engine and Soden and three other men men were-killed. Curtis L. Clark was the only one to survive the accident. Two days after this occurrence Clark made a statement of the various events leading up to the accident to John MacFayden, an investigator for the public service company, to which statements he took his affidavit.

Mr. Tynan, counsel for the respondent, presents several reasons for moving for a dismissal of this claim. First, that Soden was not in the employ of the company when killed. He states that it is a rule of the company that each driver’s pay period begins five minutes before lie is scheduled to begin his regular run from the starting point of that route; that until a driver is assigned a route, and it is within five minutes of his scheduled time for starting on the first run, he is not in the employ oE the company. In this opinion I find myself unable to concur. My reading of the decisions leads me to conclude that one becomes an employe the moment the relation of master and servant become operative. Obviously, the moment one is subject to the orders of the other, this relation is established, and the courts have recognized this by holding the employer as subject to the Compensation act for a reasonable time before* and after the actual money-earning hours of work. The rule of this bureau is in harmony with this, and, in effect, is that an employe is in the course of his employment under the purview of the Compensation act, as soon as he passes onto the property of the employer, for the reason that at that moment he becomes subject to the orders and authority of the master, whereas the moment previous to crossing the property line he is on the public highway and subject to no one*. I am unable to subscribe to the theory that any employer is privileged to promulgate a rule nullifying a rule of the courts. Soden had arrived on the premises where he regularly reported for duty; he had so reported, and he had been given orders. T must therefore conclude that he had entered regularly into his contract of employment.

The respondent next contends that, if Soden was in the course of his employment when he left the first garage, be was no longer in the employ of the company the moment the car proceeded past French street. To analyze this it is to be remembered that Soden, with others, was placed in the care of Thomas Miller, and it was he who was controlling the car, and it became pertinent to inquire if a contract existing between two parties can be broken by the deliberate act of a third person. The question admits of no controversy. The relation of master and servant having been established, I hold it incumbent upon the employer to show that the contract of employment was broken by one of the parties thereto. I am unable to find that the respondent has so shown. I can attach but little weight to the defendant’s contention that, by his act or failure to act, the decedent became a party to the act of the driver of the car. One may ask what one should do upon finding himself carried beyond his intended destination. /Should he immediately jump out, or should he be equally unwise in throwing himself upon the driver to compel him to stop and thereby precipitate a wreck? Any normal person would be apt to sit passive pending an explanation. An inquiry would, of course, be in order, and natural, and we do not know that such inquiry ivas not made. Its absence, however, in my judgment, does not constitute a deliberate act such as to take a person out of the course of his employment.

Testimony on behalf of the respondent was introduced to the effect that John MacEayden, an investigator for the company, prepared a written statement at the bedside of the injured man Clark on the second day after the accident, and it is contended that two of these statements, which were sworn to by Clark, disagreed with his direct testimony as given at this trial. It appears that the day prior to this accident an automobile was struck by a train at the same crossing where this accident occurred, and the written statement sets forth that the men- were all talking about this prior accident when they left the first garage. On the witness-stand Clark denied the correctness of this, testifying that he, himself, was the only one who spoke of it. I am unable to attach any importance to this, inasmuch as it has not been disclosed what was said by the other men. I take it the respondent would have us conclude that the men had agreed among themselves to go out to the 'scene of the wreck. I cannot see how this can be so determined in the absence of any proof whatever.

The respondent also attacks the testimony of Clark on the ground that, in the written statement, he acknowledged that Soden got out of the car at the railroad crossing, whereas at this hearing he maintained that the car did not stop and nobody got out. To me the contention seems irrelevant, and I am of the opinion we should give some weight to the assertion of Clark, that his present statements are the correct ones, and that he was far from normal, mentally, on the second day after the accident, and might easily have erred in signing something written by the company’s investigator.

The respondent further contends this claim should be dismissed, because the crossing of this railroad introduced into the situation a hazard not incidental to this man’s employment. The merit of this argument would be obvious if Soden were the one responsible for -crossing the tracks. However, it has not been so shown. The testimony discloses that the deceased was directed by one in authority to go with Tom Miller, thereby placing him in the care of Miller. This exercise of authority must, necessarily, carry with it a broadening of the hazard to whatever extent the obedience given to this authority exposed the one obeying the order.

Summing up the entire situation briefly, Soden was ordered to do a certain thing, and, in compliance with this order, he came to his death. Is it then possible to say that the authority issuing-the order is without responsibility? I am unable to reach such a conclusion, and I must therefore prepare an order in favor of the petitioner.

A petition having- been filed in the above-stated matter, praying for the compensation to which the petitioner may be entitled by virtue of the terms and provisions of an act of the legislature of the State of New Jersey entitled “An act prescribing the liability of an employer to make compensation for injuries received by the employe in the course of the employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, together with the several supplements thereto and acts amendatory thereof, and a time and place for the hearing of petition having been fixed, and it appearing that said petition and the order fixing the time and place of said hearing have been duly served upon the respondent, and an answer having been filed by the said respondent, and the petitioner and respondent having appeared on the 8th day of April, 1925, the date set for the summary hearing.herein, the petitioner being represented by Joseph H. Edgar and the respondent by Leonard Tvnan, and testimony having been taken-as presented by the parties hereto—

I do find and determine from the evidence and testimony, as follows: .

