author: Burling, C. C. J. and S. C. C.

text:
    ELSIE ALEXANDER, PLAINTIFF, v. ANIEL A. MANZA, DEFENDANT.
    Decided February 16, 1944.

      For the plaintiff, Irving I. Jacobs.

    For the defendant, Emanuel N. Weitu (with whom appeared Vincent S. Haneman).

   Burling, C. C. J. and S. C. C.

Motion has been made by the plaintiff for a rule to strike out the answer of the defendant pursuant to R. S. 2:27-124; N. J. S. A. 2:27-l24, and Supreme Court rules 40, 80 and 81, N. J. S. A. tit. 2, and for summary judgment, or in the alternative for a rule to strike out parts of the said answer, or in the alternative for a rule consolidating this cause for trial with the cause now pending in the New Jersey Supreme Court with venue laid in Atlantic County wherein the present plaintiff is the plaintiff therein, and the defendant therein is the defendant in the second count of said cause based upon an independent agreement of assumption of mortgage hereinafter referred to (dated January 20th, 1931, Exhibit P-3) and William P. Bichards and Alexander A. Lincoln, additional defendants, and against which additional defendants judgment upon the first count of the complaint therein was heretofore entered.

Summons was issued in the first cause on the 7th day of August, 1941, and summons was issued in the present cause of action on the 17th day of July, 1943.

The reasons assigned for this motion are as follows:

■1 — The allegations and denials in the same are untrue in fact and sham and it is filed only for the purpose of delay, and in support thereof, there was submitted an affidavit and the exhibits mentioned therein;

2— The allegations therein and the statements thereof are frivolous and do not state facts sufficient to constitute a defense in point of law, and it is filed only for the purpose of delay;

3— The matters and things concerned are so factually constituted that they have a common question of law and fact and can be conveniently tried together.

In the present cause of action the following facts are alleged inter alia and supported by affidavit by the plaintiff (uncontradicted by affidavit or other proof by the defendant) pursuant to Supreme Court rules 80 and 81:

On October 15, A. d. 1925, William P. Eichards and Alexander A. Lincoln, being indebted therefor to Madeline Alexander, executed and delivered their bond of that date unto the said Madeline Alexander in the penal sum of $33,000 conditioned for the payment of the principal sum of $16,500 on Hovember 1, a. d. 1930, with interest thereon at the rate of six per centum per annum, payable semi-annually. {Exhibit P-1.)

To secure payment of the said bond, the said William P. Eichards and his wife, and the said Alexander A. Lincoln and his wife, executed and delivered a mortgage of even date with said bond unto the said Madeline Alexander of and upon certain lands and premises whereof the said Eichards and Lincoln were seized in fee-simple, situate in the City of Englewood, in the County of Bergen and State of New Jersey, particularly bounded and described in said mortgage, and known and designated as 39-41 Englewood Avenue, Englewood, New Jersey. The said mortgage being first duly acknowledged and having the certificate of acknowledgment endorsed thereon was duly recorded in the Clerk’s Office of Bergen County, New Jersey, on Hovember 12, A. D. 1925, in Book 784 of mortgages for said county at page 584, &c. {Exhibit P-2.)

By mesne assignments the said bond and mortgage were duly assigned to plaintiff, and the plaintiff is the owner and holder thereof, to the notice and knowledge of the defendant. {Exhibit PS.)

On or about- April 1, Á. d. 1926, the said William P.. Richards et ux;, and the said Alexander A. Lincoln et ux.,. by deed conveyed the said lands and premises mentioned hereinbefore unto the defendant, Aniel Manza. The said deed being first duly acknowledged and having the eertifieateof acknowledgment endorsed thereon was duly recorded in the Clerk’s Office of Bergen County, New Jersey, on April 6, a. D. 1926, in Book 1397 of Deeds for said County at page 187, &e. By express covenant in said deed contained it was; provided as follows:

“Subject however to a mortgage for $16,500, dated October-15, 1925, made by the grantors herein to Madeline Alexander covering said premises, which said mortgage the grantee-herein assumes and agrees to pay as a part of the consideration for said premises.”

A certified copy of said deed was presented and marked Exhibit P-6.

Default in the payment of the said mortgage debt, having-occurred, the plaintiff as complainant, brought and prosecuted proceedings in the Court of Chancery of New Jersey for the foreclosure of the said mortgage and on November 14, A. d. 1940, a Pinal Decree for the sale of the said mortgaged lands and premises and the foreclosure- of the said mortgage was made by the said Court of Chancery, and in-which said proceedings the said Richards, Lincoln, Manza,. among others, were defendants, and the said Pinal Decree adjudged that there was due as of the date thereof to the-complainant, the plaintiff, herein, upon said bond and mortgage the sum of $18,404.72 with lawful interest thereon to-be computed from November 4, 1940, together with costs of' said suit to be taxed and directed that a writ of fieri facias issue to the Sheriff of the County of Bergen for the sale of' said mortgaged lands and premises to make the said sum with lawful interest, taxed costs, sheriff’s fees, &e.

On December 26, A. d. 1940,- pursuant to the said writ-the said Shériff duly sold the said lands and premises according to law at a public sale to the plaintiff, she being the-highest bidder, for the sum of $100.

On July 8, a. d. 1941, by order of the Court of Chancery said sale was confirmed in all respects.

After crediting upon the said Final Decree and writ the-amount of the proceeds of said sale, there remained due to-the plaintiff upon the same a deficiency in the amount of' $18,304.72 together with interest from November 4, A. d. 1940, at the rate of 6 per centum per annum, taxed costs in the Court of Chancery, in the amount of $419.65, Sheriff’s-fees and disbursements in the amount of $93.34 making the total sum of $18,817.71, no part of which has been paid, except as hereinafter stated.

Thereafter the plaintiff brought suit against the said Kichards, Lincoln and this defendant in the New Jersey Supreme Court, on separate causes of action not herein stated, and on April 16, a. d. 1942, recovered judgment against the said Kichards and Lincoln in the sum of $20,515.73; subsequent proceedings were had upon said judgment, both in the New Jersey Supreme Court and in the Court of Chancery, and the plaintiff has realized the gross sum of $3,500 on account, less subsequent court costs and disbursements.

The said Kichards and Lincoln, and the said Aniel A. Manza were party defendants in the proceedings in the Court of Chancery for the foreclosure of said mortgage, and were-served with process therein.

Plaintiff contends that the covenant in the deed herein-before mentioned and dated April 1st, 1926 (Exhibit P-6) was made for the benefit of the said mortgagee and her assigns.

The answer cbntains a general and perfunctory denial.

The affidavit and exhibits by the plaintiff support the facts-aforesaid. Where the denials of the defendant are not supported by any verification and in view of the affidavit of the plaintiff, such denials are sham. Eisele & King v. Raphael (Court of Errors and Appeals, 1916), 90 N. J. L. 219; 101 Atl. Rep. 200; Harley v. Passaic County (Court of Errors and Appeals, 1938), 121 N. J. L. 44, 46; 1 Atl. Rep. (2d) 454.

The answer further asserts ten separate defenses which I will dispose of in the order in which they are presented:

The first separate defense is as follows:

“Plaintiff did not file in the office of the clerk of the County of Bergen, being the county in which the real estate described, in the mortgage is situate, a written notice of the proposed action, setting forth the court in which it is proposed to begin the action the names of the parties to the bond and to the action the book and page of the record of the mortgage, together with'a description of the real estate described therein, pursuant to the statute in such case made and provided.”

It relates to the provision of the Revised Statutes relating to mortgages and bonds and foreclosure and actions thereon, known as R. S. 2:65-6; N. J. S. A. 2:65-6.

The second separate defense is as follows:

“Plaintiff’s action against the said defendant was not commenced within three months from the date of the confirmation of the sale of the mortgaged premises on July 8th, 1941, in accordance with the statute in such case made and provided.”

It relates to the provision of the Revised Statutes relating to mortgages and bonds and foreclosure and actions thereon, known as R. S. 2:65-2; N. J. S. A. 2:65-2.

Since the adoption of chapter 207 of the Pamphlet Laws of 1898 (R. S. 2:26-3.6; N. J. S. A. 2:26-3.6) a court of law has jurisdiction to entertain a cause of action based upon a deficiency against an assuming grantee. Herbert v. Corby (Supreme Court, 1940), 124 N. J. L. 249; 11 Atl. Rep. (2d) 240; affirmed (Court of Errors and Appeals, 1940), 125 N. J. L. 502; 17 Atl. Rep. (2d) 541, and followed in Woodbridge v. DeAngelis, 125 N. J. L. 579; 17 Atl. Rep. (2d) 542; Fidelity Union Trust Co. v. Multiple Realty, &c., Co. (Court of Chancery, 1942), 131 N. J. Eq. 527; 26 Atl. Rep. (2d) 155. In the last case (at p. 538). 26 Atl. Rep. (2d) (at p. 161) it was stated:

“These cases hold that, by virtue of the statute, courts of law have concurrent jurisdiction, with that inherent, original jurisdiction which has always been, from time immemorial, the prerogative of the Chancellor.”

The statutes above referred to (R. S. 2:65-6 and 2; N. J. S. A. 2:65-6 and 2) are not applicable to this cause of action because this action is not an action on the bond and it is not an action against the obligors on the bond but an action against the guarantor of such debt by virtue of the covenant of assumption. The distinction is real. Green v. Stone (Court of Errors and Appeals, 1896); 54 N. J. Eq. 387; 34 Atl. Rep. 1099; Fidelity Union Trust Co. v. Prudent Investment Corp. (Court of Chancery, 1941—Vice-Chancellor Egan), 129 N. J. Eq. 255; 19 Atl. Rep. (2d) 224; to the contrary, Meyer v. Supinski (Court of Chancery, 1939—Vice-Chancellor Fielder), 125 N. J. Eq. 584; 7 Atl. Rep. (2d) 277.

In view of the contrariety of opinions as expressed in the Eidelity Union Trust Co. and Meyer cases, as well as the action of the Court of Errors and Appeals in twice putting aside the determination of the question (Wootton v. Pollock (Court of Errors and Appeals, 1935), 119 N. J. Eq. 128; 181 Atl. Rep. 172; Equitable Beneficial Association v. Cutler (Court of Errors and Appeals, 1937), 119 N. J. L. 28; 194 Atl. Rep. 183), it is evident that one of the two positions taken in the Chancery Court must be presently pursued.

