author: Ingersoll, V. C.

text:
    In the matter of Dorothy Flemings, a minor.
    [Heard and determined July 1st, 1924.
    Filed September 10th, 1924.]
    Divorce, — Custody of Child — Temporary Order to Remain in Legal Custody of Father with Temporary Possession of Mother Pending Final Disposition — Conditional on Agreement Not to Influence Child Against Other Parent.
    On petition for habeas corpus. On final hearing.

      Mr. Morris Bloom, for the complainant.

      Messrs. Bab code & Champion, for the defendants.
   Ingersoll, V. C.

I agree with Mr. Bloom that any order at the present time should be in the nature of a temporary arrangement. I .am not as well impressed with the conduct of the petitioner as I might be. It is, perhaps, impossible to describe or state why that impression exists. I am impressed with the fact that I must believe the statements of the two officers of the .court who testified as to statements made by this woman in the court room during the recess of the hearings yesterday. I can’t believe that Mr. Sacks and Mr. Jacob.y, both attomeys-at-law, would say to the court that this woman used such vile remarks concerning her husband unless it was true. If it were true, and she admitted it, that it was done in the heat of her feeling, under such circumstances I would feel that it had done her case less harm than it would now, in the face of her denial of making such statements when I must believe the statement of those attorneys.

I,mention that particularly because that is hound to have its effect upon my mind. The court cannot at this moment give the possession of the child to the wife unless the court does one or two other things, and that is arrange for the support of the child, and to some extent of the mother hv the order in which possession is given. I do not.feel that the court is now in position to do that, and, right in that line, it was evidently the expectation and the intention of the mother to immediately remove this child from this jurisdiction to Pennsylvania. She right frankly states so, and T do not feel that she can change her desires and her willingness so promptly now, and have arrangements made by which she can take care of this child.

The court will make a temporary order only that the child may remain in the custody of the father, but that access and temporary possession of the. child may be had by the mother, and I think counsel ought to be able to agree upon some times and the number of times that that can he arranged for. If counsel cannot agree on that, the court will make some arbitrary order.

This is only a temporary order during the summer months, and the petitioner is at liberty to make application later, or a renewal of the present application or such other application as counsel may advise.

Without doubt, if circumstances were anywheres nearly equal, the custody of the child, less than five years old, especially a child who needs medical attention, should be placed in the custody of the mother, but, I find the circumstances such in this case that the court is hound to make this temporary order of a refusal of the habeas corpus for physical possession of the child by the mother, but that that refusal must be accompanied by an order giving her the opportunity at every reasonable and frequent times to have the child. Counsel can agree upon some formal order, can’t you?

Mr. Babcock — May I state to your honor that Mr. Flemings is perfectly willing that she shall have access to the child at all reasonable times, but I think a suggestion would be very wholesome to the lady that upon seeing the child she must not create any disturbance. That is the only thing we object to, is the disturbance which she has made, not her right to see the child at all times.

The Court — There is also this comment that the court must make, no matter which one it applies to, there mustn’t be any action on the part of either parent endeavoring to estrange the child’s affection from the other parent. If I should find that the husband had in any way taken any steps to estrange this child from its mother, I would immediately take the possession of the child from him, irregardless whether I would have to send it to some institution, perhaps. The unhappy and unfortunate differences between the man and wife must not extend down to the child. Prepare such on order, gentlemen, and I will sign it, understanding that it is temporary.


source: Caselaw Access Project

license: Public Domain

text:
    Morris Kotok and Percy Cordon, trading as Kotok Brothers, complainants, v. John Klein and Elizabeth U. Klein, defendants.
    [Heard and determined June 12th, 1924.
    Filed September 10th, 1924.]
    Specific Performance — Definiteness of Terms of Agreement Raised — Burden of Proof on Party Making Allegation — Performance Advised.
    On bill for specific performance. On final hearing.

      Mr. Francis A. Stanger, Jr., for the complainants.

      Mr. Donnelly, for the defendants.
   Ingersoll, V. C.

This case, as it stands, I think can he determined by me without any further consideration. The parties herein made an agreement under their seals, hearing date the 2d day of November, 1923, wherein the defendants agreed to convey a certain property to the complainants, the property being specifically described, for the sum of $4,500, payable— $500 upon, the signing and delivery of the agreement, which was actually paid, a $2,000 mortgage, which was to run two years, bearing six per cent, interest, and $2,000 to be paid in cash on or before the 4th day of February, 1924, at which time a deed will be given free and clear of all encumbrances, also included a clause that all adjustments shall be made as of day of settlement, and specifies a place where that settlement shall be made. There Is also a clause providing that if the party of the first part meets with obstacles in the repairing or rebuilding of the adjoining building, and becomes entangled with the said city of Bridgeton in a law suit, and said law suit is lost, said deposit of $500 is to be returned and the sale to become void.

This contract was prepared by Mr. Elbion, by reason of instructions given to him by Irving Kotog and Klein, after-wards, as I say, reduced to writing and signed by all the parties, and the acknowledgment taken by Mr. Elbion. The other defense as pleaded by the defendants is that the agreement is indefinite, uncertain and incomplete.

I am satisfied that this agreement is not indefinite, uncertain, or so incomplete as to be unenforceable. The land is specifically described. The amount of the consideration is specific, and the statements to be made are specific. It is true that the payment of interest is not specified whether it is to be in advance, semi-annual, annual or at the expiration of the term of two years, but I do not think that is sufficient to say that the contract is incomplete. Particularly is that true when it is admitted bjr all that that provision was changed to the extent that upon the request of the party of the first part the partjr of the second part agreed to cash instead of giving him this mortgage. Nor do I think the question of all adjustments shall be made as of the day of settlement is • incomplete. I think it is clear that in the course of purchase and sale of real estate that that is thoroughly understood as not being indefinite.

The claim is, however, that this contract does not set forth the terms of the agreement which had been entered into between the parties. Of course, the burden of proof of that is upon the party alleging that the contract is incorn1 píete. There has been nothing shown that would lead the court to believe that Mr. Elbion, the serivenor, defrauded or deceived the parties into signing an agreement which did not embrace the terms which had been agreed upon. Taking the testimony of both Mrs. Klein and Klein, corroborated in a very minor point by the witness produced by them, considering the testimony of the two Kotoks, I would perhaps feel that there could be considerable question in my mind which, party was giving to the court the true facts of the case, but after considering Mr. Elbion’s testimony, Mr. Stanger’s testimony, and also the testimony of Mr. Kauffman, prodneed by the defendants, I cannot help but believe and decide that defendants have not shown to the. court anything which would justify the court in saying this contract did not embrace the full terms of the agreement entered into between these parties and reduced to writing by Mr. Elbion. The testimony of Mr. Kauffman was of vast importance to the complainant. Mr. Kauffman testified that he was told by Mr. Klein that the contract had been altered in relation to these terms, not only did he answer counsel for the defense that, but counsel for the complainant repeated the question, and the answer was the same. Mow, if that be true, if Mr. Klein believed that the contract, had been altered, and if he thought that things had changed so that it was altered, then it would not be a defense to this action. There is no testimony in the slightest that there was any consideration in any way for the altering of this contract, and if this contract did embrace the agreement as made between them at the time, and as signen!, it is an enforceable .contract, and must be enforced.

Eight there, it is, however, proper for me to say that were T convinced that Mrs. Klein’s statement of what occurred between Mr. Elbion and herself at the time was true, I would have some question in m3' mind whether the contract was enforceable, but after considering all the facts, I am convinced that Mr. Elbion’s testimony as to what took place has not been overcome, to say the least.

I do not think it is necessary for me to comment upon any phase of the ease except this: I am satisfied that this contract was not rescinded, or the sale became void by reason of the fact that Mr. Klein was arrested 'for moving a building without a permit, and fined a small amount, and then a week perhaps afterwards was granted a pennit to do this very act. T certainly could not say that that was a suit by the state in which he had lost, and came within the meaning of this case.

Under those circumstances I am compelled to advise a decree for the specific performance of this contract.

I say, however, that the complainant, having agreed to pay the sum of $2,000, instead of the mortgage of $2,000, that in equity they should still do that. Anyway, I will advise a decree that the defendants make, execute and deliver a deed free and clear of all encumbrances, upon the payment by the complainants of the sum of $4,000, adjustments to be made. There is no way for me to know at this time whether or not the adjustments will require a larger sum than the $4,000, or whether there will be a deduction therefrom. You may prepare such a decree and submit to Mr. Donnelly, and if he has no objection to form, forward to me. If there is any objection to the form you can give me notice.

Mr. Donnelly — What about the question of costs, your honor ? . •

The Court — I am afraid costs will have to go with the decree, costs will have to follow the decree. I am allowing no counsel fee, but the cost must go with the decree.


text:
    Atlantic Mortgage Company, complainant, v. Isidore Rosenfeld, defendant.
    [Heard and determined July 1st, 1924.
    Filed September 12th, 1924.]
    Service of Process — Sheriff Unable to identify Defendant as Person Served — Service Denied by Defendant.
    On bill to foreclose.