First. That Raymond Soden, the petitioner, was, on April 7th, 1924, in the employ of the Public Service Transportation Company, a corporation, the respondent, as a bus driver, which employment was subject to the compensation section of chapter 95, laws of 1911:

Second. That on the aforesaid date the petitioner met with an accident arising out of and in the course of the employment, and that intoxication was not the proximate cause of said accident, nor was the injury intentionally self-inflicted.

Third. That the respondent herein had knowledge of said accident within the time prescribed in paragraph 15 of the aforesaid act.

Fourth. That the accident occurred, as follows:

Pursuant to instructions given him by regularly-authorized superior, Raymond Soden entered an automobile owned by the respondent, and Thomas Miller, a fellow-employe, was directed by the same person in authority to drive the auto containing Soden and other employes from the company’s Scuyler street garage to their French street garage. For reasons not established by this hearing, Miller deviated from direct course between the two garages, and, as a result, Miller, Soden and two other employes were killed, when a locomotive of the Pennsylvania Kailroad Company struck the automobile.

Fifth. That the wages of the decedent were $40.95 per week.

Sixth. That the decedent left surviving him his wife, Clara (1. Soden, and a son, John Edward Soden, born May 14th, 1924, who are entitled to compensation.

it is therefore on this 28th day of April, 1925, ordered that judgment final be entered in favor of the petitioner, and that the respondent make payments to the petitioner, as follows:

Compensation at the rate of $16,38 per week, being forty per cent, of the deceased’s wages, for a period of three hundred weeks from the date of the accident. The amount that has become due to the date of first payment shall be paid in one lump sum. After the expiration of the three hundred weeks’ period, compensation shall be paid to the petitioner for the benefit of the son at the rate of $14.33 per week until he reaches the age of sixteen years, on May 14th, 1940.

It is further ordered that the sum of $150 be paid the petitioner by the respondent on account of burial expenses, and a further sum of three hundred dollars ($300) as counsel fee to the petitioner’s attorney.

W. E. Stubbs, Deputy Commissioner of Compensation.


text:
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    SALAMIA FURMAN, PETITIONER, v. JOHN A. ROEBLING’S SONS COMPANY, RESPONDENT.
    Petitioner Must Prove Right to Compensation — No Evidence that Petitioner’s Condition Was Due to injury While at His Employment.
    For the petitioner, Katzmbach & Hunt.

    For the respondent, 'William N. Qooper.

   This is an action brought under the New Jersey Workmen’s Compensation act to determine whether or not the petitioner is entitled to compensation for the death of her husband on July 18th, 1924, as the result of an accident, which, it is alleged, occurred on July 9th. According to Dr. Joseph F. Higgins, who first treated the deceased, the condition in which he found the petitioner’s late husband was most certainly due to trauma. No testimony, however, was presented indicating the nature of, or any accident, nor where or when it was experienced, and there is no evidence to show that any report of an accident was made to the employer, or that the company had any -knowledge of an injury, within the ninety-day period prescribed in paragraph 15 of the law. Furthermore, the testimonji of the widow shows that her husband was, apparently, not feeling well on the day prior to his quitting work, and also on the morning before he went to work on the last day.

Isaac Tantum, the deceased’s foreman, testified that at about nine-fifteen a. m. Mr. Furman told him that he had cramps in his stomach and was going home.

The courts of this state have repeatedlly ruled that it is incumbent on a petitioner to prove his right to compensation, by establishing by acceptable evidence that an accident occorred in the course of the employment, that it arose out of the employment, and was due to a hazard thereof, otherwise an award cannot be given. None of these things has been established in this case. It must therefore, and it is hereby, dismissed.

W. E. Stubbs, Deputy Commissioner of Compensation.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    FRANCIS H. TEWES, PETITIONER, v. SWEENEY-LITHOGRAPH COMPANY, RESPONDENT.
    Petitioner Used His Own Automobile in Respondent’s Business —injured on His Own Premises While Repairing Machine— Injury Not in Course of Employment.
   The above matter' came up for formal hearing on March 4th, 1935, and the petitioner being represented by counsel, and the respondent being represented by counsel, I proceeded to take testimony on behalf of both parties, and the following facts appeared:

1. That on or about the 13th day of September, 1934, the petitioner was employed by the respondent herein.

3. That the petitioner used his own automobile in the business of the respondent, and that the respondent paid the petitioner for the upkeep of the ear and for the repairs necessary to maintaining the car; and that on or about the 13th day of September, .1934, the petitioner, while repairing the spring in the car, sustained an injury to three of his fingers, it appearing that this work was being done on a Saturday afternoon at about three o’clock in the yard of the petitioner’s residence.

DETERMINATION.

After hearing the facts and after hearing the argument of the counsel, I determined that, at the time of the accident, the petitioner was not acting in the course of his employment, nor was he doing any act which arose.out of the course of his employment. The petitioner was a salesman and was hot hired to repair automobiles, and as the accident occurred on a Saturday afternoon, in his own yard, I do not find, as a fact, that he was then and there acting in the course of his employment.