The opinion of Vice-Chancellor Eielder in Meyers v. Supinski (ante) in line with the trend of the legislative policy and the action of the Court of Chancery to protect mortgagors from deficiencies upon bonds pursuant to the doctrine of Federal Title and Mortgage Guaranty Co. v. Lowenstein (Court of Chancery, 1933), 113 N. J. Eq. 200; 166 Atl. Rep. 538; Young v. Weber (Court of Chancery, 1934), 117 N. J. Eq. 242; 175 Atl. Rep. 273; Fidelity Union Trust Co. v. Posternack (Court of Chancery, 1937), 122 N. J. Eq. 180; 192 Atl. Rep. 837; affirmed (Court of Errors and Appeals, 1937), 123 N. J. Eq. 181; 196 Atl. Rep. 469, and kindred cases, made the following observation:

“It seems to me that the purpose of the statute is to bar proceedings by an obligee against any one liable on the bond, if proceedings to collect on the bond are not instituted within the statutory time. It would be a forced construction of the statute to say that its purpose is merely to bar a suit against an obligor on his bond if suit were not commenced within three months yet leave the surety for the obligor liable on his assuming covenant for the identical balance claimed to be due on the bond, for a period of sixteen years.”

However, in the opinion of Vice-Chancellor Egan in the Fidelity Union Trust Co. v. Prudent Investment Corp. (ante), decided two years later (1941)- he held as follows:

“The defendants have referred to the provisions of R. S. 2:65-2, et seq., as applying to this suit, and contend (1) that under it, the complainant should be barred from relief because suit was not instituted within three months of the order confirming the foreclosure sale; and (2) that there should be a dismissal because no notice of intention to begin this suit was filed; and (3) that the ticket served upon them in the foreclosure action did not advise them of any intent to sue them for a deficiency. (1) The defendants’ claim to relief under R. S. 2:65-2, et seq. [N. J. S. A. 2:65-2], finds an answer in Green v. Stone (Court of Errors and Appeals, 1896), 54 N. J. Eq. 387 [34 Atl. Rep. 1099], which is authority for the proposition that such defenses are not sustained in suits, as here, based on an assumption of a mortgage debt. (2 and 3) Our courts hold that neither a notice of intention need be filed, nor suit instituted within the statutory period. National Bank of New Jersey v. Lefkowitz, 107 N. J. Eq. 265 [152 Atl. Rep. 328]; Black Diamond Building and Loan Association v. Redlinghouse, 113 N. J. Eq. 1 [165 Atl. Rep. 630]; Chodosh v. Schlesinger, 119 N. J. Law 405; 196 Atl. Rep. 731.”

The Bond and Mortgage Act of 1880 as amended, and now contained in R. S. 2:65-6 and 2 (N. J. S. A. 2:65-6 and 2), is in derogation of the common law and must be strictly construed. Callan v. Bodine (Supreme Court, 1911), 81 N. J. L. 240 (at p. 243); 79 Atl. Rep. 1057.

The' legislative trend during the last decade indicates an attempt to protect mortgagors from deficiencies on bonds. Pamph. L. 1933, ch. 82, now R. S. 2:65-2; N. J. S. A. 2:65-2; Pamph. L. 1935, ch. 88, now R. S. 2:65-5.1; N. J. S. A. 2:65-5.1, and as recently as 1942, chapter 172 (R. S. 2:65-7.1; N. J. S. A. 2:65-7.1) placed a time limitation upon suits upon bonds for deficiency where prior mortgages had been foreclosed. It is evident to meet the situation under consideration, one of public policy, that it requires legislative action.

In giving due consideration to the aforesaid comments and to the opinions in Fidelity Union Trust Co. v. Prudent Investment Corp. (ante) and Meyers v. Supinski (ante) and to the cases cited in Vice-Chancellor Egan’s opinion in support of his decision, such as Chodosh v. Schlesinger (Court of Errors and Appeals, 1937), 119 N. J. L. 405; 196 Atl. Rep. 731, it is my intention in the disposition of this motion to adopt the conclusions of Vice-Chancellor Egan as heretofore quoted, and as a result thereof, hold that the first and second separate defenses are frivolous and insufficient in law.

The third and fourth separate defenses are as follows:

“Third Separate Defense.
“Plaintiff’s cause of action against the defendant was not commenced within six years next after the alleged cause of action accrued.”
“Fourth Separate Defense.
“Plaintiff’s action against the defendant was not commenced within sixteen years next after the alleged cause of action accrued.”

The plaintiff’s cause of action is grounded in a deed dated April 1st, 1926 (Exhibit P-6).

Since the right of action springs from a covenant under seal, the common law action of covenant or debt does lie. Woodbridge v. DeAngelis (ante); Fidelity Union Trust Co. v. Prudent Investment Corp. (ante). The mortgage contemplated by the covenant of assumption was not payable until November 1st, 1930. Sixteen years have not elapsed since the cause of action accrued. Since the right of action arises from the covenant under seal, the period provided by R. S. 2:24-5; N. J. S. A. 2:24-5, has not yet elapsed.

Further the sum of $1,500 was paid on account of the principal of the mortgage by the defendant (paragraph 4 of the eighth separate defense) on January 21st, 1931. Payment by the debtor in part satisfaction within the statutory period removes the bar of the statute. R. S 2 :24-5; N. J. S. A. 2 :24-5. Interest was paid under the direction of the debtor in which he thereby participated under an agreement for the collection of rents, dated September 14th, 1933, until the spring of 1940. Paragraph 8 of plaintiff’s affidavit which is not refuted and is evidential' of said fact herein. Eisele & King v. Raphael (ante); Harley v. Passaic County (ante). Payment by the debtor of interest within the statutory period likewise removes the bar of the statute.

In the event the action is classed as being in assumpsit, payment by the debtor of interest within the statutory period removes the bar of the statute which would toll the effect of R. S. 2:24-1; N. J. S. A. 2:2A-1.

These (third and fourth) separate defenses are accordingly frivolous.

The fifth separate defense is abandoned.

The sixth separate defense is as follows:

“Plaintiff has released and discharged the said William P. Richards and Alexander A. Lincoln, the obligors on the bond, from liability thereon, in consideration of the payment by the said Richards and Lincoln to the plaintiff of the sum of $3,500; that thereby in law the defendant herein has been released and discharged from any and all liability on the alleged covenant of assumption contained in the deed.”

The payments referred to in this defense were involuntary and made by operation of law (plaintiff’s affidavit, paragraph 10, not refuted by defendant). The liability upon which the complaint is predicated is not a joint one. This defense is frivolous.

The seventh separate defense is as follows:

“This defendant did not assume and agree to pay a mortgage for $16,500 dated October 16th, 1925, made by his grantors to Madeline Alexander, as alleged in paragraph 4 of the plaintiff’s complaint; that this defendant made no such agreement with his grantors, at the time he purchased the. premises, or at any other-time, nor was it ever his intention or the intention of his grantors that he should assume personal liability therefor.”

The covenants in the deed speak for themselves. The grantee.of the deed by accepting the same became liable on the covenants purporting to be made by him as well as if he had signed and sealed - the 'instrument. Sparkman v. Gove (Supreme Court, 1882), 44 N. J. L. 252. The grantee who assumes a mortgage debt and promises to pay it makes a contract with the grantors for the benefit of the mortgagee. Herbert v. Corby (ante). This defense is frivolous.

Eighth separate defense of which paragraph 1 as follows is the gist:

“1. Defendant’s liability or obligation, if any by virtue of the alleged assumption clause contained in the deed as set forth in paragraph 4 of the plaintiff’s complaint, has been discharged, extinguished and released, under and pursuant to a novation consummated on or about January 20th, 1931.”

Novation means that there being a contract in existence some new contract is substituted therefor either between the same or different parties, the consideration mutually being the discharge of the old contract. Cooke v. McAdoo (Court of Errors and Appeals, 1913), 85 N. J. L. 692; 90 Atl. Rep. 302; Morecraft v. Allen (Court of Errors and Appeals, 1909), 78 N. J. L. 729 (at p. 732); 75 Atl. Rep. 920.

The allegations of fact of this defense have not been met in the affidavit of the plaintiff, and upon this proceeding the defendant is accordingly not required to submit answering affidavits, as there was no challenge thereof by the plaintiff. Harley v. Passaic County (ante).

Since the element of intention is the primary factor in the disposition of a defense of this nature, the question as to whether the debt has been novated is originally a question of fact and where there is a doubt as to the intention and factual effect of the agreement as an alleged novation, a question of fact for the jury arises under suitable instructions. Morecraft v. Allen (ante). Such a situation appears to be present and this defense may stand.

It is to be noted novation contemplates a valid agreement. A transcript of pleadings were submitted to the court for consideration upon this motion relating to the first cause of action referred to in this defense instituted on August 7th, 1941. The issues therein were reduced as a result of the previous disposition of a motion addressed to the original answer of the defendant therein, Aniel Manza, to the alleged effect of usury upon said agreement, and in the amended answer of the defendant therein, it was maintained and alleged that such agreement was void at law as a result thereof. Under such circumstances this defense may ultimately become insufficient in law.

The ninth separate defense is as follows:

“Plaintiff has elected to bring suit on the defendant’s covenant contained in the agreement of January 20th, 1931, and has abandoned and waived any and all claims on the covenant of assumption contained in the deed, as set forth in paragraph 4 of the plaintiff’s complaint, and is now estopped from maintaining a cause of action based on said covenant of assumption contained in the deed.”

This defense involves the doctrine of election of remedies. The essence of the doctrine of election of remedies is a conscious choice with full knowledge of the facts of one of two or more inconsistent remedies. It is the intentional waiver of all remedies but the one chosen. Adams v. Camden Safe Deposit and Trust Co. (Supreme Court, 1938), 121 N. J. L. 389 (at p. 394); 2 Atl. Rep. (2d) 361. It stems from the principle, rooted in reason and justice, that a party seeking legal redress shall not be at liberty of taking irreconcilable and repugnant positions. There must be in fact two inconsistent remedies available to the party seeking the enforcement of the claimed right. Adams v. Camden Safe Deposit and Trust Co. (ante). The doctrine of election of remedies, considered by eminent authority as “a harsh, and now obsolete rule” is one to be strictly confined within its reason and spirit. Adams v. Camden Safe Deposit and Trust Co. (ante). Although this case was not removed to the Court of Errors and Appeals, it was cited in Levy v. Massachusetts Accident Co. (Court of Errors and Appeals, 1939), 127 N. J. Eq. 49 (at p. 52); 11 Atl. Rep. (2d) 79. The remedies as sought by the plaintiff in this matter are not inconsistent. In the first case, the transaction regarding- the independent written agreement is under scrutiny and in the second case, the clause contained in a deed. The evidence in each is obviously different and the alleged primary liability arises from different sources. Alexander v. Manza (Supreme Court, 1943), 21 N. J. Mis. R. 295 (at p. 298); 34 Atl. Rep. (2d) 11.