      Messrs. Gassmcin & Gofilieb, for the complainant.
   Ingersoll, V. C.

The only question before the court is the question whether or not service was made. The return of the sheriff, of course, is piima facie, proof that service was made, but, in the face of the denial, both by the defendant and his wife, of such service, raises that issue plainly. The affidavit of the sheriff, When I heard it read, seemed to me to leave the question very much in doubt. He failed at that time to say that the party whom he afterwards met as Mrs. Rosenfeld, and who evidently was Mrs. Rosenfeld, because she makes affidavit of the meeting, was the woman upon whom he served. He substantiates that when put upon the stand. He fails to recognize her as the woman upon whom he made service, and I fully appreciate the difficulty of making service in matters of this sort, but, if it was served upon anyone else but Mrs. Rosenfeld, the return of the service is insufficient, there is no attempt to amend it by being shown that it was served on some other member of the family. That, of course, under the circumstances, could not now be done because the sheriff does not know. In view of the fact that the sheriff is unable now to say upon whom he made this service, whether or not he was correct in assuming or in accepting the statement upon 'whom he served that she was Mrs. Eosenfeld, in the face of the direct denial, I am compelled to grant the order. You may prepare such an order.


author: Leaming, V. C.

text:
    Morton H. Souders, complainant, v. Rose V. Smith, defendant.
    [Submitted September 16th, 1924.
    Determined September 16th, 1924.]
    Specific Performance — Counter-claim for Unliquidated Damages —Remedy to be Found in Law Courts — Counter-claim Dismissed.
    On. bill for specific per formalice. Oil hearing on .motion against counter-claim of defendant.

      Mr. B. Trueman Stackhouse, for the motion.

      Mr. Willis Tullís Porch, opposed.
   Leaming, V. C.

Complainant’s motion against defendant’s counter-claim must prevail.

It is obvious that the counter-claim which is essentially a cross-bill could not have been entertained had it been filed as an independent bill, since it is purely a suit for the recovery of unliquidated damages.

Nor does the circumstance that complainant herein by his bill seeks specific performance of the contract enlarge the jurisdiction of this court to entertain on behalf of defendant a suit for unliquidated damages. Should specific performance be denied, defendant’s remedy for damages is to be found in the law courts. The several eases in which damages have been assessed for defendants will be found to have been cases in which relief has been afforded a complainant on terms, and cases in which consent has been given. A review of several cases of that nature will be found in Stout v. Portland Cement. Co. (Court of Chancery), 74 Atl. Rep. 966.

The counter-claim will be dismissed. Defendant may have ten days to file an amended pleading, should she so elect.


text:
    Benjamin R. Fox, complainant, v. Samuel Lazowick et al., defendants.
    [Heard and determined January 3d, 1923.]
    Deposits — To Joint Account for Specific Purposes — Consideration of Legal Proposition to be Given.
    On bill, &c. On final hearing.

      Messrs. Bourgeois & Coulomb, for the complainant.

      Messrs. Cole & Cole, for the defendants.
   Ingersoll, V. C.

I will look into the legal proposition. My mind at the present time is quite clear that the agreement between these parties was that Mr. Lazowiek was to deposit to the joint account, of these two people the sum of $10,000 which was to be used in payment of the first money that was to be paid on account of this agreement which had been entered into between Fox and Penrose; that that payment was the consideration for which Lazowiek was to receive his interest in the concern. I think that the action of the parties after-wards, the first payment of $10,000 they received, which may be only a coincidence, was exactly the amount that they had paid down, was divided between the two of them, and that there was no conteniion of Mr. LazowiclCs part that the money was his personally until the final settlement. It seems clear to me that this money, the $10,000, was only deposited to the joint account, $5,000 thereof the property of Lazowick and $5,'000 the property of Mr. Pox, subject, however, to the use, it could be only placed to the one use. Now, as to the legal propositions, whether the bill is such that there is other matter besides reformation; 1 will take up later and announce just as speedily as possible.


author: Buchanan, V. C.

text:
    Raymond D. Hill v. Catherine H. Hill.
    [Decided September 17th, 1924.]
    Divorce — Desertion—Masters Report That Reasonable Effort to Secure Return of Wife was Not Made, Sustained.
    On exceptions to report of special master.

      Mr. George A. Celia, for the exceptant.
   Buchanan, V. C.

This is an uneontested action for divorce by husband against wife on the ground of desertion. The special master has reported against the granting of the decree, finding that the obstinacy of the desertion was not proved because the husband had failed to make reasonable effort to have the wife return.

That the husband did not make any such effort clearly appears from his own testimony, and, indeed, is tacitly conceded by his solicitor. It is contended, however, that the facts shown by the proofs were such as to excuse his making such effort. With this contention I cannot agree. It seems to me far from manifest, under the proofs, that honest, reasonable effort on the part of the husband to terminate the separation would have been unavailing.

The husband himself says that she left to make a short visit, and that they parted for that purpose, on good terms with each other; that she returned a day or two later and, in his absence, removed her belongings; said to her step-son, “Pm absolutely through,” went away and never returned. The petitioner says that he believes she left because of a religious infatuation, and it appears that some time shortly prior to the leaving titey had some discussion as to this, but the petitioner does not say (nor does anyone else) that 'there were any threats or declarations of a purpose to leave. There is nothing in the testimony, as I read it, to indicate the existence of such a fixed determination by the wife to separate herself as would in all probability have resisted and made futile any efforts by the husband to effect her return.

Petitioner testifies that she left him several times before, but gives no particulars in regard thereto. It is argued that this proves that he could not have induced her to return, except perhaps temporarily. That is by no means a necessary or probable conclusion. It is equally inferable that he would have been successful in obtaining her return. The lack of circumstances and details concerning the previous leavings deprives the incidents of probative value one way or the other.

The husband’s proofs are insufficient and the exceptions must be overruled.


author: Mountain, J.

text:
    Essex County Circuit Court.
    In the matter of the appeals from the assessments levied by the Village of South Orange for the improvement of Scotland road.
    Taxes and Assessments — Assessment for Benefits — Street Improvements — Powers of Court and of Board Are Statutory— Assessment Cannot be in Excess of Benefit — Legality of Assessment to be Tested by Certiorari — Court Sitting as Jury to Determine Fairness of Assessment.
   Mountain, J.

This matter comes up on forty-eight appeals filed by landowners to assessments for curbing and paving. The lands are situated on Scotland road, in the village of South Orange. Scotland road was repaved with asphalt block on a concrete base, and the old curb was reset and new curb added where necessary. The assessments for this improvement form the basis of the appeals.

Scotland road is a residential street. The homes which border 'it, some of them over two hundred feet from the street, are expensive and handsome. The neighborhood is established. Prior to the improvement in question the crown of the roadway was very high, and the driving space restricted. The surface was uneven, worn and pitted. Much of the curbing had deteriorated and was out of grade and alignment.

The powers of this court and the board of assessments are statutory. When called upon, the latter are directed to levy and assessment as nearly as may be in proportion to the peculiar benefit, advantage or increase in value which the respective lots and parcels of land and real estate receive by reason of the improvement. In no case are they permitted to make any assessment on any parcel of land which exceeds in amount such peculiar benefit, advantage or increase in value. P. L. 1917 p. 380. On an appeal from such an assessment the circuit court is directed to determine whether their action has resulted in a just and fair assessment or award. P. L. 1922 p. 205.

This limitation makes it improper for the court to inquire into the legality of the assessment. For the purposes of- this appeal, it is assumed that the board of trustees and the board of assessments observed the statutory requirements. Their failure to do so may be tested by certiorari. The report of the board of assessments is entitled to great weight and should be accepted as accurate unless controverted by clear and convincing proof to the contrary. Coward v. North Plainfield, 63 N. J. Law 61; Jelliff v. Newark, 48 N. J. Law 101; Hegeman v. Passaic, 51 N. J. Law 109; Kirtland v. Parker, 76 N. J. Law 217; State, Hunt, pros., v. Rahway, 39 N. J. Law 646; State, Pudney, pros., v. Passaic, 37 N. J. Law 65. The Home Rule act has this to say about it:

“All assessments for local improvements shall be presumed to have been regularly assessed and confirmed, and every assessment or proceeding preliminary thereto shall be presumed to have been regularly made or conducted until the contrary be shown.” P. L. 1917 p. 383 § 30. The inquiry in these appeals is whether the presumption has been overcome.

It is urged by the appellants that each lot in pursuance of the statute should have been considered by itself, and that recourse to an area extending one hundred and fifty feet on each side of the street for its entire length, with calculations computed on a square yard basis was improper. Without approving the latter course in this case, the former method is not exclusive. It depends on the nature of the property and the manner in which the board of assessments has exercised its judgment. Benefit is the increment of value to the lands affected by the improvement. While it may be fairly said to be the difference between the market value of the lands before the improvement and the market value of the lands immediately after the improvement, the determination of this differential, if it may be so termed, is a matter of opinion. As Judge Adams said, in the Branford place appeals: “It must be remembered that commissioners, in a ease like this, deal not with exact figures, but with estimates depending upon the exercise of judgment. It is not usual for the commissioners to be real estate experts. They are expected to act on their own opinion as citizens of experience and intelligence with the aid of such information as they are able to gather.”