ORDER.

1. It is therefore ordered that on this 24th day of April, 1925, that the petition herein be dismissed, and that no award of compensation be granted nor counsel fee allowed.

Harry J. Goas, Deputy Commissioner of Compensation.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    MARGARET MACIK BY VERONICA MACIK, HER GUARDIAN, PETITIONER, v. HARRIET R. GOELLER, RESPONDENT.
    Employe Whose Death Resulted from Accident Was Divorced from Wife, and Under Court Order Was Paying $10 Per Week for Support of Child — Was Child Total Dependent, Entitled to Thirty-five Per Cent, of Maximum, or Partial Dependent and Entitled to Thirty-five Per Cent, of $10 Per Week — Compromise Agreed to by All Parties.
   A formal claim petition having been filed in the above matter asking for compensation under the terms of the Compensation law of this state, and an answer having been duly filed, the same came on for a formal hearing before me in Newark, on Wednesday, April 29th, the petitioner being represented by Attorney Simon L. Fisch and the respondent by Attorney Richard W. Baker.

The facts of the case were that one George Maeik suffered an injury b,v accident arising out of and in the course of the employment on October 10th, 1924, and, because of this injury, he died on the same date. He left surviving him a widow, Mrs. Veronica Ma.cik, and one daughter, Margaret Maeik, who was born on June 10th, 1915. Mrs. Maeik had, some time previous to the accident, secured a divorce from the deceased, and had been awarded custody of the child, Margaret, and the deceased had been ordered to pay Mrs. Maeik $10 a week towards the support of the child.

The deceased was earning $66 per week at the time of his death, and the attorney for the petitioner claimed that under the terms of the Compensation law the child was a total dependent, and, therefore, was entitled to thirty-five per cent, of the wages, or the maximum of $17 per week, until she become sixteen years of age. The attorney for the respondent, on the other hand, maintained, in the first place, that the child was only a partial dependent, as the mother also contributed to the support of the child something in addition to the $10 per week paid by the deceased under an order of the court, and, therefore, that she was only entitled to $3.50 per week under the Compensation law. He further maintained that, even if it should be proved that it was a case of full dependency, the child would not be entitled to more than she was getting from the deceased at the time of his death under’ an award of the court.

After considerable discussion of the matter it was finally stipulated and agreed between all parties that the case be settled on the basis of an award to the child, Margaret Macik, of compensation at the rate of $13 per week from the •date of the accident on October 8th, 1924, until June 10th, 1931, when she becomes sixteen years of age. It was further stipulated that the respondent would pay $150 for the funeral bill, and that the respondent would pay $125 towards whatever counsel fee was awarded to the attorney for the petitioner. Accordingly, on the stipulation entered into between the parties, I hereby determine that the respondent shall pay to Mrs. Veronica Macik for the minor, Margaret Macik, $32 a week from October 8th, 1924, up until June 10th, 1931. I further order that the respondent pay $150 for funeral bills, and I order that the attorney for the petitioner be paid a counsel fee of $325, $125 of which is to be paid by the respondent and the balance by the petitioner.

Harry J. Goas, Deputy Commissioner.


author: Buchanan, Y. C.

text:
    Max Finegold, administrator, etc., et al., complainants, v. Bessie H. Vredenburgh et al., defendants.
    [Decided August 17th, 1925.]
    Wills — Widow of Testator Elected Under the Will to Take Entire Income From Certain Property — Complainants, Having Contingent Interest Only, Allege That Income Was Not Taken For Her Use, But For That of Her Children Against Complainants’ Interest — Master’s Report Disclosed Irregularities of Defendants, But No Proof That Complainant Has Established Its Case — Affirmative Proof of Use of Funds Necessary — Decree Without Costs For Defendant.
    On .supplemental hearing and motion to confirm master’s report.

      Mr. William LLartshorne and Mr. Holmes 7. M. Dennis, Jr., for the complainants.

      Messrs. Stokes £ McDermott, and Mr. Merritt Lane, for the defendants.
   Buchanan, Y. C.

The facts in the case are for the most part fully set forth in the prior conclusions filed herein. It was determined that the testator’s widow had a legal life estate in the Freehold property, and a life estate in so much of the rents and profits of the Yew York City real estate as she might choose and elect to take for her own support and use — the children having the remainder interest; that the widow had, in fact, chosen and elected to take.the whole of the income from the Yew York City property.

The only question left open was as to the allegation of complainants (the widow and child of one of testator’s children) that such choice and election of testator’s widow to take the entire New York City income, was as to part thereof not for her own support and use, but for the purpose of •turning it over to testator’s other three children in fraud of complainants.

Upon this issue a reference was made to a master to take the detail proofs as to all of the dealings and transactions of .the defendant widow and children in relation to these New York rents — to- ascertain what these rents were and what disposition had been made of them by defendants, or any of them. The evidence taken on this reference has been returned by the master, with an accompanjdng summarizing report. Exceptions to the report were filed by defendants' — • complainants argue for its confirmtaion and for a decree for a money payment to them from defendants.

Concededly, there are some clerical errors in the report which should be corrected, but they are not material in the determination of the cause. The reference to the master was not for an account, but rather for discovery — for the production of evidence solely within the knowledge and control of defendants. Complainants have not sought to compel further discovery,'but ask for entry of final decree.