Since the basis of fact of this defense is the institution of the suit above referred to, the defense is frivolous. At any rate, any other elements of intention are resolved against the defendant because they are met in the affidavit of the plaintiff (paragraph 9) and not challenged in any affidavit of the defendant. Harley v. Passaic County (ante).

Further such a defense in order to constitute a bar must aver every fact essential to make out a complete defense. Levy v. Massachusetts (ante).

The tenth separate defense reserves the right to set out and raise at the trial of this issue the objection that the complaint fails to disclose a cause of action upon the following grounds:

(a) Failure to make and join William F. Eichards and Alexander A. Lincoln, the mortgagors and the obligors on the bond, as party defendants to this suit, makes the complaint fatally defective;

(b) This court is without jurisdiction over the subject-matter, and plaintiff’s remedy, if any, is in the Court of Chancery;

(c) Plaintiff has failed to comply with the provisions of the statute in such case made and provided (R. S. 2:65-1, et seq.; N. J. S. A. 2:65-1, et seq.).

It is frivolous.

To summarize the result is as follows:

The principal answer is stricken. The first, second, third, fourth, fifth, sixth, seventh, ninth and tenth separate defenses are stricken. The motion to strike out the eighth separate defense is denied.

Since both parties join in an application for the consolidation of the two causes of action for trial and they may be conveniently tried together, it is ordered that they be tried together.

An appropriate rule may be accordingly presented.


source: Caselaw Access Project

author: Oliphant, S. C. C.

license: Public Domain

text:
    BROWN MORGAN, SURVIVING ADMINISTRATOR OF ALICE K. MORGAN, DECEASED, PLAINTIFF, v. HARVEY R. CLARK, JOHN P. DOYLE, SARAH E. DOYLE, HIS WIFE, GEORGE HAYDU, SOMETIMES KNOWN AS GEORGE HAJDU, JULIA HALASZ AND CHRISTINA LEUSENRING, AND HUGO LEUSENRING, HER HUSBAND, DEFENDANTS.
    Decided March 10, 1944.

      For the motion, Forman & Forman (David S. Forman, of counsel).

      Contra, Horace G. Prall.

   Oliphant, S. C. C.

This matter is before me sitting as a Supreme Court Commissioner on a motion made by the defendant Harvey E. Clark for a judgment of non pros for lack of prosecution.

The suit is on a bond for a deficiency amounting to $3,115.65. The original mortgage which secured the bond was made by Peter Marhoffer et ux., and John Kraml et ux., to Alice K. Morgan, deceased. By successive conveyances the property came into the hands of Christina Leusenring and Hugh Leusenring, her husband. Each of the successive grantees assumed by proper covenant the payment of the mortgage.

A motion was made by defendants Haydu and Halasz to dismiss the complaint as to them for lack of prosecution. An order granting the motion was signed on December 10th, 1943.

The case was first listed for trial at the Hunterdon Circuit at the April term, 1941, notice thereof having been filed March 24th, 1941. It was not moved, apparently by consent, and the case was added to the list of the September term, 1941. A motion was pending in the cause which was not determined until after the trial of causes at that time and the cause was not re-noticed for trial until the December term, 1943, notice being filed on December 2d.

The defendant was served with that notice of trial on November 29th, it being acknowledged by an attache of the office of defendant’s attorney. On December 2d, by letter, the attorney for the defendant endeavored to repudiate that acknowledgment by a letter addressed to plaintiff’s attorney which could not have been received by him until after the notice of trial had been filed.

Under these circumstances the attorney for the plaintiff not having taken advantage of his position until after the. cause was again noticed for trial, he cannot now complain that there was a lack of prosecution. The situation is not comparable to that presented on the motion to dismiss as to the defendants Haydu and Halasz.

But this defendant Clark says that by reason of Haydu and Halasz having been released the suit must likewise be non prossed as to him and says “It is well established that if by the action of the holder of the bond, one firstly liable be released then the one secondly liable is likewise released.” This statement is based oh the law of principal and surety which I am not persuaded pertains to this situation, but assuming it did as between Clark and Haydu and Halasz, he was the principal debtor and Haydu and Halasz were in the position of sureties. Hunt v. Gorenberg, 9 N. J. Mis. R. 463; 155 Atl. Rep. 881. As to this plaintiff all the defendants are co-sureties, bound by separate instruments. Where sureties are bound by separate instruments a release of one will not discharge the other.

Where 'two or more sureties contract severally, the creditor does not break the contract with one of them by releasing the other unless a right of contribution has been'taken away or seriously affected. 53 A. L. R. 1429. Wo such exception exists here.

A nonsuit or non pros for failure to prosecute ends only the suit in which it is entered. A second suit may lie for the same cause of action. Beckett v. Stone, 60 N. J. L. 23; 36 Atl. Rep. 880.

The more cogent reason for the conclusion that the position of the defendant here is untenablé on the ground that the release of one defendant should release another is that prior to the decision in Herbert v. Corby, 124 N. J. L. 249; 11 Atl. Rep. (2d) 240, a suit by a mortgagee could not be maintained at law against assuming grantees. That case enables the mortgagee to sue an assuming grantee at law upon the theory of a contract made for the benefit of a third party (R. S. 2:26-3.6; N. J. S. A. 2:26-3.6) and in the case of Woodbridge v. DeAngelis, 125 N. J. L. 579; 17 Atl. Rep. (2d) 542, our Court of Errors and Appeals seems to have gone a step further and permits such a suit to be brought upon an implied contract of assumption. It permits the mortgagee to sue several assuming grantees. Presumably a judgment would go against each assuming grantee, the collection thereof being controlled by the court.

These decisions lead me to the conclusion that if in a suit by a mortgagee against several assuming grantees one of them obtains a nonsuit for failure to prosecute, such cannot affect another assuming grantee who still must remain a defendant because not only the obligation of the assuming grantee who obtained the nonsuit is not discharged or released but also because the relationship of surety is not involved. Each covenant of assumption is the individual contract of that particular assuming grantee and this is a direct obligation for the benefit of the mortgagee without regard to the question of suretyship. Each assumption agreement is a separate contract but a suit upon several such contracts may be joined in the same action as was done in Woodbridge v. DeAngelis, supra.

The motion is denied.


author: Bowers, C. P. J.

text:
    Warren County Court of Common Pleas.
    HARVEY STEVENS, PETITIONER-APPELLEE, v. TOWNSHIP OF ALLAMUCHY, RESPONDENT-APPELLANT.
    Decided February 25, 1944.

      For the petitioner-appellee, Gebhardt & Gebhardt.

    For the respondent-appellant, Foley & Francis.

   Bowers, C. P. J.

This case presents the issue whether Harvey Stevens, petitioner-appellee, was an employee of the respondent-appellant, the Township of Allamuchy, and, therefore, entitled to compensation under the Workmen’s Compensation Act, N. J. S. A. 34:15-1, et seq., at the time he suffered an injury by reason of an accident occurring on May 4th, 1940.

It appears that the petitioner had been duly appointed treasurer of the respondent township in the year 1934 and had also been postmaster of the post office at Allamuchy since the year 1929.

Early in the year 1938, he received word from the Post Office Department of the federal government that he could no longer hold the dual position of postmaster under the federal government and the office of treasurer under the' municipal government of the Township of Allamuchy, and' that he must resign from one or the other. The petitioner made his choice by tendering his resignation as treasurer of the Township of Allamuchy to the township committee on' May 7th, 1938, and the resignation was accepted by the township committee on May 27th, 1938. The minutes of the respondent duly show the resignation, the acceptance, and the act of the committee in filling the office of treasurer by the appointment of Gladys Stevens (wife of the petitioner), for the unexpired term of said petitioner, and duly set the amount of the bond for the new treasurer. There is no dispute that Gladys Stevens continued to hold the office of township treasurer from the year 1938 down to the date of the accident on May 4th, 1940, and duly signed the checks authorized by the Committee.

It is claimed by the petitioner that two members of the township committee, just prior to the appointment of Gladys Stevens to fill the uhexpired term of the petitioner for the office of township treasurer, suggested that the petitioner’s wife be appointed treasurer hut that petitioner should continue to do the work of the treasurer with the exception of signing the checks, which would be done by his wife, the new treasurer, and that the petitioner could in some way get the salary of $150 per year paid for the office of treasurer from his wife. The evidence tends to show that the petitioner attended the meetings of the committee after the date of his resignation and he performed the duties of that office with the exception of the signing of checks and the presenting of the treasurer’s salary bills, which were signed by the new treasurer, Gladys Stevens. hTo record of such an agreement or arrangement between the two committee members and the petitioner is found in the minutes of the township committee. meetings.

That the petitioner suffered injuries as a result of an accident on May 4th, 1940, is conceded, but is not the paramount question to be decided in this opinion.

In considering and determining the issue here involved, we must bear in mind certain settled and basic principles. 1. 'A necessary prerequisite for recovery under the Workmen’s Compensation Act is the existence of the relation of employer-employee. Corbett v. Starrett Bros., Inc. (Court of Errors and Appeals), 105 N. J. L. 228; 143 Atl. Rep. 352; Rojeski v. Pennington Dairy Farms, Inc., 118 N. J. L. 335; 192 Atl. Rep. 746. 2. In order for that relation to exist, there must be a valid contract of service together with the right or power in the employer to control the employee with respect to the transaction out of which the injury arose. Essbee Amusement Corp. v. Greenhaus, 114 N. J. L. 492, 493; 177 Atl. Rep. 562; Rojeski v. Pennington Dairy Farms, Inc., supra (at p. 337); 192 Atl. Rep. 748.

The evidence presented conclusively proves that the petitioner was not the township treasurer at the time the accident occurred. He had in good faith, on May 7th, 1938, tendered his resignation to the township committee and the latter accepted the same on May 27th, 1938, and filled the vacancy existing by., the appointment of another person, who was the wife of the petitioner. According to the evidence, the minutes of the township committee record such resignation and subsequent appointment of another party. Tram that time on, the records are silent.

At the hearing before the Commissioner of the Workmen’s Compensation Bureau, certain oral testimony was presented, attempting to show that the petitioner had been employed in some capacity by the township committee. It is the opinion of this court, that such oral testimony should not be controlling or considered to supplement the minutes of the official body in connection with the decision of this ease. As a general proposition, a municipality becomes bound either by formal, preliminary act authorizing a thing to be done, or, in the absence of such preliminary act, by ratification. The doctrine that the official minutes of a municipal body, may be altered or supplemented by parole evidence seems to be a dangerous one and capable of introducing havoc and instability into the conduct and business of a municipality. Campbell v. Hackensack, 115 N. J. L. 209; 178 Atl. Rep. 794.