It is urged that maintenance cost of the road and certain engineering foes are included in tile total cost of construction, and it is contended that it is improper to assess the property owners for the aggregate amount of those sums. The former is manifestly improper, the latter is not. That, however, does not concern the court on this appeal where a proper inquiry does not commence with the total contract and the suggestive ordinance as to tile proportion the property owners shall pay, but is focused directly on what benefits have accrued to the lands contiguous to Scotland road, shown on the assessment maps. The range of the assessments limits-the scope of the appeals. Under the statute the court is sitting as a jury to determine whether the assessments levied upon the lands designated on those maps and against the persons named on the schedules are just and fair. The court is excluding from its consideration all other questions. in other words, this is not a review of what lands were benefited by the improvement, but is a review of the fairness and justness of the assessments placed upon the lands outlined on the assessors’ maps.

The asessor, though they considered the size, depth and adaptability of each lot, decided that land lying outside of paralleled lines drawn about one hundred and fifty feet from Scotland road on each side was not benefited by the improvement, and refrained from assessing it, irrespective of how the lines bisected the tracts. The size and situation of the various tracts indicate that the improvement benefited them in their entireties. If part -of a tract was benefited, so was the whole. Therefore, the assessors imposed an additional burden on the lands within the one hundred and fifty feet area, and the presumption of the accuracy of their reports is overcome. What then should have been a proper assessment for the tracts in the circumscribed area?

The court has had a view of Scotland road since the conclusion of the trial. The neighborhood from Comstock place in a northerly direction to the Orange line is established and similar in nature. Considering the size, shape, uniform depth of one hundred and fifty feet, location and general conditions and similarity of the lots, there is no objection to assessing them on a front-foot basis. That basis which the court finds in proportion to the peculiar benefit, advantage and increase in value which the respective lots have received, is placed at $3.50 a front foot for the paving, except fox-lots 48-51, 52-53, 54-63, beloxxging to Maude M.. Leach. The paring and. curbing assessments oix these lots are approved. The paving assessment on- the propert}^ of Max E. Butler, lots 209-211, is fixed at $3 a froixt foot. All curb assess-, ments are approved.


author: Fielder, V. C.

text:
    Henry C. Gorrell, complainant, v. Adelaide Z. Gorrell, defendant.
    [Decided September 23d, 1924.]
    Husband and Wife — Possession of Property — Evidence to Support Wife’s Contention.
    J/a.s.sTs. Levita» & Levitan, for the complainant.
    Jfessrs. King & Vogt, for the defendant.
   Fielder, V. C.

At the conclusion of the hearing, I stated to counsel that it was my opinion that the complainant had failed to make out a case which entitled him to the relief he sought touching the real property involved in this controversy and that as to such real property I would deny the prayer of his hill. .1 also stated that I hoped counsel would be able to reach an agreement concerning the ownership of the personal property in dispute. I further stated that in case complainant should appeal from the decree to be entered, I would file reasons for my conclusions. T am now informed that an appeal has been taken, lienee, 1 file the following reasons:

Title to both the Cedar Lake and the Millburn land was taken in the name of the wife, at a time when the relations between the parties were fairly amicable, with the knowledge and consent of the husband. The testimony offered in Ms behalf fails to convince me that any of his money went into the purchase of either tract, or into the building improvements afterward made thereon. He does not claim that he gave any money to his wife specifically to use for the land purchases or for the construction of the buildings. His claim is that he gave her all his earnings, out of which she paid rent, the cost of clothing both of them, household and all general family expenses and that she was able to save therefrom a balance which represents all the money paid for these tracts and for the buildings thereon During all their married life, his weekly income at no time exceeded $40 and for that period it averaged $30 per -week,' except that from Am gust, 1915, to December, 1916, he claims- he received $7,000 or $8,000 by gift from persons to whom he gave a stock market tip, all of which extra'money he gave to his wife. The Cedar Lake property was purchased and the buildings thereon were erected prior to 1915, so that if such lands and buildings were paid for out of money he earned, it must have been money saved therefrom by her. It is impossible to believe that out of his weekly earnings, the sum required for this investment could have been saved after meeting their living expenses, or that the sum required for the purchase and improvement of the Millburn property in 1915 could have been so saved. He claims that the Millburn lots were purchased with her savings from his weekly earnings, but that the house was built with the extra money he was receiving about that time. She denies receiving $7,000 or $8,000 from him, but admits that she did receive about $2,300 extra money- He sa3rs that the house cost about $6,000 to erect and she puts the cost at about $5,000, so that, unless I accept his statement that he gave her at or about this time, $7,000 or $8,000 (of which there is no proof except his own testimony), the difference between the building cost and $2,300 must have come from some other source and, as I have said, I do not think it could have come from her savings from his weekly earnings. It is admitted that at the time of their marriage, the wife had money of lier own which she kept in her own bank account; that she speculated in stocks, at times with considerable profit, during the whole of their married life; that he gave her the same stock market tip from which he made his extra money, at the time the house was building, which tip she used to her financial advantage and that she always kept roomers and was allowed to retain the money she received from that source. She then, concededly, had money of her own and she testified it was this money of her own which went into the purchase and improvement of these two properties and that for such purpose, she not only did not use any money saved from her husband’s earnings, hut that there wore no such savings and neither did she use the $3,300 extra money, which she admits her husband gave her, in connection with the Millburn property. As to this $3,300, she seems to claim that most of -it was-paid to her after the building was completed and paid for by her and that her husband owed her $6,000. because she lost that sum on a bad stock market tip he gave her, and that in performance of a promise to make such loss good to her, he gave her the $3,300. The situation,' then, is that her story is as credible as his and the burden of proof being on the husband, as complainant, to establish his claim. 1 find that he has not sustained such burden.

Even had the husband made it appear to my satisfaction that either or both properties were bought with money he gave his wife from time to time, he could not succeed in this suit. The money was- given her without reservation or condition. After lie knew that title to the Cedar Lake property had been taken in her name, he continued to give her his earnings. He admits that he was aware that she kept depositing- the money he gave her in her bank account with other money admittedly her own; that she liad sole control over her bank account and drew on it for her stock speculations; that title to both properties was taken in her name with his knowledge and consent and that the Millburn title was taken in her name to secure it against his possible c-reditors. Under these circumstances the presumption is that the money he turned over to her was by way of gift to her and to establish a resulting trust in his favor in the money, or in any real and personal property purchased therewith in her name, his proof to rebut such presumption must be certain, definite and reliable and leave no reasonable doubt in my mind that he did not intend to make a gift to her and in this he has failed.

I do not deem it necessary to state the reasons which led me to make the disposition of the personal property involved in the manner indicated in the decree. Counsel agreed as to some of the items. Besides the testimony found in the main ease, further testimony was taken as to the ownership of various household articles, and as to my disposition of such articles, I am informed no appeal has been taken and that the testimony with respect thereto will not be printed.


author: Per Curiam.

text:
    THOMAS B. BOOTH, PLAINTIFF-RESPONDENT, v. J. OVERTON PAINE, DEFENDANT-APPELLANT.
    Submitted May term, 1924
    Decided September 24, 1924.
    Real Estate — Agent’s Commission — Negotiation of Lease — Alleged Substitution of Another Contract of Lease — Plaintiff’s Right to Stated on His Contract for Commissions.
    Oil appeal from tlie District Court oí Morris county.
    Before Justices Tebnchard, Mintttrn and Lloyd.
    For tlie plaintiff-respondent, Nicho!,as Le Yecchia.

    For the defendant-appellant, King é Vogt.

   Per Curiam.

This is an appeal from the District Conrt of Morris county, where plaintiff obtained a judgment rendered upon the verdict of a jury.

The plaintiff was a real estate agent, and defendant was the lessee of a certain property. The defendant desired to sublet the property, and requested the plaintiff to find a tenant for the property. Plaintiff secured one Northgrave for a tenant, and in consideration of his services Paine signed the following contract:

“Newark, N. J., February 1, 1919.
“The undersigned agrees to pay Thomas B. Booth five per cent, commission on lease of property, 50 Front street, Newark, fox term October 23, 1919, to April 30, 1926, to Harry B. Northgrave, yearly rental $5,400. Thomas B. Booth leased the above property to Harry B. Northgrave this day, and this commission is to lie paid annually in advance.
“(Signed) J. Overton Paine.”

The commission was paid up to October 23d, 1922, but the commission that was due one year thereafter was not paid; and this suit was brought to recover the same.

The question first presented is, Was there error in the court’s refusal to direct a verdict? We think there was not. The motion seemed to be rested upon the fact that there was admitted in evidence over plaintiffs objection what purports to be a contract for a leasing of the premises between Booth and Northgrave for a term of one year only. We think, however, that the judge was correct in declaring as he did in his charge, that the right of plaintiff to his commission was not affected by a different contract made without plaintiff’s consent. Plaintiff had a legal right to stand upon his contract with defendant, and that being so, the direction was properly refused, and the exceptions to the charge are without merit.