The matters involved in the evidence were submitted in two sections, so to speak — the first covering May, 1920, to October, 1923, and the second, the continuation down to October, 1924. Inasmuch as considerable complexity and con-fusion arises from this fact — the two briefs and the master’s report not using the same figures, throughout or viewing them from the same standpoint — it will be simpler and sufficient for present purposes to deal with'the figures for the first period. Consideration of the figures as to the second period shows that no different conclusions can be drawn therefrom.

It appears from the evidence that the rental of the New York City real estate was in the hands of the agent employed by testator in his lifetime (this pursuant to suggestion in testator’s-will), that the agent collected the rents, paid insurance, water rents, repairs, &c., and remitted the balance, monthly, not to testator’s widow, but to the executors. The executors did not keep these rents in a separate fund, hut mingled them with the other funds which they properly had as executors, and out of the mingled funds they paid disbursements properly chargeable against decedent’s estate, and also payments properly chargeable against the testator’s widow.

Down to October, 1920, the executors received in this wise a total of $50,917.58. They submitted a statement or schedule of disbursements (Etc. D-38) testifying that it was an accurate statement of disbursements made by them out of these rent moneys, during the same period. This cannot be true, in fact, for the items total $51,626.05.

Of these items of disbursement a total of $13,095 is for taxes and mortgage interest on the New York City property, and a further total of $32,000 for payments of $800 per month testified to have been made directly to- testator’s widow. That this aggregate of $45,095 would properly he payable out of the New York City rents is obvious and conceded. Defendants say that the balance — $5,822.58—of the New York City rents was expended by payments as follows:

Taxes, water rents, insurance and repairs, '¡freehold property................................. $1,690.25

Taxes, water rents, insurance and repairs, Spring Lake property ........................... 761.04

(Rarities (acc. of testator’s widow) ............ 749.75

Taxes and assessments, Elmhurst property....... 970.12

Legal expenses.............................. 1.900.02

Other expenses.............................. 618.59

Total ................................ $6,689.77

Complainants contend that these items are not proper “executor’s expenses.” Of course they are not (with the ex-eeption possibly of a few individual items under “Legal Expenses” and “Other Expenses”), but that is entirely beside the issue. This is not an executor’s accounting, as such. The question is what the defendants have done with the New York City rents (with which, as executors, they were in nowise concerned, but which they did, in fact, receive and disburse), and whether the explanation of how these rents were disbursed is true.

If the net New York City rents went to testator’s widow, they went where they should have gone under her election to take the whole of them; and if she used them for her own support and use, her election to take the whole cannot be deemed .to have been in fraud of complainants. .

The payments under the head of Spring Lake property, Freehold property and charities are equivalent to payments made to testator’s widow, for they are for her benefit and account — she being the owner of the Spring Lake property and the legal life tenant of the Freehold property.

The pajrments of taxes and assessments on the Elmhurst property cannot, however, in anywise be deemed a payment to or for the account of testator’s widow (since she had no interest whatever in the Elmhurst property). The same thing is true as to most, if not all, of the items under “Legal Expenses,” and as to a considerable portion of the items “Other Expenses.” It is not necessary to ascertain the exact figures — let us assume that all of the items under the last two heads are items not for the benefit or account of testator’s widow.

The resultant situation is that defendants have shown (on the evidence thus far considered) that out of the $50,917.58 New York City rents received by them, $13,095 was paid for the upkeep of the New York property, and $35,201.04 ($32,000 plus $3,210.04) was paid to or for the account and benefit of testator’s widow, and that the balance of $1,811.54, which should have been paid to testator’s widow, was (without her authority, so far as appears) paid out to other persons for purposes not chargeable to her.

It further appears in the evidence, however, as to items aggregating $2,000.98, which defendants have herein testified were paid by them out of the New York City rents, they .swore in proceedings in the orphans court that they had paid .these identical items out of the estate funds, instead of the .New York City rents. And it further appears later in the evidence that they testify that payments of items aggregating $2,183.12 were made by testator’s widow, out of the $32,000 received by her as hereinbefore mentioned, in direct conflict with their earlier testimony herein that the same items had been paid by themselves directly; and still later it appears that a payment of $383 herein testified to have been made by the widow out of the $32,000, was made by defendants out of entirely different funds.

It is evident that the testimony of defendants, so discredited by these flagrant contradictions, cannot be relied upon. The result is a lack of satisfactory evidence as to what actually was done with a large portion of these New York City rents. The same considerations render unsatisfactory the testimony as to what was done by testator’s widow with at least a portion of the $32,000 said to have been paid directly to her.

So far as complainants are concerned, however, the difficulty is that there is no other evidence — no affirmative evidence — that payment of any sums worth consideration were .made out of the New York City rents to testator’s three living children for their own benefit, either by testator’s widow or by the children themselves, with her knowledge or consent. The burden of proof is upon complainants to establish that charge affirmatively. The unreliability or utter failure of all evidence to negative such a charge cannot supply the want of any affirmative evidence.