This is not a case where a person has furnished materials or labor to a municipal body, who, in turn, accepted the merchandise or work done and then refused to pay for the same on the ground that it lacked official authority to order the materials or employ the person. It is rather an attempt to hold indirectly an office which the parties concerned did not wish known by open employment by resolution and the payment of a salary direct to the person involved. Such is not an illegal act, but it appears to be an attempt to accommodate the petitioner to continue in two positions, when he knew he should surrender one, and in this case actually did by resigning as township treasurer.

The committee had not authority to control the petitioner with respect to his alleged employment. He was not the treasurer and, apparently, was not a clerk in the treasurer’s office, as no salary was paid to him and none was requested. Certainly the township committee had no authority to direct the treasurer, Gladys Stevens, even though she was the petitioner’s wife, to pay to her husband the salary the committee paid to her as an officer of the township, and there is no indication in the records that the committee ever did so order it to be done.

. The, contention of the attorneys for the petitioner, that, even if the formalities of employment such as resolutions upon the minutes were lacking, it would not be the fault of the petitioner and that, if this were always a condition precedent, all employees would need a certified copy of the resolution of their employment in order to be secure, is without merit. The petitioner claimed that he attended the meetings of the committee and, if this be true, he certainly could have heard the minutes read and should.have known that they contained no record of his employment. In any event, he had resigned his position, according to the evidence, and since the' resignation .received no wages or salary from the township; also, he knew that his wife had been duly appointed and bonded and received a salary for the office. It certainly should have dawned upon him that the committee and himself were trodding upon rather strange grounds. Since the proof is overwhelming that the said Gladys Stevens was the township treasurer, the petitioner has no grounds whatsoever on which to claim that he likewise holds that office, inasmuch as he had resigned, -the resignation accepted, his wife duly appointed in his place, she having been bonded and had never 'been removed, therefrom. The township can have only one treasurer (R. S. 40:45-13; N. J. S. A. 40:145-13) and that was Gladys Stevens, duly appointed to fill the unexpired term (R. S. 40:145-13; N. J. S. A. 40:145-13), at the time the accident occurred on May 4th, 1940.

The claim of the petitioner that the arrangement made orally between the two committeemen of the respondent township and himself, that the latter’s wife should be treasurer in name only and sign checks, and he, the petitioner, should do the work and have the salary passed over to him indirectly by her is, of course, contrary to good public policy and would not be condoned by the courts and a fortiori would not make the petitioner an employee of respondent. The testimony raising this point is rather unique as to the manner in which the petitioner testified, to wit: “They said that they had seen Mr. Cook and he communicated with the Post Office Department and looked it up and found that it was all right for me to accept and to do the work under these conditions.”

The said Mr. Cook was township attorney and absent from the hearing and the person referred to in the Post Office Department was not disclosed. Mr. Cook is in the county and could have been heard, had the petitioner desired. His absence, since this point was brought up, might create a doubt as to how he would testify. Robinson v. Equitable Life Assurance Society, 126 N. J. Eq. 242; 8 Atl. Rep. (2d) 600. It seems inconceivable that the Post Office Department would sanction that which could be done indirectly what it prohibited directly. However, this testimony is of small moment and no matter how interpreted would not in itself create the status of employer and employee between the parties to this action.

The word “clerk” has come into the case briefly, tending to show that the petitioner may have been employed as a clerk by the respondent-appellant, but an examination of the testimony, arguments and quoted authorities failed to substantiate such a claim.

The evidence negatives any thought that it was necessary to employ a clerk in the office of the treasurer or to do the treasurer’s work at the committee meetings. The small salary of $150 per year for the treasurer indicates the modesty of the position. The treasurer, Gladys Stevens, was appointed to the position and was paid for the same and she, of course, should have handled the details of the employment. Any other construction would denote an unnecessary waste of township moneys.

The.petitioner’s attorneys also suggest that the petitioner was at least a de facto employee of the township and cites in their brief N. J. S. A. 40:11-7 to the effect that a de facto employee is entitled to compensation. Although it may be true that a de facto officer or employee is entitled to payment for services rendered a municipality, notwithstanding the fact that the official body lacks authority to appoint or employ him, it does not justify the township committee to make such an arrangement with one person, as in this case, to hold the office and accept the pay therefor and another to do the work, and impose a dual responsibility on the respondent or its insurance carrier in case of liability under the Workmen’s Compensation Act.

In the case of Erwin v. Jersey City, 60 N. J. L. 141; 37 Atl. Rep. 732, it was held that "when an official person or body has apparent authority to appoint to a public office and apparently exercises such authority and the person so appointed enters upon such office and performs its duties, his official acts will be valid with respect to the public and with third persons with whom he deals officially, and he will be an officer de facto notwithstanding there was a want of power to appoint in the body or person who professed to do so.” This case also held that "when he becomes a public officer-de facto without dishonesty or fraud on his part and he renders the services required of such public officer, may recover the compensation provided by law for such services during the periods of their rendition.” This ease is cited by the petitioner’s attorneys to establish the petitioner’s right to collect for labor performed. In the opinion of the court, the present case does not come within the limitations of this decision. The respondent had an officer duly appointed who was being paid for the services she was supposed to perform. The petitioner, apparently, was doing some of the work. The public officer in the ease cited was able to collect- if no dishonesty of purpose or fraud was apparent. In the present case, it is not dishonesty or fraud, but it appears that the petitioner and respondent were attempting to void that very thing which petitioner had informed the Post Office Department that he had agreed to do, viz., resign from the treasurership of the Township of Allamnchy and continue to act as postmaster. The court would rather believe that the petitioner intended to abide by his statement to the Post Office Department in that he had severed his relations with the township government and merely was accommodating his wife, who was the township treasurer, and attended the meetings in her stead.

Therefore, finding that there was no relationship of employer and employee between the petitioner and respondent at the time of the accident, the determination and judgment of the Compensation Bureau is reversed, and the compensation to the petitioner is denied.


author: Burling, C. C. J.

text:
    Atlantic County Circuit Court.
    JACK La ROSA, PLAINTIFF, v. CHARLES H. La ROSA. DEFENDANT.
    Decided February 18, 1944.

      For the plaintiff, James M. Davis, Jr.

    For the defendant, Cole & Cole (by Maurice Y. Cole).

   Burling, C. C. J.

Motion has been made to strike out the complaint filed in the above entitled cause of action on the ground that the said complaint is sham and fails to state a cause of action upon the following grounds:

1. Said complaint is sham in that the loans allegedly made by the plaintiff to the defendant, in the amounts and on the dates alleged in the First, Second and Third Counts of said complaint were the subject-matter of the litigation between the plaintiff and the defendant in a cause tried before the Atlantic County Court of Common Pleas on April 27th, 1942, wherein Jack La Eosa was plaintiff and Charles H. La Eosa was defendant, which trial resulted in a verdict of no cause for action in favor of the defendant. The matters raised by the present complaint were found to be untrue by the jury in the foregoing cause and said matters are res judicata.

2. Said complaint fails to state a cause of action in that actions in debt, as alleged in said complaint are barred under and by virtue of the statute of limitations of the State of New Jersey, Eevised Statutes 1937, Title 2:24-1 in that said action was not commenced within six years next after the cause of such action had occurred, as by the complaint on its face will appear.

These will be dealt with in the order of presentation.

The motion under reason No. 1 is grounded in the practice provided for by R. S. 2:27-125; N. J. S. A. 2:27-125, and rule 65 of the Supreme Court, N. J. 8. A. tit. 2, and accordingly the motion was supported by the affidavit of Charles H. La Rosa and Maurice Y. Cole, together with the records of the Atlantic County Court of Common Pleas in the matter of Jack La Rosa, plaintiff, v. Charles H. La Rosa, defendant, and with a transcript of the proceedings at the trial thereof. 'The answering affidavit of the plaintiff was submitted on the argument of the motion.

In 34 C. J., p. 1057, it is stated:

“(1943) b. Manner of Pleading — (1) In General. A plea • of former recovery has sometimes been spoken of as a plea in abatement, but it is not a mere dilatory plea. While technically a plea of res judicata may be called a plea in abatement, practically speaking, it is a plea in bar, or a plea of • estoppel by record. The defense of former adjudication may Ibe raised by answer as well as.by a formal plea.”

By the provisions of modern practice, resulting from the act of'1912 (N. J. S. A. 2:27-1, et seq.) and the rules of court promulgated pursuant thereto, pleas in abatement are abolished and in lieu thereof, objection shall be made on motion. Rule 56, Supreme Court (N. J. S. 4. tit. 2); Commercial Credit Corp. v. Boyko (Court of Errors and Appeals, 1927), 103 N. J. L. 620 (at p. 625); 137 Atl. Rep. 534; Alexander v. Manza (Supreme Court, 1943), 21 N. J. Mis. R. 295 (at p. 297); 34 Atl. Rep. (2d) 11.

No -objection has been made as to the form of procedure in this matter, but the issue of a sham pleading has been accepted by the defendant, and will be accordingly disposed of.

A judgment recovered in a court of competent jurisdiction is res ad judicata as to a suit subsequently begun in another • court involving the same facts and the rights and obligations • of the respective parties resulting from those facts. Bergin v. Ganley (Court of Errors and Appeals, 1930), 107 N. J. L. 242; 154 Atl. Rep. 731.

But a matter is not res adjudicata unless there be identity •of the thing sued for, of the cause, of action, of the persons •and parties, of the quality of the persons for and against •whom the claim is made, and the judgment in the former suit be so in point as to control the issue in the pending action. To render a prior judgment res adjudícala the record must show that the issue was taken on the same allegations which are the foundation of the second action. The test is whether the proof which would fully support the one ease would have the same effect in tending to maintain the other. Hoffmeier and Sons v. Trost, 83 N. J. L. 358; 85 Atl. Rep. 221; Mershon v. Williams, 63 N. J. L. 398; 44 Atl. Rep. 211; Smith v. Fisher Baking Co. (Court of Errors and Appeals, 1929), 105 N. J. L. 567 (at p. 568); 147 Atl. Rep. 455.

In Meirick v. Wittemann Lewis, &c., Co. (Court of Errors and Appeals, 1922), 98 N. J. L. 531; 121 Atl. Rep. 670, it was held:

“This suit was brought, as disclosed by the pleadings to recover on a quantum meruit for services rendered. The second defense interposed to the suit was, the plaintiff had been employed by the defendant, as secretary at a salary of $200 a week. That case was tried on the theory of a contract between the plaintiff and the defendant. At the trial the jury rendered a general verdict against the plaintiff and in favor of the defendant. This was the defense that was stricken out.