The judgment will be affirmed.


text:
    THE STATE. DEFENDANT IN ERROR, v. PETER CUCIONELLI, PLAINTIFF IN ERROR.
    Submitted May term, 1924
    Decided September 24, 1924.
    Crimes — Theft of Automobile — Alleged that Conviction was Against Weight of Evidence — Conviction Affirmed.
    On error to the Essex Sessions.
    Before Justices Trenchabd, Minturn and Lloyd.
    Eor the plaintiff in error, Thomas B. Armstrong.

    Eor the state, John O. Bigelow:

   Per Curiam.

The defendant was convicted in the Essex Quarter Sessions of stealing a Ford sedan automobile from Dr. Zuber, April 7th, 1923, and of unlawfully having in his possession this automobile upon which the serial number had been defaced.

The only reason urged for reversal is that the verdict is against the weight of the evidence.

In the latter part of April the defendant drove what is said to be Dr. Z liber’s stolen car into a garage. He was arrested and searched, and a bill of sale was found for a Ford sedan, also a registration card. The true number of the card had been filed off and a new number, that contained in the bill of sale, had been substituted. The defendant insisted that he obtained the car by purchase the day of his arrest from a man who said his name was Sullivan, and to whom he gave $350 in cash, for which he received the bill of sale and registration card. It must suffice to say that we do not credit his story. Defendant had a long criminal record, seven convictions having been proved against him. He contended that Sullivan lived in a brick house on Ninth street, between Cole street and Jersey avenue, in Jersey City. In rebuttal, the state called a witness who said that no such person lived there. There was other evidence in support of the contention of the state sufficiently cogent and convincing to enable us to conclude that the verdict was not against the weight of the evidence.

The judgment of conviction will therefore be affirmed.


text:
    WILLIAM R. VELTHAUS, PLAINTIFF-APPELLANT, v. ARNOLD D’AMBROSA, DEFENDANT-RESPONDENT.
    Argued May term. 1924
    Decided September 24, 1924.
    Promissory Notes — Question Reason for Their Making and Their Payment in Dispute — Evidence Clearly Shows That Any Consideration Has Been Repaid.
    On appeal from the Plainfield District Court.
    Before Justices Trenchard, Minturn and Lloyd.
    Eor the plaintiff-appellant, Earl A. Merrill.

    For the defendant-respondent, Orlando II. Dey.

   Per Curiam.

This is plaintiff’s appeal from a judgment of the Plainfield District Court, entered in favor of the defendant by the trial judge sitting without a juiy.

The suit was brought by the plaintiff, to recover from the defendant on a promissory note made by defendant to the plaintiff, for $550, the $50 excess over the jurisdiction of the District Court being waived. The defense was that the note had been paid by the delivery of labor and material to the plaintiff.

It appeared that plaintiff oivned a lot on Avhich he desired to construct a dwelling. The defendant entered into an oral agreement with plaintiff to erect' the building for $19,000, to he paid in installments. Plaintiff paid defendantthe first two installments, amounting to $5,000, and when the third payment was due, and before it was made, a new agreement was made pursuant to which plaintiff did not make any further installments of payment to defendant, but assumed the responsibility for payment of all hills for labor and materials, from time to time as they became due.

According to the new agreement, plaintiff’s first payment was in the sum of $400 to meet the payroll then due. Payment was made by check from plaintiff to defendant, and at the time this check was given plaintiff took back from defendant a promissory note in the amount of the check. The second payment was $550, likewise made by check from plaintiff to defendant, and on that date, according to the testimony, plaintiff also took from defendant a promissory note in the sum of $550. It was this promissory note which presents the basis for this action, and it appeared also that there were fourteen of such promissory notes taken, ten of which are now in suit, hut only this particular note being involved in the present suit.

The plaintiff’s theory was that the notes represented a loan of money made by plaintiff to defendant which had never been repaid. The defense was that no loans had in fact been made by plaintiff to defendant; that the notes had been asked for and given as receipts for evidence of the fact that the .plaintiff had actually paid money in the amounts of the several notes for labor on the construction work, and that plaintiff having thus complied with his obligation to make such payments there was no money due from defendant to plaintiff on these notes; and that the indebtedness which the notes appeared to represent, had been paid and satisfied by the defendant, by the furnishing of labor and materials for the plaintiff’s building. The case was thus essentially one of fact and involved no legal questions. It seems to us that the defense was abundantly made out, and that the judgment should not be disturbed.

The judgment will be affirmed.


author: Píer Curiam.

text:
    THERESA BUSH v. NEW AMSTERDAM CASUALTY CO.
    Argued May term. 1924
    Decided September 24, 1924.
    Insurance — Accident—Evidence That Death Was Result of Accident — Allegation of False Representation in Application Not Sustained.
    On rule to show cause, Essex Circuit Court.
    Before Justices Trenchakd, Minturn and Lloyd.
    Eor the rule, Edwards & Sniitli.

      Contra, Stein, Stein & Hannoch.

   Píer Curiam.

This is defendant’s rule to show cause why a new trial should not be granted. The plaintiff is the beneficiary mentioned in a health and accident polio}'' issued by the defendant company to Sherman Bush, her husband, deceased. The verdict was for $8,298, but the amount of recovery is not disputed, the insistence being that plaintiff is entitled to the amount of the judgment, or to nothing. Two contentions were urged by the defendant at the trial: (1) that the death of the insured did not occur as the result of the accident, and (2) that the policy was issued as a result of a false representation, and that therefore the defendant is not liable upon it. We observe no merit in either of these points.

The facts in evidence were that Mr. Bush started to go down the front steps of a home which he had been visiting, and slipped and fell, from which accident it was manifest that he was hurt. He was taken in an automobile to his home, and put to bed, which he never left until he died. It appeared that he had broken his leg, and he complained of pain in his hack and abdomen. His death, according to tlie physician, was caused by heart failure due to abdominal pressure. Prior to the accident his general health had been good.

The court instructed the jury: “If you find that Mr. Bush’s death was partly due to the fracture of his leg and partly to some other illness, then there can he no recovery, because the accident was not the sole cause of his death.” This charge was' extremely favorable to the defendant. Indeed, it places a greater burden upon the plaintiff than the requirements of law. Since there was ample evidence to support the finding of tlie jury. Tie think tlie verdict should not be disturbed upon that ground.

With respect to the contention that the policy was issued as the result of a false application, we think there is no merit in the contention. The policy alleges that the application attached is a copy of the application, and the fact appears to he that the application was not signed by anybody. It is undisputed that since Mr. Bush’s boyhood he liad suffered from a physical infirmity, his left leg being somewhat shorter than the other, and that he used a crutch to assist him in walking. This physical disability was entirely visible to the defendant’s agents. The application which was not signed says: “J am in sound condition mentally and physically, except as follows: No exceptions.”

The evidence discloses that Mr. Bush had never applied for this insurance, and had never requested the issuance of the policy. It was issued by Lippmann, the general agent of the defendant in Newark, who knew Bush for thirty-five years, and twenty-five years ago he had issued a policy to him in another company, and when that company retired from business, he had rewritten the policy in another company, and when that company retired from business he had issued that policy in still another company.

It further appears that the paper purposing to he an application for insurance was prepared in Mr. Lippman’s office by a typist and was copied from a previous application, and that in the original policy it appeared that Mr. Bnsh walked with a crutch, and that the omission to state that fact in the present application was due to typographical error in the agent’s office.

We think'the evidence.also shows that Mr. Bush had never seen the policy in question, but that it was kept in a safe deposit box, the control of which was in his secretary. The company having failed to obtain a signed application must be held to have waived the requirement for the application in this respect. Carson v. Insurance Co., 43 N. J. Law 300. Therefore, since the application was never signed by Mr. Bush or by anyone in his behalf, and its execution was never ratified by him, it is not binding upon him. Aside from this and assuming the application to have been complete, it has been declared by the Court of Appeals of Maryland that a defective leg will not operate per se a breach of warranty of physical soundness. Maryland Cas. Co. v. Gehrmann, 96 Md. 634; 54 Atl. Rep. 678.

The result is that the rule must be discharged.


text:
    CHARLES H. INGERSOLL, RELATOR, v. VILLAGE OF SOUTH ORANGE AND IRA T. REDFERN, BUILDING INSPECTOR OF SOUTH ORANGE, DEFENDANTS.
    Submitted May term, 1924
    Decided September 24, 1924.
    Ordinances — Zoning—Case Generally Follows Nutley Case Except That It Appears That the Alleged Lack of Fire Protection Introduced New Conditions.
    On rule to show cause why mandamus should not issue.
    Before Justices Trench ab.d, Minturn and Lloyd.
    For the relator, Ilowe & Davis.

    For the defendants, Biker & Biker.

   Per Curiam.

This is an application for a mandamus. The Chief J ustice awarded a rule to show cause why a peremptory or alternative writ of mandamus should not issue against the building inspector, requiring him to give to relator, Ingersoll, a permit for the erection of a three-story apartment house for the accommodation of seventeen families.

