author: Olii’hajstt, C. C. J.

text:
    JOHN S. RAMSEY, PLAINTIFF, v. A. DUNBAR HUTCHINSON, DEFENDANT.
    Decided October 11, 1935.
    For the plaintiff, Harvey T. Salierihwaite.

    For tlie defendant, David L. Smith.

   Olii’hajstt, C. C. J.

This matter is before me sitting as a Supreme Oonrt commissioner on a motion to strike out the complaint.

The suit is for a deficiency on a bond. The defendant was a party defendant in the foreclosure proceedings. The property was purchased by the plaintiff on March 13th, 1935, at sheriff’s sale, which sale was duly confirmed on March 25th, 1935. The deficiency is in the sum of $3,049.64.

Two defenses are interposed, the first based on chapter 88 of the laws of 1935 (N. J. Stat. Annual 1935, § 134-49(1), which defense has no merit and which was disposed of at the time of the argument of the motion. The second defense is that of the statute of limitations.

On 'November 14th, 1918, the defendant conveyed the land and premises, which were offered as the mortgage security to one St. Claire, by which conveyance the said St. Claire assumed the mortgage and agreed to pay the same. It is admitted that this defendant personally has paid no interest on the principal of the bond or mortgage for a period of more than sixteen years before the institution of the foreclosure proceedings. Interest was paid by St. Claire to and including the 24th day of May, 1932.

The first separate defense pleads the statute of limitations (3 Comp. Stat., 3165, § 6), as a bar to the action.

The reply sets forth that the payments of interest on the bond made, by St. Claire, the grantee of the defendant, were made by the authority of the defendant Hutchinson by reason of the assumption clause in the deed made by Hutchinson to St. Claire which reads as follows: “This conveyance is made subject to a mortgage encumbrance in the sum of two thousand five hundred dollars, which the parties of the second part hereto hereby assume and agree to pay as part of the consideration hereof.” There is no contention that the interest payments were made by express authority of this defendant.

The question presented is whether or not the running of the statute of limitations is interrupted as against the mortgagor by reason of payments of interest by a grantee of mortgaged premises who has assumed the debt.

There is apparently a conflict of authorities as to this question, but I am satisfied that the better and sounder rule answers the question in the negative.

In a situation as here presented, there are two rules existing in this state, one, the equitable rule wherein the grantor of a mortgage in a conveyance in which the grantee assumes the payment of a bond and mortgage becomes the surety upon the conveyance, the grantee being the principal; the other rule, that at law, that upon such a conveyance the grantor continues to remain the principal debtor. Palmer v. White et al., 65 N. J. L. 69; 46 Atl. Rep. 706. The only theory upon which the plaintiff can stand is that St. Claire in paying the interest was the agent of Hutchinson.

The assumption clause in the deed from Hutchinson, the defendant, to St. Claire does not create the grantee the agent of his grantor for the payment of the interest on the mortgage. The payments by the grantee were made for two purposes, first, because of the contraetural obligation existing between himself and his grantor and secondly, in order to keep alive the equity of redemption' of which he had become the purchaser. They were made on his own account and for his own benefit and effected no change in the legal relations between the plaintiff and defendant. St. Claire did not act as the agent of the defendant nor did he profess to be acting for him. St. Claire was not liable on the bond, but was liable to have his land taken for its payment. The liabilities of Hutchinson and St. Claire were separate and distinct. Neither party could do anything to increase the liability of the other. They were not joint promisors. Their two distinct promises neither coincided in time, nor were they with the same person, nor were they based on the same consideration. Old Alms-House Farm v. Smith, 52 Conn. 434. See, also, cases collected in 18 A. L. R. 1031, and 80 Id. 1436.

Counsel for the plaintiff relies on cases decided in our courts of equity where as heretofore pointed out a different rule exists and the English case of Forsythe v. Bristowe, Exchequer Reports 8 Welsby, Hurlstone and Gordon, 716, where the court said that “the assignee of the equity of redemption who covenants to pay the interest is sufficiently an agent for that purpose." The court gave no reason or authority for reaching its conclusions, which amounts to little more than obiter dictum.