“The recognized rule applicable to the topic under discussion, supported by a long line of cases, is thus stated in 23 Cyc. 1158 : ‘A proper test in determining whether a prior judgment between the same parties, concerning the same matters, is a bar to a subsequent action, is to ascertain whether the same evidence, which is necessary to sustain the second action, would have been sufficient to authorize a recovery in the first; if so, the prior judgment is a bar. But if the evidence in the second suit is sufficient to authorize a recovery, but could not have produced a different result in the first suit, the failure of the plaintiff in the first suit is no bar to his recovery in the other suit, although it is for the same cause of action.’ Cited, with approval in Hoffmeier v. Trost, 83 N. J. L. 358, 360; 85 Atl. Rep. 221; 15 R. C. L. 784, ¶ 239. It is quite apparent, tested by this rule, that the action of the court below in striking out the second defense interposed was not error, because the evidence which was necessary to sustain the present action'would not have been sufficient to authorize a recovery in the first action. (Italics are mine.)

An examination of the charge of the Common Pleas Court in the case in which the prior judgment was rendered discloses:

“The question for you to determine, you perceive, is altogether one of fact, whether you believe the testimony of this plaintiff that this is, as it purports to be, a simple and ordinary transaction of a promissory note being given to secure the payment of a legitimate debt; the debt, according to the plaintiff, being cash money loaned by him to his brother, in which ease, a recovery should be had. Or whether on the other hand, you believe the testimony of the defendant as to various illegalities in the paper, one of them being that it was upon a gambling debt; or the other one. that there was never any delivery of the note; or the other, that it was not intended to be a note, is as I say, a question for you to determine, and is a question of fact. The burden of proving and establishing these defenses, is upon the defendant.”

Thus it is apparent that the evidence to be presented in the trial of the pending issue to support the matter of the loans set forth in the three counts of the complaint would not have met the issue of the existence and delivery of the note of $1,830 upon which the first suit was brought. This is so, even if it be assumed that the aggregate of the loans upon which the present suit is based ($1,700) formed a part of the alleged consideration of the note of $1,830.

Applying the aforesaid principles to the facts in the present case, the motion is denied.

The second reason deals with the matter of the statute of limitation. R. S. 2:24-1; N. J. S. A. 2:24-1. This defense is the subject-matter of an answer and not of a demurrer. In the case of Callan v. Bodine (Supreme Court, 1911), 81 N. J. L. 240 (at p. 242); 79 Atl. Rep. 1057, it was held:

“In an action at law the defense of a bar of the statute of limitations is not available unless set up by plea. 25 Cyc. 1396. The defendant cannot demur to a declaration even when it appears on its face that the limitation prescribed by the statute has expired, for the principal reason that thereby the plaintiff would be deprived of the opportunity of replying that the case was within some of the exceptions of the statute, or any other matter that would prevent the bar from attaching. 13 Encycl. Pl. & Pr. 200,”

The motion is denied as to this ground.

In the moving papers, the defendant raised the further question :

“Take further notice that we shall in any event move to stay the presentation until the taxed costs due Cole & Cole, attorneys for the defendant in the sum of $52.51 as taxed in the action hereinabove more particularly referred to have been paid by said plaintiff.”

If the issues are not the same, the non-payment of costs in the first will not stay the second action. Miller v. Stieglitz (Supreme Court, 1933), 11 N. J. Mis. R. 927, 928; 168 Atl. Rep. 839.

The issues are not the same and the motion upon this ground will be denied.

In support of the motion the defendant has advanced that the present action is barred by virtue of the application of the doctrine of election and the issue has been accepted by the plaintiff. The essence of the doctrine of election of remedies is a conscious choice with full knowledge of the facts of one of two or more inconsistent remedies. It is the intentional waiver of all remedies but the one chosen. Adams v. Camden Safe Deposit and Trust Co. (Supreme Court, 1938), 121 N. J. L. 389 (at p. 394); 2 Atl. Rep. (2d) 361. It stems from the principle, rooted in reason and justice, that a party seeking legal redress shall not be at liberty of taking irreconcilable and repugnant positions. There must be in fact two inconsistent remedies available to the party seeking the enforcement of the claimed right. Adams v. Camden Safe Deposit and Trust Co. (ante). The doctrine of election of remedies, considered by eminent authority as “a harsh, and now obsolete rule” is one to be strictly confined within its reason and spirit. Adams v. Camden Safe Deposit and Trust Co. (ante). Although this case was not removed to the Court of Errors and Appeals, it was cited in Levy v. Massachusetts Accident Co. (Court of Errors and Appeals, 1939), 127 N. J. Eq. 49 (at p. 52); 11 Atl. Rep. (2d) 79. The remedies as sought by the plaintiff in this matter are not inconsistent.

Since the basis of fact of this defense is the institution of the first suit hereinbefore referred to, the defense is frivolous.

An appropriate rule in conformity herewith may be presented.


author: Delmar, J.

text:
    Bergen County Orphans Court.
    IN THE MATTER OF PROVING THE LAST WILL AND TESTAMENT OF HOWARD A. SMITH, Jr., DECEASED.
    Decided March 6, 1944.
    For the petitioner, Carlo D. Celia.

   Delmar, J.

It is well settled in this state that the Orphans Court has no original jurisdiction over the probate of wills excepting in cases arising under R. S. 3 :2-22; N. J. S. A. 3:2-22, which statute is not applicable in the case at bar because there has been no adjudication of the surrogate that any doubts arise -on the face of the will, no caveat has been put in against proving the alleged will, nor is there any adjudication by the surrogate that any dispute has arisen respecting the existence of such will. See Straub’s Case, 49 N. J. Eq. 264; 24 Atl. Rep. 569; Murray v. Lynch, 64 N. J. Eq. 290; 51 Atl. Rep. 713; In re Bolles, 115 N. J. Eq. 300; 170 Atl. Rep. 658; In re Simson's Estate, 123 N. J. Eq. 388; 196 Atl. Rep. 451.

The proceedings of the Bergen County Orphans Court are therefore dismissed.


text:
    SAMUEL COMLY, PLAINTIFF, v. FIRST CAMDEN NATIONAL BANK AND TRUST COMPANY, A BANKING CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT
    Decided March 22, 1944.
    For the plaintiff, Wertheimer & Hyman (by Alexander K. Blaib).
    For the defendant, Boyle & Archer (by Frederick P. Greiner).
   Burling, C. C. J. and S. C. C.

Motion has been made to strike out the complaint upon the ground that the same fails to disclose a cause of action against the defendant (Supreme Court rule 40; N. J. S. A. tit. 2).

The specified grounds are seven in number, and these may be dealt with in two categories:

1— That the obligations arising out of the contract are not. enforceable against the defendant as it was not a party to it. (Nos. 1, 2 and 3).

2— That by the construction of the terms of the agreement-upon which suit-is based and subsequent pleaded facts, plaintiff cannot prevail (Nos. 4, 5, 6 and 7).

In giving consideration to the motion, all facts that are-well pleaded and legitimate inference from such facts are-resolved to be true and in favor of the plaintiff for the purposes of this motion.

In disposing of the motion, the grounds in the second category will be dealt with in the first instance.

On January 30th, 1936, the plaintiff obtained a tenant, known as Benjamin Schattin for premises 3003 Pacific Ave-, nue, Atlantic City, New Jersey, who executed a lease wherein John Murphy, the owner of said premises, was the lessor.. The lease was for a term commencing February 15th, 1936,. to February 15th, 1937, and for a consideration of $1,500.. This lease was executed by the lessor and lessee, but not by the plaintiff. The lease contained the following provision:

“In consideration of services rendered by Samuel Comly as agents of the Lessor in procuring the within named tenant for the leased premises and the further consideration hereinafter named, said Lessor agrees with said agent that they shall be and remain agents for said Lessor and said leased premises mentioned so long as said Lessee is a tenant under-this lease, or any renewal thereof, or any new lease contracted within one year from the expiration hereof; said agent is to-receive a commission of 5% per cent, on the amount of rent, actually paid by the Lessee, and said agent agrees, if required by said Lessor, in consideration of said commission, to endeavor to collect the rent as it falls due; and in the event that said Lessee should purchase the leased premises during the-term of this lease, or any renewal or new lease thereon, then said Lessor agrees to pay said agent a commission of 5% upon-the purchase price.”

Support for the position of the plaintiff to maintain the-suit in this regard as being, a contract for the benefit of the-plaintiff may be found in Burt v. Brownstone Realty Co. (Court of Errors and Appeals, 1920), 95 N. J. L. 457 (at p. 461); 112 Atl. Rep. 883.

Similar provisions have been held to involve a legal contract in favor of the plaintiff without resort to the provisions of R. S. 2:26-3.6; N. J. S. A. 2:26-3.6; Burt v. Brownstone Realty Co., supra, and Tapscott v. McVey (Supreme Court, 1911), 82 N. J. L. 35 (at p. 36); 81 Atl. Rep. 348, and affirmed in (Court of Errors and Appeals, 1912), 83 N. J. L. 747; 85 Atl. Rep. 343.

In the case of Burt v. Brownstone Realty Co., supra (at p. 460); 112 Atl. Rep. 884, it was held:

“Apart from this, the argument under this point is predicated upon the assumption that the agreement under consideration is a contract between an owner and a broker and within section 10 of the statute of frauds, but, as we have-already intimated, we do not take this view. It is not an agreement to pay two per cent, on the purchase price for the services of a broker in effecting a sale; on the contrary, it is an agreement to compensate the real estate agents for negotiating a lease and endeavoring to collect the rent as it falls due; for these services they are to receive a commission of four per cent, on all rent and of two per cent, on the sale-price in case the landlord sells to the tenant. This makes the instrument as between the parties merely a contract at common law to pay certain sums of money in consideration of' certain specified services, not including the effecting of a sale.”

On the 16th day of October, 1936, a further lease was executed between the same parties for the term commencing February 15th, 1937, to February 15th, 1938, at a rental of $1,500, containing the aforesaid provision with respect to the plaintiff, Samuel Comly. He was not a party to and did not execute this instrument.

On October 6th, 1937, a further lease was entered into-between the said John Murphy and Catherine Dooley, and Benjamin Schattin, as tenant, for a term from February 15th,. 1938, to February 15th, 1940, at the rent of $3,000. This instrument did not contain any provision relating to or in reference to the plaintiff.