It is stipulated that the building inspector refused to issue the permit because the city ordinance zoned the property in question against apartment-houses.

In our judgment the case falls within the principle of the Nittley case, and also within the principle declared in Handy v. South Orange, 118 Atl. Rep. 838, and Vernon v. Westfield, 1 N. J. Adv. Rep. 1031, and in cases numbers 10 and 12 against the city of East Orange, decided this term. Upon the reasoning underlying those cases we think the ordinance was outside of the powers conferred by the zoning act, under the principle of the Nutley case, as decided in the Supreme Court, the act in question, in so far as it undertakes to limit the use of the land as to this, is unconstitutional. Ordinarily, this conclusion would justify the allowance of a peremptory writ, and so conclude the case. The ease, however, contains the following stipulation:

“It is admitted that the authorities would testify that the village lias not sufficient fire facilities to adequately take care of apartment-houses in the event of fire. It is further admitted, however, that here are at ihe present time three apartment-houses existing in the said village, which were constructed before the so-called Zoning law was passed by the state legislature.”

The introduction of this provision, presenting a situation of public necessity upon which it is argued the inherent police power of the municipality for the general welfare may be invoked, as a super-added power to the legislative zoning concession, injects into the case a new municipal feature, which up to this period has not received the consideration of the appellate court. For that reason we have concluded to allow ail alternative writ of mandamus. Eor that purpose the pleadings may be so framed as to present the inquiry-raised by this stipulation, upon appeal.

Such will be the rule.


text:
    ERNEST M. HANDY, RELATOR, v. CITY OF EAST ORANGE AND JOHN O. SCOTT, BUILDING INSPECTOR, DEFENDANTS.
    Argued May term, 1924
    Decided September 24, 1924.
    Ordinances — Zoning—Writ Allowed Following Nutley Case.
    On rule awarding an alternative writ of mandamus.

    Before Justices Trenci-iard, Minturn and Lloyd.
    Eor the relator, Howe & Davis.

    Eor the defendants, Walter C. Ellis.

   Per Curiam.

The case came before us upon an agreed state of facts. An alternative writ of mandamus was allowed and the city made a return thereto. The facts in substantial particulars are not unlike these presented in case number 70 of this term, State, ex rel. The Jersey Land Co. v. John Scott, Building Inspector of East Orange, in which we allowed a peremptory mandamus. We are of the opinion that for the reasons advanced in that case, based upon the recent determination of the Court of Errors and Appeals, in State v. Risley, 2 N. J. Adv. Rep. 852, as well as upon the conclusions reached in Handy v. South Orange, 118 Atl. Rep. 838; Vernon v. Westfield, 1 N. J. Adv. Rep. 1031, and Ignaciunas v. Nutley, 2 Id. 852, that a peremptory writ of mandamus go in this case.

Such will be the rule.


author: Parker, J.

text:
    B. JOSEPH FOLEY ET AL., PROSECUTORS, v. MAYOR AND COUNCIL OF THE BOROUGH OF BOGOTA, RESPONDENT.
    Decided September 25, 1924.
    Municipalities — Improvements—Ordinances Passed — No Protest —Allegation That Improvement Not Necessary and Extravagant — Writ Dismissed.
    On certiorari.

    Submitted on briefs by stipulation to Mr. Justice Parker sitting for the court.
    Por the .prosecutors, DeTnrck & West.

    Por the respondent, Frank IF. Hastings, Jr.

   Parker, J.

The writ seems to have been allowed by Mr. Justice Swayze in October, 1923, but I had heard nothing of the ease until September 8th, 1921, when I found the papers had been left at my bouse.

The principal attack seems to he upon the good faith of the borough council in rescinding an ordinance for a load improvement after the filing of protests under the Home Rule act had put the whole matter, in tram for a referendum election, and in re-enacting a similar ordinance later, as to which no protest seems to have been made.

dire first step was on August 22d, 1922, when a petition was filed for the improvement. The ordinance passed first reading September 12th; a protest of owners along the line of the improvement was made and adjudged insufficient. On October 3d the ordinance was finally passed. The mayor vetoed it and council passed it over liis veto October 10th. A further protest, under the general ten per cent, clause (Act 37, § 24, Pamph. L. 1917, p. 461), was filed and considered sufficient to defeat the scheme unless it should be supported by a referendum election. The council thereupon repealed the ordinance and no election was held. This action was on May 22, 1893. At the same meeting a petition for a very similar improvement was presented. The only material difference between the first scheme and the second seems to he that in the second, the proposed improved roadway is to be three feet narrower than in the first. The expense is consequently somewhat reduced, hut the general character of the improvement remains the same, and the substantial complaint is that it is an unnecessary piece of extravagance on the part of the council.

The question of power to pass this new ordinance seems to have been referred to the borough attorney, and after his favorable report, the new ordinance was introduced on August 14th, 1923, about three months after the petition was presented. The number of petitioners seems to have con-considerably increased.

I find no technical objection to the procedure that seems worthy of consideration. I know of no valid objection to the repealer of an ordinance pending a referendum thereupon. It may in certain cases be evidential of bad faith (and this is claimed here) but it is not per se illegal, No irregularity in the repealer is alleged. The substantial claim is that the council has succeeded in putting the second ordinance through by trickery. But prosecutors had plenty of time to block the whole thing, by getting a protest of abutting owners or under paragraph 24. The second ordinance was not finally passed till September 25th, 1923. The only basis of setting aside this ordinance is fraud, and the prosecutors are very far from having proved that to my satisfaction.

The writ is dismissed, with costs.


author: Dungan, J.

text:
    Essex County Circuit Court.
    Frank Pinto, plaintiff, v. Foo Jang Realty Company, a corporation, Thomas F. Conroy and W. Alfred Peter, defendants.
    Real Estate — Excavations on Adjoining Property — Respective Rights of Parties — Rights and Duties of Contractor and Architect in Charge of Excavation.
    On motion to strike out complaint as against Conroy and Peter.

      Mr. William J. Kearns, for the defendant T. F. Conroy.

      Messrs. Wolber & Gilhooly, for the defendant W. A. Peter.

      Mr. Jacob L. Xewmarn, for the plaintiff, Frank Pinto.
   Dungan, J.

Plaintiff owns land on which there is a building on Mulberry street, in Newark. The defendant Poo Jang Realty Company owns property adjoining on the north, which was excavated to a depth of more than eight feet along the property of the plaintiff. The defendant Conroy was the contractor of the realty company and Peter was the architect. Suit is brought by the plaintiff to recover damages for injury to his building.

Land, in its natural condition, has a right to lateral support. McGuire v. Grant, 25 N. J. Law 356. But where buildings are erected upon land, and excavation done on adjacent property in an ordinarily careful manner, there is no (hit}’ under the common law upon the person lawfully making excavation to shore up and protect buildings on adjacent lands. Schultz v. Byers, 53 N. J. Law 442.

The Poo Jang Realty Company had a right, therefore, independently of the statute, to excavate along the lands of the plaintiff and to contract with others to do the work and to superintend it, in which event the person doing the work and the superintendent would be under no greater obligation to the adjoining owner at common law than the owner.

The third paragraph of the second count alleges that the negligence of Conroy and Peter consisted in their''omission to properly shore or prop, or otherwise secure or take other or reasonable precaution to support the plaintiff’s said house, to prevent and avoid any damage to the plaintiff’s said land and building. This is not an allegation of an undertaking to do something' and then doing it amiss, but it is an allegation of an omission to do something which these defendants were not obliged to do unless by virtue of the statute, and if the statute does not apply to the contractor and to the architect or supervisor, then the complaint must be dismissed as to them.

The statute (3 Comp. Stat. p. 3926 § 1) applies only to “the person causing such excavation to be made.” Under a similar statute in New York, the courts of that state have held that the contractor lawfully making the excavation is not comprehended within the terms “the person or persons causing such excavation,” and the attention of -the court is called to no decision in this state holding to the contrary.

My -view, therefore, is that the complaint does not set forth a good cause of action either against Conroy, the contractor, or Peter, the architect, either under the statute or the common law, and that the complaint as to them must be stricken out.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    John Chupik, petitioner, vs. Fisher & Norris, respondents.
    [Decided September 12th, 1924.]
    On petition for compensation, determination of facts and rule for judgment.
    Claim Petition No. 2988.
    Employe’s act of assistance to his superior employe in the operation of superior’s car does not amount to wilful removal of himself from his employment.
   I do find and determine from the evidence as follows:

First. That John Chupik, the petitioner, was on June 26th, 1923, in the employ of Fisher & Norris, the respondent, as a laborer and molder’s helper, which employment was subject to the compensation section of chapter 95, laws of 1911.