The only jurisdiction which has consistently followed the rule opposed to the position I have taken is Louisiana. In that state their statute limiting actions is not comparable to ours.

In conformity with the foregoing, an order striking out the complaint may be presented.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    IN THE MATTER OF MICHAEL J. TANSEY.
    Argued May 10, 1935
    Decided June 20, 1935.

      Before Justices Trenci-iard, Heher and Perskie.
    For the petitioner, Francis J. Tansey.

   Per Curiam.

On May 3d, 1933, this court filed an opinion concurring in the findings of the state bar examiners, namely., that petitioner, Michael J. Tansey, “fraudulently converted about $4,000 of his client’s money” and “has appropriated to his own use money of his client” and “is unworthy to remain on the rolls of the court as an attorney and counsellor;” and also concurring in the recommendation of the state bar examiners “that he [petitioner] be disbarred and his name struck from the rolls.” . By order of court dated May 14th, 1933, filed May 17th, 1933, the report of the state bar examiners, as aforesaid, was confirmed, the petitioner was disbarred and his name was struck from the rolls of attorneys and counsellors of this state.

Petitioner now prays that an order be made to reopen the case for further inquiry. The prayer is “that the court may be informed of the facts developed herein, both before and subsequent to the order of disbarment, which tend to show that your petitioner was innocent of the charge of fraud and malpractice upon which the order was based; that the said order may be set aside and your petitioner may be restored to the roll of attorneys and counsellors of this court, with all right and privileges pertaining thereto. And that he may have such other and further relief as may be just.”

We desire, in limine, to restate the observation made by this court on the argument of this application, namely, that the procedure of the petitioner herein does not conform to or comply with the-proper practice, in such cases, as the same is fully outlined in In re Harris, 88 N. J. L. 18; 95 Atl. Rep. 761.

Be that as it may, we have concluded to dispose of the application on its alleged merit. Petitioner bases the application on substantially these facts: That in the suit by Prank Schultz against the petitioner for the <$6,090 in question, on motion to strike petitioner’s answer, the late Chief Justice Guminere ordered that judgment of $3,590 only be entered against petitioner and that the question of the petitioner’s rights as to the $2,500 retained by him (on his claim for service's rendered to Schultz) was expressly reserved to be determined by a court and jury in due course; that petitioner’s asserted right to retain this sum of $2,500, as for services rendered, was brought to the attention of the bar examiners: that on the trial before Judge Newton H. Porter, .and a jury, for the $2,500, the court, bv consent of the respective counsel, directed a verdict in the sum of $2,500 in favor of the plaintiff and against petitioner, but also, by like consent, ordered that all allegations in the complaint appertaining to fraud be struck, the verdict resting upon the common count of money had and received; that the petitioner before the bar examiners as well as before the court offered himself and his records in support of his claim and thus submitted himself to cross-examination; that this action on the part of the petitioner is evidence of his good faith in the premises.

The petitioner now argues that the sJ .iking of the allegations of fraud, as aforesaid, from the complaint removed the basis for the action of the bar examiners. This is not so. The bar examiners based their conclusion and recommendation on the proofs submitted to them and this court, on those proofs, confirmed their conclusion and recommendation. Moreover, the striking of the allegations of fraud, by consent of counsel, in nowise affects the proofs before the bar examiners and this court. The reason is obvious. In the suit against the petitioner plaintiff’s objective was merely to obtain a money judgment; in the proceedings before the bar examiners charging unethical and illegal conduct on the part of the petitioner, the objective was to preserve the dignity, honor and integrity of the members of the bar, officers of the court. This is sought to be accomplished by disciplining that attorney or counsellor who has been adjudged guilty of unethical, unworthy or illegal conduct. In the latter process the willingness or consent of the immediate parties, or their respective counsel, to withdraw or eliminate a charge of wrong-doing, if in fact true, cannot and must not thwart the objective sought to be accomplished by this court. If it were otherwise the administration of justice would be made powerless.