It is not enough that it may justly he said, in view of the evidence, that it may be true that considerable portions of the New York rents were paid to or received by the three children for their own use with their mother’s participation, active or passive. Other inferences are at least equally justifiable, to wit — (1) that all the New York City rents were paid to the mother or for her account and benefit; (2) that some of the rents were paid out wrongfully by the three children to themselves or to third persons, without the mother’s knowledge or consent; (3) that the three children either knowingly or inadvertently still have in their hands, without the mother’s knowledge ox consent, a portion of the New York City rents. In none of these contingencies would complainants have any ground for relief, although under all but the first the mother might well have ground for relief against the three children.

Neither does the evidence show any accumulation by the widow of the New York City rents, such as would show bad faith in her election.

Complainants have failed to prove that the widow’s election to take the whole of the New York City rents for her own support and use was not lonco fide; have failed to show that they have any present interest in the New York City property or rents (other than a vested remainder subject to the existent life estate of the widow), or any right to present relief.

•Mention is made by complainants of evidence tending to-show a sale by the executors (under testamentary power of sale) of the Elmhurst property in which complainants have a .present interest, and failure to distribute the proceeds. That, however, is not -within the issues of the present bill.

In view of all the circumstances, including the intermingling and confusion of the rents with the estate funds, and the recklessness of the testimony adduced on behalf of defendants, posts will not be allowed defendants. Complainants do not charge, nor do I believe that there was intentional false swearing, but it is obvious that careless swearing to matters in fact untrue is liable to be productive of miscarriage of justice equally as much as perjury, and is almost as much to be reprehended.


author: Per Curiam.

text:
    JACOB SCHIFF AND FANNY SCHIFF, PLAINTIFFS-RESPONDENTS, v. ISIDORE ALEXANDER AND BECKY ALEXANDER, AND PHILIP SAKOLSKY AND FANNY SAKOLSKY, DEFENDANTS-APPELLANTS.
    Submitted November 6, 1924
    Filed August 19, 1925.
    Sale of Real Estate — Suit to Recover Deposit on Ground That There Were Encroachments Contrary to Contract — Motion to Strike Out Defenses — Plaintiffs’ Affidavit Showed Encroachments, Defendants’ Answer Not Supported by Affidavits Required by Rule — Answer Examined and Stricken Out as Sham and Frivolous — Counter-claim Stricken Out on Same Grounds — Encroachments Apparent — Judgment For Plaintiff.
    On appeal from the Hudson County Circuit Court.
    Before Cummere, Chieu Justice, and .'Justices Parker and Katzenbach.

      For the deiendants-appellants, TIershenslein & Finnerly (Charles 11 erskenstein, of counsel).
    Por the plaintiffs-respondents, Gross & Gross (Isaac Gross, of counsel).
   Per Curiam.

This is an appeal iiom an order of the Hudson County Circuit Court made by Judge Ackerson, striking out the defendants’ answer and counter-claim and directing the entering of a final judgment.

We feel that the view's entertained by us can be no better expressed than they are in the opinion of Judge Ackerson, which we adopt as the opinion of this court. His opinion was as follows: “This motion is made by the plaintiffs to strike out the answers filed herein by the defendants, upon the ground that the denials contained in the .answer to the Erst and second counts of plaintiffs* complaint are sham; that the first separate defense is sham or frivolous; that the second separate defense is sham or frivolous; that the third separate defense is frivolous and that the counter-claim filed by the defendants is sham or frivolous, or both.

“The complaint seeks to recover a deposit of $2,000 paid on account of the purchase price of four certain pieces of real estate known as Nos. 638%, 640, 642 and 644 Ocean 'avenue, Jersey'City, New Jersey, paid by the plaintiffs to the defendants under contract dated October 16th, 1923. The contract, among other things, provides as follows: ‘It is understood and agreed that the buildings upon said premises are all within the boundary lines of the property as described in the deed therefor, and that there 'are no encroachments thereon, and that the buildings comply with municipal ordinances and regulations and the provisions of tlie New Jersey State Tenement House act as enforced b}' the state board of tenement-house supervision, to be shown by the report of the department or board 'enforcing the same where such ordinances, regulations and said act apply.*

“The complaint contains two counts, the first of which seeks to recover a $2,000 deposit and a $300 search and surveyor’s fee, upon the ground that the buildings upon said premises- are not all within the boundary lines thereon, and that the cornice of said buildings extends over into Ocean avenue one and eighty hundredths feet, and that the show windows in front of the building on each lot extend into the street or highway eighty hxmdredths feet, and the cellar entrances project into the street fiv;e feet, and that the frame building in the rear extends over upon the premises in question forty hundredths of a foot on the southerly end and twenty-five hundredths of a foot on the northerly end, and the claim is that the defendants cannot convey according to their contract for the above reasons.

■ “The answer admits the truth of the allegations of the complaint, except as to the defects above mentioned, which are denied.1'

“Plaintiffs’ motion, however, is fully supported by affidavits, and especially by the affidavits of two surveyors, showing that the defects above mentioned, in fact, exist. 'Pile defendants, Jiowo\er, have not presented any affidavits or any proofs as required by rule 80 of the Supreme Court (Revision 1919), which provides: ‘The answer may be struck out and judgment final may be entered upon motion and affidavits as hereinafter provided, unless the defendant, by affidavit or other proofs, shall show such facts as may be admitted by the judge hearing the motion, sufficient to entitle him to defend.’