On October 1st, 1939, the defendant acquired title to the aforesaid premises by deed from John Murphy and Catherine Dooley. It executed a lease to the said Benjamin Schattin on October 6th, 1939, for a period from February 15th, 1940, to February 15th, 1942. This lease contained no provision relating to or in reference to the plaintiff.

Sale was made of the premises in question by the defendant to Benjamin Schattin on July 23d, 1943, for a consideration of $11,000.

Payment of commissions on rentals were terminated February 15th, 1940. The complaint alleges damages in two respects, 1 — commission of $550 upon the sum of $11,000 purchase price, and 2 — 5% of rents alleged to have been received by the defendant from February 15th, 1940, to July 23d, 1943.

Agreements of somewhat similar nature affecting property in Atlantic City and Yentnor .City have been construed by the courts of this state, and reported in Burt v. Brownstone Realty Co., supra, and Bacharach v. Mitnick (Supreme Court, 1938), 121 N. J. L. 401; 3 Atl. Rep. (2d) 92.

The defendant’s attack lies not with the theory upon which the plaintiff’s alleged cause of action is grounded but as heretofore asserted that the construction of the agreement in relation to the admitted facts bars recovery.

Even assuming that the agreement of October 16th, 1936, is a renewal of the agreement of January 20th, 1936, or that it is an independent agreement predicated upon the consideration for negotiating the lease and endavoring to collect the rent as it falls due, then the agreement of October 6th, 1937,- became a “new lease” contracted within one year from the expiration thereof (February 15th, 1938).

In the interim between February 15th, 1940, and the date of sale, a further “new lease” dated October 16th, 1939, and contracted more than' one year from the expiration date (February 15th, 1938) hereinbefore referred to was entered into by the defendant and Benjamin Schattin and no mention of the plaintiff was contained therein and no payments were made to him thereunder.

The sale was made (July 23d, 1943) subsequent to the expiration (February 15th, 1940) of the “new lease” dated October 6th, 1937, hereinbefore referred to and commissions upon rentals were voluntarily paid to February 15th, 1940, expiration date of the “new lease,” despite direct payments of rent by the lessee to the lessor.

As stated heretofore previous adjudications of a somewhat similar agreement have adjudged a contract of this nature not to be an agreement to pay for services in effecting a sale but rather compensation to the real estate agent for certain specified services, not including the effecting of a sale, rendered during the term of the agency. The reward was both in payment of a percentage of rents collected regardless of whether the service was rendered by the agent or not, and for further compensation based upon a percentage of the sales price of the premises if made to the tenant. The limitation was during the period of plaintiff’s agency and only during such was compensation payable.

The contract contains a formula for the limitation of the period of plaintiff’s agency and that specified period definitely spent itself. The reasons assigned in the second category are meritorious and will be sustained.

By virtue of the disposition of the reasons assigned in the second category in favor of the defendant it becomes unnecessary to dispose of the reasons assigned in the first category. However, it may be said that as a general rule an action on a contract cannot be maintained against a person who is not a party to it. 17 C. J. S., Contracts, 1143, § 520. The mere allegation of acquisition of possession by the defendant, subject to the rights of the tenant, Benjamin Schattin, for the benefit of the plaintiff, is relied upon as the basis of the right of action against the defendant in this regard.

Paragraph 11 of the complaint alleges the following:

“The said defendant, First Camden National Bank and Trust Co., had knowledge of the provisions of the terms of the aforesaid lease as set out in paragraph 4 and ratified said proviso and participated in the payment of commissions on rentals.”

Batifieation is attempted to be spelled by the action of the defendant in making payment of compensation upon rents received by it between August 1st, 1939, the date of acquisition of title by it, and February 15th, 1940, the termination of the term of the lease dated October 6th, 1937, so called “new lease.” The theory of liability upon this position is apparently upon the premise that by its act of payment of a percentage of the rentals collected during the period aforesaid constituted a factual question of adoption by it of the effect of the terms of the lease of January 30th, or October 16th, 1936. As pointed out in the first part of this opinion, any potential liability had expired so there remained nothing to ratify. Even so defendant could pay compensation in the form of commission based upon rents to end of agency (February 15th, 1940) and still repudiate further liability. Smith-Austermuhl Co. v. Jersey Rys. Adv. Co. (Court of Chancery, 1918), 89 N. J. Eq. 12 (at p. 16); 103 Atl. Rep: 388, Bone of the leases contained any express provision that they were to be binding upon the successors in title or assignees of the lessor. The defendant further contends the inference to be drawn from the decision of the court in the case of Bacharach v. Mitnick (at p. 404); 3 Atl. Rep. (2d) 92, is to the effect that any liability is limited to a purchaser from the lessor who executed the agreement. This contention is not required to be met in the disposition of this motion, for even upon the assumption that the agreement under consideration is binding upon the defendant, still the reasoning applied in the disposition of the first category of this motion is applicable, and no cause of action is maintainable.

An appropriate rule may be presented to strike out the complaint.


author: Perskie, J.

text:
    BOARD OF COMMISSIONERS OF THE CITY OF BAYONNE ET AL., PROSECUTORS, v. THE BOARD OF EDUCATION OF THE CITY OF BAYONNE ET AL., RESPONDENTS.
    Argued December 16, 1943
    Decided January 17, 1944.
    Before Justices Hehee and Peeskie.
    For the prosecutors, Collins & Corbin and William Rubin (Edward A. Markley, of counsel).
    For the respondents, John Warren (Raymond J. Cuddy, of counsel).
   The opinion of the court was delivered by

Perskie, J.

This is an application by respondents for an order to limit the issues and depositions to be taken in support thereof to the inquiry as to “whether or not” respondent Board of Education of the City of Bayonne had the “power” and “need” to pass the resolutions under review and to strike all other reasons set down by prosecutors for setting aside the challenged resolutions.

Although respondent has abandoned its ground to quash the writ for lack of diligence in the prosecution thereof, nonetheless, it is urged that we should further order the completion of the depositions within a time fixed to the end that this cause may be heard on its merits at the January, 1944, term of this court. A chronological statement of the steps taken in this cause is advisable.

On November 6th, 1943, the Chief Justice allowed prosecutors a writ of certiorari to review the resolutions which respondent had adopted on August 7th, 1943, September 2d, 1943, and October 21st, 1943. The writ contained the legend that it was “not to prevent individual respondents from continuing to work in their designated capacities.”

On November 26th, 1943, respondent filed its return to the writ.

On December 3d, 1943, prosecutors filed their reasons.

On December 16th, 1943, the motion was argued and leave was granted to respective counsel to file briefs, the last of which came to us during the last week of December, 1943. The taking of the depositions, we are told, had been noticed to begin, on December 20th, 1943, and was to be continued throughout December 21st and 22d, 1943. Nothing is presently before us to indicate that the cause will not be ready for presentation at the January, 1944, term.

There is no need to detail the many resolutions in issue. It is sufficient to observe that by these resolutions the personnel of the Bayonne school system (consisting of 'teachers, principals, vice-principals, secretaries, janitors, engineers and others), was increased by 93 or more persons, that tenure was given concurrently with appointments, that promotions and increase of salaries of former appointees were made, and that the additional costs thus incurred was $150,000 for the school year of 1943-1944.

Prosecutors set down twelve reasons upon which they base their contention that the resolutions should be set aside. Here, too, there is no need for details. An epitomized statement of their substance shall suffice. They charge “abuse of discretion,” “bad faith” and “politics.” In support of these charges, briefly stated, it is alleged that the increase in personnel was made in face of a marked and continued diminution in the number of pupils, of an abandonment, for like reason, of the use of two school buildings, of lack of sufficient work for those already in the system, and in face of an over and illegal expenditure, in excess of the fixed appropriation, of $150,000 for the school year of 1943-1944. It is specifically alleged that the resolutions were adopted to discharge political obligations of the outgoing commissioners whom the then majority of the membership of the Board of Education had supported for re-election. In short, venal “politics” is charged by the prosecutors who were elected as city commissioners in May of 1943. Eespondents, in turn, charge prosecutors with the same brand of politics, of bad faith.

The burden is on prosecutors to establish, by proper proof, the truth of their charges. Cf. Margerum v. Princeton, 120 N. J. L. 36, and cases collated (at p. 39); 198 Atl. Rep. 385; Peter’s Garage, Inc., v. Burlington, 121 N. J. L. 523, 527; 3 Atl. Rep. (2d) 634; affirmed, 123 N. J. L. 227; 8 Atl. Rep. (2d) 910; Murphy v. Bayonne, 130 N. J. L. 336; 32 Atl. Rep. (2d) 832; Taggart v. Altman, 130 N. J. L. 563; 33 Atl. Rep. (2d) 916. They are entitled, as a matter of right, to the fullest opportunity properly to do so. Ho word nor judgment of this court shall deprive them of that right.

The motion is denied, with costs.


text:
    THE BOARD OF EDUCATION OF THE CITY OF BAYONNE, RELATOR, v. RICHARD F. FLOOD, Jr., CUSTODIAN OF SCHOOL MONEYS OF THE SCHOOL DISTRICT OF BAYONNE, RESPONDENT.
    Argued December 16, 1943
    Decided January 17, 1944.

      Before Justices Heher and Pbrskie.
    For the relator, John Warren (Raymond J. Cuddy, of counsel).
    For the respondent, Collins & Corbin and William Rubin (Edward A. Markley, of counsel).
   The opinion of the court was delivered by

Perskie, J.

This case follows in the train of the case of The Board of Commissioners of the City of Bayonne et al. v. The Board of Education of the City of Bayonne et al., on certiorari. In that case a motion was addressed to the limitation of the issue and the taking of depositions, &c. We have this day denied that motion. Atl. Rep. (2d)

Following the allowance of the writ of certiorari in the aforestated case, the Chief Justice, on November 20th, 1943, allowed relator, The Board of Education of the City of Bayonne, an alternative writ of mandamus against respondent, who is the- custodian of the school moneys of the School District of Bayonne and also the treasurer of that city.

By this alternative writ, respondent was, in substance, commanded to draw cheeks, or show cause to the contrary, for the salary of each person affected by the resolutions (August 7th, 1943, September 2d, 1943, and October 21st, 1943) which are challenged in the certiorari case; and to make checks in the sum stated on the payrolls for the periods from August 1st to August 31st, September 1st to September 30th, and October 1st to October 31st, 1943, to the extent that each person had not. as yet been paid' as evidenced by the payrolls wliich were alleged to have been “duly and regularly prepared, certified and delivered to [respondent] * * See R. S. 18:5-55.