Petitioner was privileged and undoubtedly did present all of these facts to the court upon the confirmation (on notice) of the report of the bar examiners. The facts now urged are not newly discovered evidence. Hor do we see how they can in anywise form a rational basis for the mitigation or exoneration of the offense upon which the petitioner was adjudged unworthy to remain on the rolls of this court as an attorney and counsellor and as a result of which he was justly disbarred.

This case is unlike the case of In re Wendell, 3 N. J. Mis. R. 312; 128 Atl. Rep. 249, where the newly discovered evidence satisfied the court that Wendell was not guilty of the crime charged against him. The court, therefore, merely corrected an obvious injustice.

Application is denied.


author: Pee Cukiam.

text:
    CITY OF LONG BRANCH, PROSECUTOR, v. STATE BOARD OF TAX APPEALS, BOROUGH OF ALLENHURST, A MUNICIPAL CORPORATION, AND J. H. THAYER-MARTIN, STATE TAX COMMISSIONER, DEFENDANTS.
    Submitted May 14, 1935
    Decided October 1, 1935.

      Before Justices Paekeb, Case and Bodine.
    For the prosecutor, Jacob Sleinbach, Jr.

    For the townships of Dover and Berkeley, David A. Veeder.

    For the boroughs of Allenhurst and Interlaken, William J. O’llagan and Isaiah Matlack.

   Pee Cukiam.

This writ brings before us the action of the state board of tax appeals in setting aside the apportionment of gross receipts and franchise taxes of the Jersey Central Power and Light Company, a utility serving one hundred and sixty-three municipalities in this state, for the year 1933 as made by the state tax commissioner.

The judgment also directed that officer to use in his apportionment the local assessments as made, and to add to or deduct from the apportionments for the succeeding years such amounts as the various taxing districts failed to receive or were benefited by the apportionment as made.

We do not pass upon the jurisdiction of the state board of tax appeals to make the judgment under review, nor the timeliness of the application to it; but from our examination of the record, there was no factual basis for the action taken.

The proofs before the board of tax appeals indicate to us that the only evidence as to a fair apportionment disclosed the correctness of the commissioner’s action. It was, therefore, the duty of the board to affirm his action. A scientific basis for appraising a utility’s property within the several taxing districts was proved and followed by the tax commissioner. The result was uniform. Such method conforms to the law, while the acceptance of the views of one hundred and sixty-three different assessors could lead to no useful result.

The judgment under review, therefore, is set aside, with costs.


author: Lloyd, J.'

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ABRAM PREISKEL, CHARLES J. MONKS, EDWARD BOYKO AND OWEN J. CUNNINGHAM, PLAINTIFFS IN ERROR.
    Argued May 7, 1935
    Decided October 3, 1935.
    Before' Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the plaintiffs in error, Péter J. McGinnis, Merritt Lane, Robert H. McCarter and R. Lewis Kennedy.

    For the defendant in error, James D. Carpenter, Jr.

   Lloyd, J.'

The defendants below were respectively a director of public safety, a chief of police and captains of police of the city of Passaic, and were indicted by the Passaic county grand jury for non-feasance in office in that they failed to enforce the criminal laws respecting disorderly houses and gambling places. They were convicted and are plaintiffs in error in this court.

While different duties and different degrees of authority may have existed among the various officials, these all eon-verged to establish an obligation on the defendants to enforce the criminal laws and penal ordinances of the city. This responsibility was common to them all and if dereliction in this respect as charged in the indictment is established by the proofs, the defendants were guilty of non-feasance in office.

limnerons grounds for reversal are urged, but we find it necessary to discuss but two, but upon these we think a reversal must result.