“As the defendants have failed to submit affidavits or other proofs as to the facts set forth in their answer and counterclaim, and the plaintiff's’ affidavits fully cover all of the matters mentioned in the answer and counter-claim, there is nothing else for the court to do but assume that the facts set forth by the plaintiffs’ affidavits are true, and that the defendants cannot show such facts as would be sufficient to entitle them to defend. Larner v. Town of Montclair, 2 N. J. Adv. R. 411 ; Eisele et al. v. Raphael, 101 Id. 200.

“Now, let us see, irrespective of whether affidavits have been filed by the defendants or not, there, is any merit in the three separate defenses set up in their answer and in their counter-cl a im.

“The first separate defense alleges that the plaintiffs waived the provisions of the contract hereinabove quoted, to the effect that the buildings should be wholly within the boundary lines of the lots, &c., and did agree to accept title to two of the houses described in the contract, subject to existing misloeations and encroachments, if any, in consideration of which defendants agreed to release plaintiffs from the obligation to take title to all four bouses mentioned in the contract, and that plaintiffs are thereby estopped from asserting that they are entitled to a return of deposit moneys.

“This defense is not only fully met by plaintiffs’ moving affidavits, and unsupported by any affidavits on the'part of the defendants, but it is clearly frivolous.

"Thé deffeftdants claim in this defense that they are not seeking to- abrogate a written contract by parol, but are only pleading-facts,' which, if true, would -raise -an-estoppel as against-the .plaintiffs because it is claimed that the plaintiffs caused the defendants to agree-to sell and convey only.two of the-houses upon an ■ understanding that the plaintiffs would take title to the two houses,-subject to. all mislocations and encroachments, upon defendant’s agreement to relieve the plaintiffs .of their obligati on. to take all four houses, and the defendants 'cite -the case of Gold v. Schneider, reported, in 2 N. J. Mis. R. 179, as an authority for this proposition, As- already observed, the facts set forth in. this separate defense-are; not supported by affidavit, but aside from this, the case of Gold v. Schneider, supra, has no application to the first defense set up-in the case sub judice because, in the case of Gold v. Schneider, the plaintiff requested the defendant to change certain bank mortgages, ■ which were to be upon the property when conveyed, to mortgages held by individuals, who, in compliance therewith, made the change. -This was a clear case of -a change of position caused by the conduct of the opposite part}1, which is the real test of an estoppel, and for the further reason .that the defendant in the last-mentioned case was able to perform the contract as originally written, to purchase the property covered by bank mortgages. In the case sub judice the defendants were unable to perform the original contract, either on the day fixed in the contract for performance or .at any other time. Therefore, assuming thaf the plaintiffs did agree to take two houses instead of four, the. defendants did not change, their position, because they were unable to convey the four houses according to their agreement, and the mere fact that plaintiffs were willing to take two houses instead of four did not produce a change of position .on the part of the defendants to their detriment, which is an essential element of estoppel, and, furthermore, there was .no consideration whatever for - the plaintiffs in accepting ¡two. houses, instead of four,- because the statement of the defendants that they agreed to release the plaintiffs .from their obligation to take the hour houses could not be a consideration, for the reason that there was no obligation on the part of the plaintiffs to take these four houses- because of the defects already mentioned, hence, there was no obligation to- release the plaintiffs from.

“It seems entirely clear that the defendants, by their first separate defense, are seeking to change and vary the terms of a written agreement by an oral one, which is not permissible under the authority of Bowers v. Glucksman, 68 N. J. L. 146 ; Lippincott v. Bridgewater, 55 N. J. Eq. 208; Kerzner v. Chanin, 118 Atl. Rep. 693.

“For this reason, therefore, the first separate defense should he struck out as both sham and frivolous.

“Tlie second separate defense set forth in defendants’ answer is that the plaintiffs did fail to carry out the terms of said agreement of sale and to accept title to said premises at the time stipulated, and did abandon the contract and forfeited their deposit.

“As already mentioned, the plaintiffs’ moving affidavits completely deny all of these allegations, but attorneys for the defendants seem to brush this aside by asserting in their brief that no matter how full the matters in the affidavits of the plaintiffs may be, that it is not encumbent upon the defense, under the rules, to come into this court and deny the facts contained in the plaintiffs’ affidavits or support their separate defense by affidavits on the part of the defense. But, unfortunately for this contention, rule 80 of the Supreme Court requires just that thing to be done. Bisele v. Raphael, supra.

“If this were not so, it would he a very simple matter for a defendant to come in and set up two or three defenses without any basis in point of fact, and in a busy circuit prevent the plaintiffs from recovering for many months, no matter how full and complete plaintiffs’ affidavits on a motion to strike out a defense as sham and frivolous might be.

“It is pertinent to inquire by what method a judge, hearing a motion to strike out an answer, could determine whether a defendant is entitled 'to defend unless the defendant submits affidavits or other proofs as required by rule 80.