Respondent by his return to the writ, briefly stated, denied that said persons were lawfully entitled to the salaries stated on the payrolls and denied the legality of the payrolls as prepared and certified and delivered to him. Those denials are bottomed on the premise that the payrolls as delivered to him were not in the same form as delivered to the Comptroller of the'City of Bayonne, because, as so delivered, the Comptroller refused to sign them. Instead, the Comptroller struck from the payrolls the names of all persons who were given office or position by virtue of the challenged resolutions in the certiorari ease and also struck the increases of salaries which were given to other persons by virtue of the same resolutions. See R. S. 18:6-77, 18:6-79, 18:6-81 and 18:6-82; N. J. S. A. 18:6-77, 18:6-79, 18:6-81 and 18:6-82. Respondent further denied that the newly appointed persons hold a de facto office or position in the school system of the city. In further support of his position in the premises, respondent urged the same reasons (venal politics, bad faith, &e.), which are urged by prosecutors in the certiorari case.

Relator moved to quash the return. It takes the position, namely, “admitting all of the facts which respondent may legally assert,” the return is legally insufficient to justify the refusal of the respondent to perform his statutory and administrative duties. Por, relator maintains that respondent is merely the “keeper” of its funds and therefore has no right to question the legality of the relator’s acts, or “motives” of its members, especially so since the certification of the payrolls stands “unimpaired” and cannot be questioned “collaterally” by “respondent” or anyone else.

We think that the motion to quash the return must, under the circumstances, be denied.

It is the law that in the absence of a judicial determination that the salaries here sought are due relator’s employees, mandamus will not lie for their recovery. This, as has been pointed out, is based on the “fundamental ground” that the ‘legal right must be clear.” The established procedure, where the “right to the salary is asserted and denied, is by the ordinary suit at law.” Butler v. Plainfield, 5 N. J. Mis. R. 170; 135 Atl. Rep. 669; Boyle v. Freeholders of Passaic, 120 N. J. L. 552; 1 Atl. Rep. (2d) 40. The claim to the salaries must be “so clear that there remains only the ministerial duty to pay it.” Kelley v. Board of Chosen Freeholders, Passaic, 118 N. J. L. 450, 455; 193 Atl. Rep. 553.

The circumstances in the case at bar disclose that the right to salaries, increases in salaries, and the method of collection thereof are in a large measure, if not entirely, dependent upon the disposition of the case on certiorari. If prosecutors in that case should fail then the rights to the salaries and increases of salaries in issue would follow as a matter of course. Hot so if prosecutors should prevail. For then other questions still remain to be determined. Are the claims for salaries and increases so clear that there remains only the ministerial act to pay them? Can claimants be de fade holders of an office or position without the existence of a de jure office or position? See Blair v. Brady, 11 N. J. Mis. R. 854, 857; 168 Atl. Rep. 668; Toomey v. McCaffrey, 116 N. J. L. 364, 367; 184 Atl. Rep. 835. If they are de facto holders of offices or positions, and are entitled to “compensation appropriate to such office or position” by virtue of R. S. 18:5-50; N. J. S. A. 18:5-50 (Cf. Freudenreich v. Mayor, &c., Fairview, 14 N. J. Mis. R. 804 (last paragraph, p. 806); 187 Atl. Rep. 555), are they not obliged to resort to the ordinary procedure, an action at law, to establish their appropriate compensation? Cf. Butler v. Plainfield, supra; Boyle v. Board of Chosen Freeholders, supra; Kelley v. Board of Chosen Freeholders, supra; Freudenreich v. Mayor, &c., Fairview, supra.

If, as indicated, further actions by relator becomes necessary, the ordinary action at law shall clarify and determine the rights of the respective parties.

Accordingly, the motion to quash is denied, with costs.


text:
    AUTOMOBILE BANKING CORPORATION, PLAINTIFF, v. WILLIAM T. BIRKHEAD, INDIVIDUALLY, AND VERTNER MOTORS, INC., DEPENDANTS.
    Decided March 22, 1944.
    For the plaintiff, Albert Bathblott.

    For the defendant William T. Birkhead, W. Louis Bossle.

   Burling, C. C. J. and S. C. C.

Motion has been made by the defendant William T. Birkhead to open and set aside a judgment as to him, pursuant to Supreme Court rale 94 as recently amended, N. J. S. A. tit. 2, obtained by default against the defendants William T. Birkhead, individually, and Yertner Motors, Inc.

Judgment was entered in the Supreme Court the 16th day of December, 1943, in favor of the plaintiff, and against both defendants. Judgment was entered by default and recited that the defendants failed to appear and defend this action within the time allowed by law.

Pursuant to the terms of a rule to show cause entered herein, depositions have been taken for use in the disposition of this rule, and argument has been made on the return of said rule by the respective parties and due consideration has been given thereto, together with the depositions and exhibits presented.

Defendant Birkhead’s attorney gave notice of a motion to' obtain a rule for security for costs before me which was returnable on November 25th, 1943. The attorney elected to proceed with respect to obtaining security for costs by way of motion, and not to rely solely upon the provisions of R. S. 2:27-424; N. J. S. A. 2:27-424, in order to meet as he deemed wise the deficiencies referred to in the opinion reported unofficially in Center Co-operative Corp. v. Hawthorne Ice Co. (Supreme Court, 1942), 65 N. J. L. J. 561, as follows:

“As there is no proof that plaintiff has no principal office in this state and no agent resident here upon whom process may be served, the plaintiff is resident de facto corporation and not a non-resident obliged to post security.”

This course by the defendant was pursued despite the fact that the common law practice for compelling security for costs by rule was superseded before notice of trial by notice above referred to (R. S. 2:27-424).

Upon the eve of the return day of the motion (November 25th, 1943) and by letter dated November 29th, 1943, plaintiff’s attorney conceded defendant Birkhead’s right to security for costs.

The return upon the summons by the sheriff elicited service upon this defendant at his place of residence. A re-service of the summons was made on November 29th, 1943. The cause thereof is in dispute. The defendant’s attorney asserted he was advised by the plaintiff’s attorney that it was done to perfect the service upon the corporate co-defendant. Plaintiff’s attorney now asserts it was because the original sheriff’s return certified:

“Served the within summons and complaint upon William T. Birkhead, individually, and Vertner Motors, Inc., the within named defendants,' November 10, A. D. 1943, by leaving a true copy of the within for William T. Birkhead, and a true copy of the within for William T. Birkhead registered agent of Vertner Motors, Inc., at his residence, 436 Melbourn Avenue, Beverly, Burlington County, New Jersey, with a member of his family above the age of fourteen years, to wit: with his sister, Helen Dixon,” and that the statute required substituted service to be “left at his usual place of abode.” R. S. 2:27-59; N. J. S. A. 2:27-59.

Be that as it may, security for costs ($100 in cash) was deposited with the clerk, but no advice of that fact was given to the defendant as required by R. S. 2:27-427; N. J. S. A. 2:27-427, nor is this failure explained but the plaintiff’s attorney proceeded to obtain a judgment by default on December 16th, 1943, upon the premise that the defendant Birkhead failed to appear and defend within the time allowed by law, and upon the further premise that an affidavit of merits was not filed.

The complaint had endorsed thereon a demand for an affidavit of merits (Supreme Court rule 77; N. J. S. A. tit. 2). Since the service in the first instance was not personal, it was ineffective in relation thereto. It is asserted by the plaintiff’s attorney that the notice prescribed by R. S. 2:27-424 was not given and that such statute superseded common law practice of obtaining a rule, Sheehan v. LaBelle Co. (Supreme Court, 1918), 92 N. J. L. 315 (at p. 316); 105 Atl. Rep. 449. This position is inconsistent in view of his concessions of November 2oth, 1943, by telephone and November 27th, 1943, by letter, and of the consequent abandonment of pursuit of the motion by the defendant on the 27th day of November, 1943, to obtain a formal rule. Further, subsequent to the entry of the default judgment, rule was presented by plaintiff’s attorney to the Supreme Court and obtained by him for the return of the deposit. The form of rule recited:

“This matter being opened to the Court by Albert Rathblott, Attorney of Plaintiff and it appearing that the defendants, William T. Birkhead and Vertner Motors, Inc., demanded that the plaintiff deposit security for costs.”

The notice of motion by the defendant for a rule for security for costs was made without reservation and constituted a general appearance and recognized the jurisdiction of the court, thereby obviating the necessity of re-service, even if the original service was faulty and it has not been Contended by the defendant that the service which was initially made was not at defendant’s “place of abode.”

The restraint as provided by R. S. 2:27-426; N. J. S. A. 2:27-426, was in effect at the time of the second service. The defendant was entitled to ignore the second service and judgment based upon the failure to file affidavit of merits grounded in the second service was improperly entered.

A further examination of the complaint, depositions and exhibits evinces sufficient merit to justify consideration of the case by a trial court.

The judgment will be opened and set aside as to the defendant William T. Birkhead. R. S. 2:27-194; N. J. S. A. 2:27-194.

The execution issued upon said judgment to the sheriff of Burlington County will- be vacated as to the said William T. Birkhead, and any levy made thereunder by the sheriff of the County of Burlington as to the said William T. Birkhead will be removed.

Security for costs are to be furnished by the plaintiff and thereupon the defendant William T. Birkhead will plead or otherwise address himself to the complaint within ten days after, the reception of notice of filing of security for costs. The costs of this motion are to be assessed against the plaintiff.

An appropriate rule may be presented.


author: Hartshorne, C. P. J.

text:
    Essex County Court of Common Pleas.
    BIRLS HAILEY, ADMINISTRATOR OF THE ESTATE OF MILTON HAILEY, AND ADMINISTRATOR AD PROSEQUENDUM OF MILTON HAILEY, AND LINEAL HEIR OF MILTON HAILEY, PLAINTIFF, v. CITY OF NEWARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT. LOYNE LYONS, AN INFANT, AND HIS NEXT FRIEND, MARY E. WATSON, PLAINTIFFS, v. THE CITY OF NEWARK, DEFENDANT.
    Decided March 7, 1944.

      For the plaintiffs, Thomas Potter.

    For the defendant, Raymond Schroeder (Louis A. Fast).

   Hartshorne, C. P. J.

In the light of the decision of the United States Supreme Court in City of Chicago v. Sturges, 222 U. S. 313; 32 S. Ct. 92, holding statutes such as this constitutional, and recognized as due process of law from earliest Anglo-Saxon times, even though imposing absolute liability as distinguished from a liability founded upon negligence, the city withdrew its constitutional objection, but pressed the objection that, among other things, the complaints did not show that they fell within the limits of responsibility created by the statute. Specifically, the defendant objected that the complaints did not set forth facts showing that the mob violence, exerted upon the injured plaintiffs in both cases, was so exerted by the mob “for the purpose of exercising correctional powers or regulative powers over any (such) person,” or that in the count for the death of Hailey, same was caused “by lynching.” Thereupon the court stayed defendant’s motions on condition that plaintiffs amend both complaints to comply with the statute. Such amended complaints having been filed, defendant renewed its above motions thereto.