The first of these is that during the progress of the trial a card bearing the printed and written name of Commissioner Preiskel was offered in evidence. The card, enclosed in an envelope of a florist in Passaic, was found in a table drawer of the apartment of one Ben Golden when a raid was made on the apartment by state police. Golden’s name figured prominently during the trial in connection with the numbers gambling game. The card contained in writing on its face an extravagant expression of appreciation of the recipient’s spirit and generosity and wishing him wealth, success and happiness, and purported to have been signed by Preiskel. When the raid itself was first attempted to be proved the testimony was rejected by the court as outside the limits of the time alleged in the indictment, but later, with misgiving, the same proof was received together with the proof of the finding of the card. It was admitted that the possession of the card by Golden could not be traced to Preiskev, and it was proved that the written words of adulation and signature thereto were not by his hand. Under such circumstances the card was clearly inadmissible. Such evidence as there was not only failed to establish the card as coming from Preiskel but clearly indicated a different source. That it was calculated to do great damage to this defendant is apparent. To admit the card as a legitimate piece of evidence against Preiskel and have it go out with the jury as an exhibit constituted a lasting object for their deliberate consideration. It is difficult to measure its effect, showing as it did an apparent close relationship between the writer and Golden, the latter a figure in the city’s underworld.

The other and remaining ground of appeal which we regard as vital in the cause is the refusal of the court to charge as to the duty and power of the officers to make arrest. This was presented in two requests for charge in behalf of the defendants Boyko and Cunningham, captains of police, and were as follows:

“A policeman, by reason of his official position, cannot arrest people at his pleasure without a warrant, because the policeman suspected that a person was a gangster or undesirable citizen. There can be no arrest without a warrant on mere suspicion or hearsay in case of a misdemeanor. In case of an ordinary misdemeanor a police officer cannot arrest the offender without a warrant unless he is present at the time of the'offense.

“In the absence of some special statutory authority a police officer cannot arrest without a warrant on mere information that a person is a gangster, hoodlum or undesirable person.”

The substance of these requests was that the court define the powers of these officers with respect to making arrest in cases of misdemeanor committed out of the presence of the officers. Instruction to the jury on the point was requested verbally by counsel during the taking of testimony, but denied by the court as out of time. Later the formal requests were presented and denied.

Mr. Justice Blackstone, in his commentaries, volume 4, page 292, sets forth the limit of authority in such case. “The constable * * * hath great original and inherent authority with regard to arrests. He may, without warrant, arrest any one for a break of the peace committed in his view, * * * and in cases of felony actually committed, or a dangerous wounding, whereby felony is likely to ensue, he may, upon a reasonable suspicion, arrest the felon.”

In Webb v. State, 51 N. J. L. 189; 17 Atl. Rep. 113, Chief Justice Beasley declared that, “it has always been in the common law the rule that a constable or other peace officer could not take the offender unless in some instances where the offense had been committed in his presence. This is the principle that has also prevailed in this state.” The rule seems also to be one of general observance throughout the states of the union. In 5 Corp. Jur. 395, it is said that “it has always been the rule that except in cases where the public security has demanded it, arrest without a warrant has been deemed to be unlawful,” citing numerous cases.

We think the defendants were entitled to have the jury informed of the power of these officers to make arrest, and assuredly the second request was an accurate statement of the law. It was of vital importance that if they were charged with neglect of duty in making arrests and suppressing crime that the jury should know just what that duty was, and when the court refused to so advise, as requested, as to the limit of power, a manifest wrong was done.

It is urged, however, that this ruling cannot avail the defendants Preiskel and Monks inasmuch as the requests were presented by Boyko and Cunningham, but the ruling is assigned for error by all of the appellants, and we think is available for all. All of the defendants were jointly indicted and jointly tried. The requests, though presented by Boyko and Cunningham were nevertheless applicable to all, and the ruling available to all. To hold otherwise would require a reversal as to Boyko and Cunningham on the last named ground and as to Preiskel on the error in admitting the card, and deprive Monks of the benefit of the erroneous ruling. Of it we think lie also is entitled to complain, and we are not prepared to make the discrimination asked.

The judgment is reversed as to all of the appellants and a venire de novo awarded.


author: Sooy, y. c.

text:
    Mortgage Guarantee Company, a corporation of the State of Delaware, complainant, v. Atlantic City Jewish Community Center et al., defendants.
    [Decided October 4th, 1935.]

      Messrs. Bolle >& Tripician, for the complainant.

      Mr. Morris Bloom, for the defendants.
   Sooy, y. c.

This is a motion to strike an answer and counter-claim to a bill to foreclose.

The allegations of the bill disclose averments that complainant is the owner and holder of a bond and mortgage admittedly executed by defendant to complainant.