“The defendants having failed to file any affidavits or submit other proofs to offset the affidavits filed by the plaintiffs to the effect that the buildings upon the premises in question are not within the boundary lines thereof, and that there are encroachments thereon, the court concludes that the buildings are not within the boundary lines, and that there is an encroachment in the rear, and this being a fact, the defendants were guilty of a breach of the contract on their part and the plaintiffs were under no duty or obligation to go any further in the matter. Caporala v. Rubine, 92 N. J. L. 463.

“The second separate defense must, therefore, be struck out.

“The third separate defense alleges that the buildings erected upon the land described in the agreement were erected in accordance with the laws and ordinances of the State of New Jersey, and if any windows or cellar entrances project over part of the sidewalk, that this was done by lawful municipal authority and does not whatever constitute a defect or encumbrance to the title, and that with regard to the encroachment of the gutter in the rear, the said encroachment is so immaterial and of such trifling effect'that it can be disregarded.

“This defense is clearly frivolous.

“It is well to note, first, that there is no charge in the complaint that the provision in the contract against violation- of municipal ordinances has been in any waj' violated. The charge in the complaint is that the buildings encroach upon the highway and that there is an encroachment upon the premises in question by reason of a gutter on a building in the rear, and the contract of sale expressly provides that it is understood and agreed that the buildings are all within the boundary lines of the property, and that there are no encroachments thereon. It becomes, therefore, immaterial whether the encroachments are extensive or only slight, and vyhether the buildings extend beyond the lines only a few inches or many feet, for the parties to a contract clearly have the right to make such stipulations in their contract as they see fit, so long as such stipulations do not violate the law or public policy.

“The same clause as contained in this contract was construed by Wee Chancellor Bentley in the case of Herring et al. x. Esposito, 119 Atl. Rep. 765, where the court said that to disregard this clause of the contract would be to draw a new' contract for the parties upon which their minds have never met, and that is a policy that courts have universally refrained from acting upon, and the court further says that -such a case is entirely distinguishable from the rule laid down in Tan Blarcom v. Hopkhins, 63 N. J. Eq. 466; Scheiman v. Bloch, 117 Atl. Rep. 389, and all other cases in which this specific clause is not contained.

“Counsel for the defendants in the case sub judice, however, imply that the case of Herring v. Esposito can be distinguished from the facts of the case being considered, because they say in that case the encroachment was at least two feet and one and five-eighth inches in the rear, and that the quoted case does not deal with encroachments upon the highway, authorized by municipal authorities, and that the ease being one of novel impression, the court, in the case sub judice is not necessarily bound by the pronouncement of the Vice Chancellor, but unfortunately this case has been followed in the law by the case of Goldstein v. Ehrlick, 2 N. J. Adv. R. 1166, where it is held that encroachments, even slight, are sufficient to war-rent a rescission of the contract containing such a clause as above quoted. 1 •

“The third separate defense will therefore be struck out.

“The counter-claim- filed by the defendants alleges that after the making of the written contract of sale, the plaintiffs instructed the defendants not to rent the premises which had just been erected, so that the said premises would be unencumbered by any tenancy, and that pursuant to such instructions and agreement the defendants refrained from renting said premises from October 16th, 1923, until about January 21st, 1924, whereby they lost the sum of $1,650, and also were obliged to place mortgages upon the property in order to be able to carry the same, and incurred a counsel fee and brokerage of $320 for so doing.

“Plaintiffs’ moving affidavits completely deny all of the matters set forth in the counter-claim, and the defendants, as above stated, have not submitted any. affidavits of proofs upon the subject.

“This' counter-claim is not only sham, but it is frivolous, and does not set foith a cause of action.

“It is based upon the contract of sale already referred to, which under the statute was required to be in writing, and. that contract provided that the rents were to be apportioned as of the day of the delivery of the deed, thus clearly indicating that the premises were to be rented, therefore, any agreement to the effect that said premises should not be rented, -and made by parol, would be an attempt to vary or alter the terms of this written instrument by parol, and this, of course, could not be done. Kerzner v. Chanin, 118 Atl Rep. 693.

“Counsel for the defendants in their brief, however, say that the facts contained in their counter-claim come squarely within the decision in Gold v. Schneider, supra, and that an estoppel was created against the plaintiffs. But it is clear that the doctrine of the quoted case does not apply to the situation arising in the ease sub jiodice. In Gold v. Schneider, supra, the contract of sale provided that the premises should ,be encumbered .at the time of passing title, by mortgages held by banks, and although the sellers had arranged for bank mortgages, they, at the request of the 'purchaser, obtained mortgages held by individuals, and when the time came for passing title, the purchaser refused to take title because the mortgages were not held by banks. And, as was very properly stated, ‘a party is not allowed to- take advantage of an act done, or ,the omission to do it, where said act or omission was der pignedly caused by himself.’

“In the instant ease, however, the plaintiffs are not claiming as a breach of the contract that the premises were not routed, they are merely standing upon the contract as written, regardless of any question about rents, because according to the written contract there is no requirement that the premises shall not be rented, it only provides for ail apportionment of rpnial in the event that the premises should all he .rented at that time.