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

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

Fourth. That the accident occurred as follows:

The petitioner was engaged in such work as was assigned him about ten feet from the gateway giving entrance to the yard of the plant. Mr. Ross Carter, a molder, from whom the petitioner was accustomed to taking orders, was leaving the yard about three-thirty p. m., backing his ear toward the gate, and he asked the petitioner to see if the way was clear. The petitioner traversed the intervening ten feet to the gateway and signaled for the car to come out. At. this time in some unexplained way the petitioner was struck by the auto and experienced a broken leg. The testimony seems to establish that it was expected of any employe working near the gate to open it when anything was to enter or leave the yard. The petitioner states he had been told to do this and it is admitted he was never told not to do so. At such times it is the natural sequence to signal the driver if the way is clear. To me it seems irrelevant as to whether or not the gate was open. The pertinent fact in this situation is, that a molder’s helper, who was accustomed to taking orders from the molder both in the plant and at times in the yard, and who in past had been told to obejr such orders, was directed by the molder to perform a perfectly reasonable service. I am unable to arrive at the conclusion that the exercise of the obedience which was customary, causing the petitioner to move a matter of some fifteen feet from the point where he was engaged, constituted a wilful removing of himself from his employment, which consisted chiefly in doing that which the molders told him to do. To hold thus would assuredly do violence to the oft-repeated mandate of the upper courts, that the Compensation law is a remedial measure and should be construed liberally. A liberal view of this situation will certainly lead to no such conclusion.

Fifth. That as a result of said accident the petitioner suf-' fered a temporary disability lasting from June 26th, 1923, to October 2d, 1923.

Sixth. That the petitioner is entitled to the medical expenses following the accident, amount to $166, of which the respondent furnished nothing.

Seventh. That the wages of the petitioner were $21 per week.

Eighth. That the petitioner is entitled to compensation from the respondent, for temporary disability, from July 6tli, 1923, ten days after the accident, to October 1st, 1923, inclusive, at the rate of $12 per week.

It is therefore ordered that judgment final be entered' in favor of the petitioner and that the respondent pay or cause to be paid to the petitioner the sum of $150.84 as compensation for temporary disability covering twelve weeks and four days in excess of the waiting period, together with $166 to cover medical expenses incurred. Also a counsel fee of $75 to he paid to the petitioner’s attorney as counsel fee.

W. E. Stobbs,

Deputy Commissioner of Compensation.


author: Backes, V. C.

text:
    Martin J. Cassidy et al., complainants, v. Harry Kruvant et al., defendants.
    [Decided September 25th, 1924.]
    Conveyances — Restrictions — Community Scheme — Changing Neighborhood Conditions — Defendant Had Ample Warning of Consequences of Violation of Covenant.
    On final hearing.

      Mr. Theodore. G. Ilindenlang, for the complainants.

      Mr. Harry Davim-os and Mr. Millón M. linger, for the defendants.
   Backes, V. C.

The community scheme .adopted many years ago by the land company, and incorporated in all the conveyances, that none but residences should be built on the lands in its subdivision, has been vigorously adhered to by the many purchasers who' have erected homes. The defendant Kruvant was the first invader of the uniform covenant. Some time ago ho built four stores facing South Orange avenue at the corner of Isabella avenue. The “neighborhood” did not strenuously object, presumably because they realized that business was pushing out along South Orange avenue from Newark (South Orange avenue is a main artery between Newark and the Oranges), and that the coming of stores on the plot on that street was inevitable. Stores are strewn on either side and opposite the tract on South Orange avenue. Kruvant justifies his intrusion upon the covenant on the ground that the neighborhood has changed., Having sueceodecL in this inroad lie ventured further and put' up a building on the rear and remaining portion of his lot, facing it on Isabella avenue, which is intended to be used as a public garage. Whatever merit there may be in his claim of neighborhood change on South Orange avenue, it cannot avail him as to exclusively residential Isabella avenue.

The defendant will not be permitted to carry on business on Isabella avenue. He may, however, use the building in connection with the stores facing on South Orange avenue.

The defendant had ample warning and built at his peril. His plea that tlie complainants failed to take court action until his building was well advanced has little to recommend it. They complained vigorously to the building authorities against issuing a permit for the store building and to him against his project. The covenant relates to the use of the building, not to the character of the structure, and the warning was sufficient and the suit was timely. A bill to restrain the erection of the rear store building could not have been maintained.

Injunction accordingly.


text:
    Robert P. Tolen, complainant, v. Samuel T. Tolen et al., defendants.
    [Decided September 30th, 1924.]
    Partition — Defendant in Sole but Not Exclusion Possession— No Claim Made by Co-tenant for Joint Occupation — Tenant in Common Not Obliged to Account for His Occupation.
    On exception to- master’s report.

      Mr. George W. Anderson, for the exceptant.

      Mr. A. Harry Moore, for the respondents.
   Backes, V. C.

The property ordered to be sold in partition consists of a six-room house on a lot twenty-five bjf one hundred. Tt belonged to the mother of- the complainant and four defendants, and was occupied by their parents. The defendant Sadie Winans and her husband lived with her parents until they died, and then, as she says, she “just stayed on.” The master correctly reported that she was not chargeable for the .use and occupation, to which exception has been taken.

Mrs. Winans was in sole, but not exclusive, possession. She had the legal right as co-tenant to occupy the house. Co-tenants have a several and equal right of possession, and the possession of Mrs. Winans is presumed to- be in accordance with her title. This presumption is not disturbed by the established circumstances. Her co-tenants were not excluded; they made no claim for joint occupation, and she asserted no right to exclusive possession. They had the right to occupy the premises with her. If they chose not to do so they cannot now complain of her sole occupation. The law is Veil settled in this state that in a situation such as is here presented a tenant in common is not obliged to account for his occupation. Izard v. Bodine, 11 N. J. Eq. 403; Barrell v. Barrell, 25 N. J. Eq. 173; Edsall v. Merrill, 37 N. J. Eq. 114; Sailer v. Sailer, 41 N. J. Eq. 398; Lloyd v. Turner, 70 N. J. Eq. 425. Eor an analysis of the authorities on the subjects, see the footnotes to Gage v. Gage, 28 L. R. A. 829; Thurstin v. Brown, 29 L. R. A. (N. S.) 224.. See. also, "Co-tenancy,” 1 R. C. L. 826.

Exception overruled.


author: Foster, V. C.

text:
    Samuel H. Smith, complainant, v. Recker Luggage Corporation, a corporation of New Jersey, defendant.
    [Decided September 26th, 1924.]
    Accounting — Royalties Due Complainant — Allowance Made— Certified, Public Accountant.

      Messrs. 0 si orne, Cornish & S check, for the complainant.

      Mr. Theodore G. Hindenlang, for the defendant.
   Foster, V. C.

Application is made on behalf of the defendant to open the final decree in this cause on the ground of mistake, the alleged mistake being the fact that the master is claimed to have erroneously reported the amount of royalties due complainant from the defendant, and the further mistake is alleged that the solicitor for the defendant assumed that inasmuch as the allowance to the certified accountant would have to be fixed by the chancellor, that he would receive notice of any application that might be made for that purpose, and when he did that he would then have an opportunity to file exceptions to the master’s report. He received no notice of the application to fix the allowance to the certified accountant, and upon the chancellor making such allowance the sum was embodied in the decree and the decree was duly entered. The solicitor for the defendants claims that this deprived him of an opportunity to take exceptions to the master’s report, and also deprived him of an opportunity to object to the amount of the allowance made to the certified accountant, and he, therefore, filed a petition to open the final decree.

When this matter came before me on September 24th I informed counsel that the application to open the decree on the ground of his objection to the amount of the allowance made to the certified accountant would have to be addressed to the chancellor personally, and 1 also at that time requested counsel to submit to me the evidence from the record which sustained his contention that the master had made a mistake in the amount of royalties allowed.

And I further stated that if I found the evidence to sustain his contention I might then conclude to advise the opening of the decree.

1 have considered the evidence to which counsel for both parties referred, and I do not find the evidence to sustain defendant’s contention, and, therefore, find nothing to justify the opening of the decree, and the motion to open the same will be denied.

Application was made at the same time by complainant, on petition, for an order to issue execution in these proceedings to obtain the payment of the amount of the decree in favor of the complainant, and I have this day filed complainant’s petition and advised the order requested.


text:
    Anna E. Van Osten, complainant, v. John S. Van Osten, defendant.
    [Heard and determined September 8th, 1924.
    Opinion filed October 1st, 1924.]
    Divorce — Support of Wife Before Decree — Proper Amount Under All Circumstances.
    On petition for divorce. On hearing at return of order to show cause for alimony pendente Hie.

      Mr. Grover G. Rickman, for the complainant.

      Mr. Walter 8. Keotvn, for the defendant.
   Leaming, V. C.

(orally).

The situation that we here encounter is one that we are meeting all the time. Until there is a divorce, complainant is Mr. Van Osten’s wife and he is Mrs. Van Osten’s husband, and on him, as the husband, falls the common law duty of support. It is, accordingly, at this time, simply a question of how much, under all the circumstances, he ought to pay. That duty of support he owes not only to her, but he owes it to the community and he owes it to society, unless and until, as the court of errors and appeals says, he is relieved of the obligation by divorce.