As a defense to the foreclosure the defendant, in its answer, avers that complainant, after the execution and delivery of the bond and mortgage to it “proceeded to sell and assign to various persons respective undivided shares or interest therein in denominations of $1,000 each, represented by unrecorded certificates or assignments of the respective shares so sold.”

Oil the argument of the motion to strike, complainant’s affidavits disclose that the fact is that the complainant sold to investors participating certificates in the bond and mortgage in question, having a total value of the entire principal sum of the bond and mortgage, to wit, $100,000; these certificates being now held by sixty-four separate investors.

A reading of the form of the participating certificates so sold by complainant to these investors discloses that complainant retained an interest in the bond and mortgage to the extent of one-half of one per cent, of interest installments to be paid by the mortgagor and that complainant has reserved to itself the right to collect and receipt for principal and interest and in the event of default, the right to foreclose.

Irrespective of whether the participating certificate holders are assignees of the mortgage, according to the ordinary conception of such a status, as discussed in Mayor and City Council of Baltimore City v. Harper, 129 Atl. Rep. 641, it must be conceded that “each assignee took an equitable ownership in a pro rata fractional share of the bond and mortgage” (Kelly v. Middlesex Title Guaranty and Trust Co., 115 N. J. Eq. 592; 171 Atl. Rep. 823), and that complainant is trustee for the sixty-four participating certificate holders.

The general rule, as stated in Tyson v. Applegate, 40 N. J. Eq. 305 (at p. 311), has been reaffirmed so many times that other reference is unnecessary. The rule laid down in that case is:

“In proceedings upon mortgage, the general rule is that there can be no redemption or foreclosure of a mortgage unless all the persons entitled to the whole mortgage-money are before the court. So, if a mortgage has been made to a trustee in trust, all the cestuis que trustenl should be made parties, as well as the trustee, to a bill to foreclose. Story Eq. Pl. § 201; 1 Dan. Ch. Pr. 213, 253. This rule has been constantly applied in our court of chancery. Chapman v. Hunt, 1 McCart. 149; Large v. Van Doren, Ibid. 208; Jewell v. West Orange, 9 Stew. Eq. 403.”

Of course, the creation of relation of trustee and cestui que trust by the sale of participation certificates does not appear on the face of complainant’s bill but the existence of that status is disclosed by complainant’s affidavits in support of the motion to strike and complainant stands before the court, in the same position as if the averment (on this motion to strike) were contained in the bill.

Neither the bill or the affidavits discloses circumstances coming within the exception to the general rule under which complainant would be permitted to maintain its bill without making the cesiuis que trustent parties, such as are pointed out in Tyson v. Applegate, supra. The result is that complainant must amend its bill of complaint and include the certificate holders, as cestuis que trustent, either as complainants or defendants, or so amend as to bring itself within the exceptions to the rule, and the further result is that the motion to strike the defense must be refused.

As to the counter-claim, defendant avers that complainant-advanced only the sum of $95,000 and “took as evidence thereof” the $100,000 bond and mortgage in suit and that defendant has paid interest upon the $100,000 at the rate of six per cent, per annum until April 24th, 1933, and at the rate of four and one-half per cent, per annum from that date on and “claims a credit or set-oflE for the excess interest.”

Complainant moves to strike on the theory that the affidavit in support of the motion shows that the $5,000 admittedly deducted by complainant, was the result of an usurious agreement between complainant and defendant and that defendant, being a corporation, may not plead the statute, and that under Dunlap v. Chenoweth, 88 N. J. Eq. 496, if defendant seeks to recoup under the theory of a mere bonus as distinguished from usury, it must plead that the deduction was without any agreement pertaining to same.

The affidavits of complainant clearly and distinctly admit an usurious agreement, under which the $5,000 was, in fact, retained, but it is averred by complainant that said agreement was made between complainant and one Adams, as agent for the defendant, while defendant’s affidavits raise the factual question as to the authority of Adams to enter into any agreement on behalf of the defendant. This factual question may not be determined on a motion to strike, even though it might appear that defendant may be estopped from denying the authority of Adams, it, the defendant, having accepted the benefit of an agreement under which it did, in fact, receive the mortgage money. If Adams did not have authority to act for defendant, it would appear that defendant would be entitled to a credit for the $5,000 bonus, under the authority of Dunlap v. Chenoweth, supra, and if Adams was clothed with authority, the agreement made was probably corrupt and in violation of the statute. This question must be determined on final hearing and not on this motion to strike.