The question thus is whether the above amended complaints are authorized by the above statute, and more particularly, whether it is essential that such complaints as to personal injuries allege facts showing that the purpose of the mob in its violence was that “of exercising correctional powers or regulative powers” over- the persons injured, or that such persons were “supposed to have been guilty of a violation of the law,” and that, as to the person killed, same was caused “by lynching.” This requires a consideration of the statutory terms and intent.

Here it must be borne in mind that mob violence is the subject, not of a single act, but of three separate statutes. The earliest in point of time (enacted in 1864) gives a civil remedy for damage to property only (Pamph. L. 1864, p. 237; R.S. 2:63-1 to 9; N. J. S. A. 2 :63-1 to 9); the next, enacted in 1923, as revised, defines a “mob” and imposes criminal penalties (Pamph. L. 1923, ch. 147, p. 316; R. S. 2:152-1 to 3; N. J. S. A. 2:152-1 to 3); the third imposes a civil liability in damages for either property damage or personal injury in one section, and in another for loss of life “by lynching,” this in turn being based upon the above 1923 act, but now appearing separate from the above criminal provisions of such act. (R. S. 2:63-10, 11; N. J. S. A. 2:6 3-10, 11.) It is under the last of the above acts that the present amended complaints are alleged to lie. This act has apparently never been judicially construed previously.

The previous decisions of our courts as to mob violence (Carey v. Paterson, 47 N. J. L. 365; 1 Atl. Rep. 473; Clark Thread Co. v. Hudson County, 54 N. J. L. 265; 23 Atl. Rep. 820; Wells Fargo v. Jersey City, 207 Fed. Rep. 871; affirmed, 219 Id. 699; certiorari denied, 239 U. S. 650; 36 S. Ct. 284), all dealt with the first of the above statutes, and this statute expressly covered property damage in consequence of “any mob or riot” (Pamph. L. 1864, p. 237, § 1). It is in nowise limited by the correctional or regulative purpose of such mob, or by the provision that the mob should have paused the - death in question “by lynching,” as is the statute on which the present complaints are based. Moreover, since these mob violence statutes are all of them in derogation of the common law, it is elemental that they are to be strictly construed. Wells Fargo v. Jersey City, supra.

Consequently, when the legislature adopted the second of the above acts in 1923, and both enlarged the damages recoverable thereunder to include injury to persons and loss due to death, and also restricted the kind of mob violence which should give rise to such actions for damages, to such mob violence as was exercised on “anyone supposed to have been guilty of a violation of the law, or for the purpose of exercising correctional powers or regulative, powers over any (such) person,” it clearly made such restrictions, and that as to “lynching,” of the essence. If otherwise, any ordinary assault upon any person by five or more individuals would give rise to an action for damages against the city in which such assault occurred, and the cities and counties of our state would thus find themselves faced with civil actions for damagesj based-on absolute liability, brought by everyone who was assaulted or robbed, for instance, by such a group.

' In short, the intent of this statute is not to impose aü .absolute liability on a municipality to every person injured by the acts of criminals, since crime is bound to occur to some extent, no matter how efficient the municipality’s law enforcement may be. But the statutory intent is, to impose such responsibility on a municipality, in eases where its law enforcement has become so inefficient, that the populace, or a portion of them) have felt, rightly or wrongly, that they were compelled to take the law into their own hands, for the purpose of maintaining law and order. (And in the instaát situation it should he noted that both the leaders of the mob in question have been indicted and sentenced to state prison, one for second degree murder, the other for manslaughter.)

Thus the statute in question only covers cases where the person, whose death was caused, was “lynched,” and where the personal injuries complained of were suffered by one whom the mob “supposed to have been guilty of a violation of the law,” or upon whom the mob intended to exercise “correctional powers or regulative powers.” A similar result has been reached by the decisions in various other states under strikingly similar statutes. Barnes v. Chicago, 323 Ill. 203; 153 N. E. Rep. 821; 52 A. L. R. 560; Green v. Greenville County, 176 S. C. 433; 180 S. E. Rep. 471; Lexa v. Zmunt, 123 Ohio St. 510; 176 N. E. Rep. 82; Shake v. Commissioners, 210 Ind. 61; 1 N. E. Rep. (2d) 132; Reynolds v. Lathrup, 133 Ohio St. 435; 14 N. E. Rep. (2d) 599; Anderson v. Chicago, 313 Ill. App. 616; 40 N. E. Rep. (2d) 601.

Lynching connotes the summary and illegal meting out of the punishment of death upon one suspected of crime. Black Law Dictionary, p. 737; 2 Bouvier Law Dictionary, p. 2058. Green v. Greenville County, supra; Barnes v. Chicago, supra. In the count for the death of Milton Hailey, it is nowhere alleged that he was suspected of having been guilty of any crime, nor is such an allegation made in the particulars given by plaintiff in answer to defendant’s demand. Since this situation exists even after plaintiff’s attention was directed to such possible defect in his original complaint, it must be assumed that the lack of this allegation in the present amended complaint is not a mere second oversight on the part of counsel, but evinces the lack of facts which would bring such case within the statute.

Turning to the count in the Hailey case for personal injury preceding death, we find that, despite the fact that plaintiff was given special leave to amend his complaint in order to allege the fact that plaintiff’s decedent was personally injured, either because he was “supposed to have been guilty of a violation of the law” or because the mob was intent on “exercising correctional powers or regulative powers” over him, there is no allegation whatever that Milton Hailey was supposed by the mob to have been guilty of such a violation. And while the complaint states, simply repeating the statutory terms, that the mob was gathered “for the purpose of exercising correctional powers or regulative powers by violence,” there is not only no allegation of fact in support of this mere conclusion of law, but the particulars, furnished in support of the complaint, themselves contain no such facts. While it is true that “acts may be stated according to their legal effect,” yet “in so doing the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove.” (S. C. B. 35; N. J. S. A. tit. 2.) And the “pleader must state sufficient facts to enable his adversary to meet fairly the issue propounded.” New Jersey Co. v. Lehigh Valley Railroad, 92 N. J. L. 467; 105 Atl. Rep. 206. Harris Pleading, § 287. Since this condition still exists after plaintiff was on notice of this possible defect in his pleading, it is not only clear that this count in the complaint is not sufficient, but it would appear that the facts are lacking to make it so.

Turning now to the Lyons complaint, we find exactly the same situation to exist, as discussed in the personal injury count of the Hailey complaint. The language of the complaint is substantially identic therewith, both in its original and amended form. The particulars furnished on defendant’s demand are also substantially identic with those furnished in the Hailey case. The conclusion reached in the Hailey case of necessity follows as to the Lyons case.

The complaints in both the above cases will consequently be stricken.


author: Martino, D. C. J.

text:
    Camden City District Court.
    GEORGE FERRIS, PLAINTIFF, v. LOUIS R. MANCINE, DEFENDANT.
    Decided March 30, 1944.
    For the plaintiff, Francis J. Smith.

    For the defendant, Harry M. Mendell.

   Martino, D. C. J.

Judgment was entered in behalf of the plaintiff, George Ferris, in the Camden City District Court on February 18th, 1944. On February 29th, 1944, the plaintiff levied an execution upon a bank account of the defendant. Subsequent thereto but on the same day the defendant filed a notice of appeal and a bond approved by this court, pursuant to R. S. 2:32-206; N. J. S. A. 2:32-206. The notice of appeal was filed within the time provided by law. Defendant made application to discharge the levy upon his bank account, and plaintiff offers resistance to the application.

hTeither counsel produces any positive statement of law authorizing the court to discharge a levy on personal property, which levy is made before a timely notice of appeal and bond are filed. It is true that R. S. 2:32-2; N. J. S. A. 2:32-2, provides that “except where there is an express provision of law providing otherwise the practice and procedure in the Circuit Courts which, in so far as applicable apply to the District Court.” Counsel for defendant cites R. S. 2:27-374; N. J. S. A. 2 which only provides for a court order discharging real estate of appellant from the lien of the judgment appealed from after appellant has complied with the provisions of that act upon posting of a proper amount to secure the payment of such an amount as may finally be determined and ascertained' to be due in the action with the clerk of the Supreme Court, Circuit Court or Court of Common Pleas. This statute pertains to real estate and is not applicable.

R. S. 2:32-208; N. J. S. A. 2:32-208, provides that an appeal to the Supreme Court as herein authorized shall operate as a stay of proceedings only after security given or money paid into court as provided by section 2:32-206. Nowhere in the District Court Act or in the statutes covering the other law courts is there a provision which will give the judgment-debtor herein involved the relief he asks. Since there is no positive right outlined in the law the power of giving this relief must, if it exists at all, arise in some equitable control of a law court over its own proceedings.

The levy was issued by the District Court. Its execution was consummated by duly authorized officers of the District Court. The money is presently within the control of. the District Court. The timely and proper steps in the appeal prohibit any further proceedings in the execution. The bond filed and approved by the judge of the court will insure the payment of the judgment should the appeal be discontinued or dismissed. No harm can therefore befall the judgment creditor. The defendant in the meantime is handicapped with an arrested bank account. It is the established practice of courts of law to exercise such control over their own proceedings, judgments and processes as to see 'that justice and equity are done with respect to the disposition of the proceeds of a judgment. Johnston v. Bowers, 69 N. J. L. 544; 55 Atl. Rep. 230.

It is well settled that courts of law have a summary jurisdiction of an equitable nature exercised through stay of execution and the like for the purpose of preventing its own judgments and processes from being made the means of working injustice. Miller v. Barber, 73 N. J. L. 38; 62 Atl. Rep. 276. Instances of the control exercised by the court over the funds produced by execution, in distributing them among successive execution creditors are found in Stebbins v. Walker, 14 N. J. L. 90; 25 Am. Dec. 499, and Cox v. Marlatt, 36 N. J. L. 389; 13 Am. Rep. 454. The power of the court to order one judgment to be set off against another is an exercise of the same equitable control. Hendrickson v. Brown, 39 N. J. L. 239.

Therefore it is concluded that until the process was finally executed, that is, the money paid to the judgment • creditor, control does exist in this court to summarily discharge the levy on the personal property and to that end I shall sign an order upon its presentation.