I have refreshed my memory touching the divorce case by reading the stenographic notes of the conclusions which I reached at that time, and my memory has been sufficiently refreshed to enable me to remember with a, good deal of distinctness almost all the testimony that was introduced at that trial, and I recall very well the conviction that I then had that neither of these unfortunate people was willing to live with the other. Both tried to maintain an attitude of anxiet}r for the other’s return; the husband, especially, made some efforts of that nature, which efforts I'became satisfied were clearly half-hearted and largely in the nature of a bluff. In other words, he tried to invite his wife to come back to him'without any wish to succeed, and, in fact, with a hope that he would not succeed, and the nature of his overtures were well calculated to induce his wife not to return; and on her part I thought there was a similar determination not to live with her husband unless she was compelled to do so, and under those circumstances there seemed nothing to do but to dismiss both the petition and the cross-petition, and in that view I still think I was right. The result is 'that she is still his wife, and unless he makes some real effort to get her back — brings about a situation that really would impel a woman to go back with the belief that in going hack she would be accorded the privileges of a wife — unless he does something more than use empty words in apprising her of the fact that he is willing to receive her back, and actually does something that is calculated to induce her to' return, with the understanding that she is to be accorded the privileges of a wife — unless, I say, he does something of that kind, the obligation is on him to supply support for her in a reasonable amount. So, 1 will say again, the only question is, what is a reasonable amount, and that I am finding a good deal of difficulty in determining in my own mind.

Perhaps I should not say what has often come to my mind, hut I somewhat doubt whether at this day the obligation of the husband to seek his wife’s return should be said to be greater than the obligation of a wife to bring about a reunion; I have often wondered whether that doctrine, if first brought under consideration, would he thought sound, but it is the law as it is defined to-day, and I suppose it must be accepted as the law until our court of errors and appeals determines otherwise; bnt I have long entertained the view in these matters of preliminary allowances in favor of a wife that while the amount should be adequate, so far as the husband’s ability to pay will permit, it should not be made so large as to encounter the danger of an unnecessary amount or to encourage preliminary applications where they are unnecessary. It may be that on final hearing we will be able to ascertain with definiteness that the defendant’s income is more than he has disclosed at this time, or that his necessary expenses are less than he now claims, but until then I think I have got to accept his testimony, as set forth in his affidavit, touching his income and his expenses. If that be accurate he has hut about $10 a week above liis expenses, without including in his expenses his own clothing and the clothing of his child. If that be true, an order for $5 a week is quite all that should be made at this time as a preliminary order. Even that may be crowding bis net income pretty close, for he is giving his wife more than half, if the truth is as set forth in the affidavit.

I will fix the order for $5 a week. It is not a matter of very much importance, I suppose, because it will be only a short time before final hearing can be had, when we can probably ascertain more satisfactorily what is right.


text:
    Ernest A. Grief, petitioner, v. Emma A. Grief, defendant.
    [Heard and determined September 15th, 1924.
    Filed October 1st, 1924.]
    Divorce, — Extreme Cruelty — Statute Means More Than Here Shown — Testimony Lacking Corroboration.
    On petition for divorce. On final-hearing.

      Mr. Walter S. Keown and Mr. George A. Roihemal, for the petitioner.

      Mr. Albert 8. Woodruff, for the defendant.
   Leaming, V. C.

(orally).

I think it is perfectly clear that a decree of divorce cannot be sustained in this case. The statutory extreme cruelty which the statute now provides as 'a ground for absolute divorce means something more than has been shown in this case against the wife, and, besides, there is no corroboration of much of the claim made by the petitioner. Even the shooting affair, the details of which also lack corroboration, cannot be classed as extreme cruelty within the statute; it occurred at the moment of a quarrel and personal'encounter between the parties, and was a single act of frenzy of the moment. I am convinced that the petition necessarily fails.

The cross-hill for maintenance must he sustained almost from necessity if the petition fails, because the defendant in the original suit is the wife of the petitioner, io which he owes the common law duty of support; he owes that duty to her and to society. Further than that, I-think the corroborated evidence on behalf of the defendant justifies a decree. I think the evidence is such as to show that the conduct of the petitioner has made it impossible for the defendant to live with him with safety to her person. Even now she carries marks of his violence, and the petitioner upon the witness-stand says he will not live with her; and the very fact that lie charges extreme cruelty and seeks a divorce is in the nature of evidence that he does not desire to live with her as a lifemate and companion. The facts appearing before me seem to necessitate a, decree in favor of the cross-petitioner for support. I think $7.50, which is approximately one-third if the petitioner’s income, is a proper amount to award, and I will advise a decree for that amount.

Mr. Woodruff — And the usual counsel fee, if the court please ?

The Court — Yes.


text:
    Ferdinand Thommessen, complainant, v. Eugene Kohler, defendant.
    [Submitted September 23d, 1924.
    Determined September 27th, 1924.]
    Contracts — Alleged One-fourth Interest in Agreement at Issue— Assignment-of Contract Security for Money Advanced.
    On exceptions to master’s report.

      Mr. John O. Reed, for the complainant.

      Mr. Garitón Godfrey and Mr. William I. Garrison, for the defendant.
   Ingersoll, V. C.

Upon the final hearing of this case I filed a memorandum, referring it to Special Master Slack for an accounting to ascertain the amount due the complainant.

The master has reported, and the complainant excepts thereto. The only exception is the claim of the complainant, that he was the owner of a one-fourth interest in the contract of sale (the basis of the proceedings), and that one-fourth of the proceeds of the sale should first be allowed to the complainant, before the computation of the figures entered into the profits. This was the contention at the final hearing.

It may be advisable to shortly state the facts.

One James F. Glinz had an agreement with one Thompson and another for the purchase of certain lands and premises in Atlantic City. He, needing funds to make the payment thereon, secured the same from the complainant. Glinz endorsed on said agreement the following:

“For value received I hereby assign a one-quarter interest in the within agreement of sale unto Ferd. Thommessen. the consideration being four hundred dollars in cash. Date: 12-12-1922. Signed: James F. Glinz (Seal).”

Glinz on December 30th, 1922, gave to the complainant the following certificate:

“Atlantic City, N. J., December 30th, 1922.
“Mr. Ferdinand Thommessen,
“Dear Sir:
“In connection with the loan of four hundred dollars which you loaned me, for which I assigned a one-quarter interest in the profits arising from the sale of premises Nos. -2, 3, 4, 5, 6, 7 and 8 Woolbart terrace, Atalntie City, over and above the price paid for in agreement of sale from Thompson & Lippincott; this letter is given to confirm said assignment of interest, which has already been noted on said agreement above referred to from Thompson & Dippincott.
“Very truly yours,
“[Signed] James F. Glixz.”

Some time prior to July 27th, 1923, the defendant succeeded to the rights of Glinz, and secured an additional sum of $250 from the complainant, and gave him (Thommessen) a writing as follows:

“January 27th, 1923.
' “This is to certify that Ferdinand Thommessen, of Atlantic City, has to be satisfied on day of settlement in regards purchase of properties Nos. 2, 3, 4, 5, 6, 7 and 8 Woolbert terrace, in the amount of 8650, besides Mr. Thommessen is entitled to one-third of the profits through the resale of said properties.
“[tSigned] E. Kohleb.'’

This was accepted by Thommessen, and at the hearing was produced by him.

I said in my conclusion, referring to the moneys advanced by Thommessen: “I think, without doubt, in the first inception it ivas a loan to Glinz, loan secured.”

The master considered the assignment by Glinz as security for amount advanced.

After examination of the testimony produced before the master, I am convinced that this finding is correct, and that Thommessen was not the absolute owner of a one-fourth interest in the sale agreement, but that the assignment was a security for the return of the money advanced.

The result is that a decree will he advised in favor of the complainant .for the amount due to him as set forth in the report of the special master.


text:
    Julian Bilewicz, complainant, v. Jozef Kalinowski et al., defendants. Jozefa Kalinowski, complainant, v. Henry Schultz and Stella Schultz, his wife, defendants.
    [Heard and determined September 25th, 1924.
    Filed October 2d, 1924.]
    Conveyances — Complicated Conditions Affecting Title — Sale to Complainant Fraud Under Circumstances — Title Restored to Original Parties and Return of Payments Decreed.
    On bills, &c.

      Mr. Frank F. Neuiz, representing Jozéfa Kalinowski.

      Mr. Walter S. Keown and Mr. George Boihemal, representing Henry Schultz and Stella Schultz, his wife.

      Mr. Albert 8. Woodruff and Mr. Rocco Palese, representing Julian Bilewicz.
   Leaming, V. C.

I can’t believe there is any substantial advantage to be gained in taking this case under advisement. The facts of the case I can deal with as accurately now as at any time, and there are no1 questions of law involved that I have not given very mature consideration in other cases, and I think I will undertake to dispose of it now, and that very briefly.