“The proposition which we are lo determino is whether the defendants, having made a confract to sell premises, stipulating that the houses should be wholly within the boundary line of the premises, and that there should be no encroachments. should now be permitted, when it appears that the houses are not all within the boundary lines, and that there is an encroachment, to set up as a counter-claim that they made an agreement with the plaintiffs that the premises should not fie rented during the interim between the contract and the passing of title, and thereby lose the rents that they might have otherwise made, when, if it had not been for (their own breach of the written contract, no question of rentals could have arisen. If the defendants had been able to give title according to their contract, they could not, of course, claim any loss of rentals, and how can they now come fn and say that although they are at fault, nevertheless, since the sale did not go through because of their fault, they are nevertheless entitled to recover rentals which they lost, because the sale did not go through as they had expected, and the counter-claim does not at any place allege that the defendants could have delivered title according to their contract, nor does it in any way excuse their breach, and the same reasoning also applies with reference to the allegations that mortgage? were required to be placed upon the property to carry the same, pending the sale.

“It therefore appears that this counter-claim is both sham .and frivolous and doe? not set forth a cause of action, and must be stricken out.

“Por the reasons above stated, the answer filed by the defendants herein, including the three separate defenses and also including the counter-claim, will be stricken out and a summary judgment may be entered for the amount claimed by the plaintiffs, to wit: $2,300 with interest thereon from October 16th, 1923, and an order may be presented accordingly.”'

In the present appeal the question of the search fees is eliminated.

The judgment of the Hudson County Circuit Court is affirmed, with costs.


text:
    LUCIA DE PALMA ET AL., APPELLEES, v. ECONOMY AUTO SUPPLY COMPANY ET AL., APPELLANTS.
    Argued March term, 1925
    Decided August 26, 1925.
    Negligence — Motor Vehicle Striking Little Child — Evidence Examined and Case Properly Submitted to Jury — Objections to Questions Considered and Held Unfounded — Previous Disability Aggravated by Accident — Proper Measure of Damages — Rule Stated, Though Not the Correct One, Did Ñot Harm Defendant.
    On appeal from the Essex Common Pleas.
    Before Justices Trentjtarb, Mixture and Lloyd.
    For the appellants, Frank G. Turner.

    For the appellees, KaJisdi & Kalisch.

   Per Curiam.

This action was tried in the Essex Common Pleas before the court and a jury. The action was brought against the defendant and its driver to recover damages for personal injuries received by a twelve-vear-old child, as a result of being struck by defendant’s automobile; the father joined in the action to recover consequential damages. The jury rendered a verdict of $500 in favor of the father and $1,000 in favor of the child.

The first four points are concerned with the court’s refusal to grant the usual motions on grounds of no negligence in defendant, and contributory negligence in the plaintiff child.’ We think the case vas properly left to the jury.

The fifth point is that the court erroneously permitted plaintiff’s attorney to ask the jury whether any of them held stock or rvere financially interested in any insurance company which insured automobile owners against liability.

Wlien matter ab extra is injected into a case the proper practice is for counsel to request the court either to admonish counsel or to instruct the jury to disregard the objectionable remarks. A failure so to do by the trial court, and exception thereto1, would lay the basis .for a valid assignment of error if such refusal prejudiced the rights of a party. A refusal of the court to withdraw a juror for improper remarks by counsel is discretionary on the part of the trial judge, and cannot be reviewed on appeal. Smith v. Brunswick Laundry Co., 93 N. J. L. 436; Boshaw v. Erchenberger, 125 Atl. Rep. 130.

Point six is that the court refused to1 strike out testimony given by the girl’s mother.

“Q. Have you noticed any difference in the little girl from the time before the accident and since the accident?

"A. At night she cried. I get up from my bed and I go to her and ask her what is the trouble. She says her arm hurts her.”

A non-expert witness may testify to such exclamations and complaints as indicate present existing pain and suffering. State v. Gruich, 96 N. J. L. 202, 204; 15 Ann. Cas. 796, note; 158 U. S. 271.

The seventh point is that the court charged the jury as follows: “But you may not allow them any claim unless you find it is the result of the accident. If, by reason of the injuries, any previous disability of the child was aggravated you may allow for that.”

The objection was not to the form or substance of the charge, but to the fact that making such charge, in the absence of an allegation of such claim' in the complaint, was prejudicial to the defendant, in that he had no opportunity to meet it.

The complaint alleged that the plaintiff “sustained severe and permanent injuries, to wit, fractured skull, broken shoulder, and was injured about her ankle, left side and left arm.”

The defendant offered no medical witness, the plaintiff’s doctor testified that the child had a green stick fracture of the collar bone, which affected the motion of the left arm; that the child had rickets for eleven years, and that there was a collection of lime in her bones that made it more difficult.

“Q. 'Makes what more difficult?

“A. The union of the bone and the general condition.”

Point eight is that the court erred in charging the measure of the infant’s damage. “In figuring the verdict, you may capitalize the amount, because if she gets a verdict it will be put out at interest, under the law, and therefore she will have the benefit of whatever sum you allow, and it will be placed at interest up until the time she is twenty-one years of age.” There was no exception to this charge, yet while it was not the correct rule of damage it did not harm the defendant, since it expressed only the theory upon which damages are capitalized, and not the plaintiff’s right toJ recover them.

The judgment will be affirmed.