There are undoubtedly some circumstances surrounding this conveyance by the Kalinowskis to the Schultzes- that are suspicious, to say the least. Stefanski, the assistant of Lupton, the real estate agent, who put the transaction through, I am convinced knew' perfectly well all of the facts and circumstances that existed. In finding that the agreement between Bilewicz and Kalinowski had not been recorded, and believing that a sale eoulcl be made that would give a- perfect title to a purchaser who bought in reliance upon the record, he thought that that would settle all the trouble about the title to' the city property", because the purchaser could at once oust the occupant, having, as he yvould have, a perfect legal title. That yvas his scheme, those were his thoughts, and that yvas his aim, in my judgment. The only shadoyv of doubt that I have touching the facts is as to how far Mr. and Mrs. Kalinoyvski were in on that plan; how far they were really participating in yvhat they understood to be a well-devised scheme to sell this property to’ Schultz so that he yvould attain the status of an innocent purchaser; and there may be a shadoyv of doubt — as I stated a moment ago there are many suspicions circumstances that suggest that doubt — as to yvhether or not Schultz also, instead of being in fact an innocent purchaser, yvas really a participant in the general scheme ; but I am convinced that the testimony will not justify that last conclusion.

Under the testimony before this court and the evidence of the case as it stands, I am convinced that Schultz must be— rather the Schultzes, the deed is to the tyvo of them — must be regarded as haydng purchased this property yvithout knoyydedge of any clouds on the title and in the belief that they yvere getting perfect title to it, and the reason that they believed that they yvere getting title to it was because Stefanski and the Kalinoyvskis deceived and defrauded them; not only failed in the duty yvhich they clearly cyved to the Schultzes to tell them the truth and apprise them of the real situation, but also misrepresented the nature of Bilewicz’? possession. We have here before us a yvritten document signed bv both the Kalinowskis in yvhich they certify over their signatures that Bilewicz is a tenant of theirs and occupies that property as a tenant, and by that writing they direct him to pay all future rent to Schultz as the purchaser and new owner of the property. Mrs. Kalinowski does say she thinks the paper'which she signed was a smaller paper than that, but I have no doubt but that she signed ,that paper with her husband and knew perfectly well its contents. I don’t believe that Mr. Lupton, the real estate agent, or even the smooth. Stenfanski, pulled that paper over on the Kalinowskis. How could they ? How could a woman as shrewd as Mrs. Kalinowski obviously was upon the witness-stand — I regarded her as a wonderfully intelligent woman, although she can’t speak the English language, a wonderfully, clear-minded, intelligent, bright woman — help but know that she was putting the Schultzes in a hole in selling this property to them, since she was having difficulties, by reason of this tangle, in getting Bilewicz out of the property. How could she-anticipate that a purchaser'would get them out any easier than she by merely selling her rights or transferring them to a purchaser P So, unless it be true— of which fact there is only a vague suspicion, and the testimony certainly negatives the suspicion — that the Schultzes were in on this deal and actually knew all the circumstances and were standing in with the Kalinowskis in order to make a short road and an easy method of getting them out of the tangle they had gotten in a-nd to- get possession of the city 'property for them, unless that is true, it is impossible to- believe that both of the Kalinowskis were not participating in a scheme of fraud, a scheme of fraudulent conduct, and that they were conveying to the Schultzes a title that they knew they could not rightfully convey, because their agreement with the Schultzes was an agreement for the conveyance of a property free and clear of all encumbrances, and they, better than anyone else, knew the property was frightfully encumbered from circumstances arising from their own conduct. My judgment is that they were handing this property over to the. Schultzes with a view of getting the $2,300 cash into their hands and getting a purchase-money mortgage for the balance, ancl then stepping out from under, letting the Schultzes get along the best that they could. This they accomplished by false representations. That is fraudulent conduct against which a court of equity is especially charged to afford a remedy. A sale founded in fraud, as in my judgment that sale was, cannot stand, and will not stand, and, of course, with the sale set aside, the purchase-money mortgage necessarily fails, and the return of the $2,300, which was paid, is imperatively called for.

In their scheme they were very foolish, because they did not even clothe Schultz with the status of an innocent purchaser for value, since the law cast upon him the burden of ascertaining under what right and under what claim the actual occupant of the property was in possession. The mere fact that the vendor characterized him as a tenant, or stated that he was a tenant, would not remove from the purchaser the duty to inquire and ascertain from the best source of information available, which would be the occupant of the property, under what claim of right he occupied that property. The truth clearly is that the impelling motive upon the part of the Kalinowskis was to get rid of their property and get out of all their; trouble-, by getting the cash into their pockets and getting a purchase-money mortgage, and thus he in a position where they could say to- everybody else, “We are out o-f it, you can whistle, carry the load and get along the best you can'.” ’ They had already looted the farm; they had the benefit of the crops which they sold and the farm stock which they had disposed of, and had left the farm vacant and idle, and now they were getting a fair price for their property, and all in all they stood to be prettv substantial winners, and the temptation was too- much for them, in my judgment.

I am convinced that the only decree that can be made in this case, so far as the Schultzes are concerned, is a decree setting aside the conveyance upon the ground of fraud perpetrated upon them by their vendors, and a cancellation of the mortgage», which decree, of course, includes in the foreclosure suit a denial of the decree of foreclosure, and a direction requiring the Kalinowskis to surrender and return to the Sehultzes the $2,300 cash which has been paid to them. Now, it might happen that the Kalinowskis are not able to raise this $2,300. I think they are, but supposing thej' can’t raise it ? If the title to this property is to be restored to the Kalinowskis, as it must be if the specific performance suit fails — and in any event a deed will be made from the Sehultzes to the Kalinowskis to restore the title as it was— isn’t it clear that an equitable lien upon the property will enure to the Sehultzes for the $2,300, so that they will be sure to get their money back, unless there are some other circumstances that will render the equitable lien impossible, or will render other charges superior to that equitable lien.

This brings us to-the specific performance suit. In a case, the title of which I cannot recall, I suggested a matter touching estates by the entirety that was entirely obiter and unnecessary to its decision. I suggested that it was my view that where tenants by the entirety had not both signed the agreement of sale, and the husband alone had signed, that specific performance could be had against the husband with an abatement for the value of the wife’s interest, and that the value of the wife’s interest could be determined by ascertaining the expectancy of the life of the wife and the expectancy of the life of the husband, and treating their interests as proportionate. For instance, if the wife’s expectancy was ten years and that of the husband was eight years, the interest of'the husband’s would be. worth eight-eighteenths of the total vaue of the property, and the interest of the wife’s would be worth ten-eighteenths of the whole value of the property, and there could be an apportionment or an abatement of the purchase price, so that the husband would have to convey his interest and accept for it eight-eighteenths —in the illustration which is made — of the purchase price.

I don’t know whether in the bill for specific performance any claim is made for an abatement or not. It is not a very satisfactory result in any case, even where there is not a tenancy by the entirety and the abatement is simply the value of a wife’s dower interest, but since the time when the view above stated was suggested by me, I have given a great amount of consideration and a considerable- amount of research in reviewing that question, and in that I had the benefit of the co-operation of Yiee-Chancellor Fielder, who had the same question before him. We together considered it very fully and both agreed that I was probably in error in what I have referred to as my obiter, to the effect that specific performance could be decreed with an abatement in the ease of a tenancy by the entirety where a wife had not signed. The court of errors and appeals has rendered some decisions that would seem to very measurably support the views which I first expressed, but I am satisfied that on a full and direct examination of the entire subject by that able and careful body they will conclude, as I have since concluded and as Yiee-Chancellor Fielder has concluded, that the inherent quality of an estate by the entirety as it was defined by the English law, and the reasons for its existence, and the reason for its protection, are such that it would be contrary to- sound principle to sever that estate by a decree of that nature-, even though the effect of the decree was limited to what might be called the husband’s reversion after the wife’s death.

It is true that the court of errors and appeals has he-ld that a judgment against the husband is a lien on his interest in an estate by the entirety. That I take it is the law of this state, although it does seem a little inconsistent with what I have just said touching a specific performance case; but that is, as I understand it, the recognized law of this state, a judgment may he a lien on the husband’s so-called reversion. It sems to- follow that where a husband has been successful in resisting a suit for specific performance because his wife who holds with him refuses to sign the deed, the complainant is not wholly without remedy, because he can procure a judgment for damages, if he can establish any, and that judgment will become a lien on the husband’s share, and, eventually, ripen into value-, although the judgment creditor stands a chance to- lose the lien by reason of the husband’" death before that of the wife, if that is all the property the husband had.

My conclusion, therefore, is that specific performance cannot be decreed because of the tenancy by the entirety, the wife not having signed the agreement, even thought it were ascertained at this time by proofs, which it has not been what the reasonable expectancy of the lives of the husband and wife, respectively, may be. That will necessitate leaving the parties in the situation which they have created, with the legal title to the city property in the Kalinowskis. They will be-endowed with tire legal title both by the original record title and by the reconveyance from the Schultzes, and as tenants by the entirety.

It may be suggested that it would be in the power of this court to ascertain by reference to a master what damages the Bilewiczes have sustained and decree a lien for that. I don’t think so; I think that is purely a legal function which must be performed by a jury, and that relief of that nature cannot be awarded here.

So', the result of all this troublesome litigation will be to restore the titles to the original parties, a settlement by the Kalinowskis with the Schultzes, based on rescission, and the Kalinowskis will have to pay for whatever produce they have taken off of the farm and appropriated to their own use.

I will advise a decree along those lines.