The motion to strike is denied, costs to abide the event of final hearing, and complainant will be allowed to file an amended bill, as herein indicated.


author: Pee Cueiam.

text:
    PEOPLES BANK AND TRUST COMPANY, RESPONDENT, v. TILLIE KLUGHAUPT, MARTIN KLUGHAUPT AND HENRY KLUGHAUPT, APPELLANTS.
    Argued May 7, 1935
    Decided September 11, 1935.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    Por the appellants, Aaron Heller.

    Por the respondent, William N. Gurlman.

   Pee Cueiam.

The bank sued on a note which was originally for $2,025, and reading as follows:

“No. 2025 Passaic, N. J., January 16, 1933.

One month after date I promise to pay to the order of myself Two Thousand Twenty-five Dollars at the Peoples Bank and Trust Company, Passaic, New Jersey.

Value received.

No. Due Peb. 16. Tillie Klughauet.”

The defense was that there had been a material alteration of the note by the payee and that it thereby became void under the provisions of the Negotiable Instruments act of 1902. 3 Comp. Stat., p. 3749.

A payment of $25 on the note had been made and noted by the drawing of a line through the figures $2,025 appearing at the top of the note, and writing over them the figures $2,000. This marking was made in lead pencil by one of the bank officials for the guidance of the bank in later dealing with the note.

The modification, if such it could be called, is in our view not a material one, impairing the integrity of the instrument as contemplated by the Negotiable Instruments act. The figures at the top are not incorporated in the note itself, and would not from that fact be controlling in the proceedings to enforce payment. As appears from the writing itself, the note is dated at Passaic, blew Jersey, January 16th, 1933. Below follows the promise to pay. The figures are at the upper left-hand corner and above the line of the date of the note. There was no material alteration of the note, for at least two reasons: One that, taken in connection with the admitted credit of the $25 payment and the testimony concerning it, the pencil marking was not an alteration, but a simple notation for the convenience of the bank that there had been a payment on account; and two, that in a legal sense the notation, even if an alteration, was not a material one as contemplated by the Negotiable Instruments act. The figures at the top of the note are no part of the promise itself, but the figures, as generally intended, were but a check on the writing embodied in the note and where there is a divergence the writing, containing the only words of promise in the note, must control.

The judgment is affirmed, with costs.


author: Per Curam.

text:
    EDITH R. JOHNSON, RESPONDENT, v. JERSEY CENTRAL POWER AND LIGHT COMPANY, APPELLANT.
    Argued May 9, 1935
    Decided September 11, 1935.

      Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    Bor the appellant, Waller L. McDermott.

    Bor the respondent, Herbert A. Euvin.

   Per Curam.

This case is largely that of Downs v. Jersey Central Power Co., decided in the Court of Errors and Appeals in 117 N. J. Eq. 138, except that the present proceeding is at law rather than based in equity. It is a complaint alleging that, a contract whereby the plaintiff became the owner of one hundred shares of the preferred stock of the defendant company, was fraudulently induced, seeking rescission and demanding return of the moneys paid less dividends received.

Certain alleged false representations were proved and the case was submitted to the jury, the defendant company offering no proofs. Verdict and judgment in favor of the plaintiff followed and the present appeal is presented.

The adequate grounds of appeal are narrowed down to exceptions to the charge and to the court’s denial of the motion to direct a verdict for the defendant. Grounds that the judgment is contrary to law and the trial court erred in giving judgment to the plaintiff are insufficient under our cases.

. The substantive law applicable is stated in the cited case, and under the proofs the court below properly refused to direct a verdict for the defendant.

As to the charge: The third count on which the case was submitted to the jury was substantially in rescission of the contract, and the learned judge was right in directing the jury if it found for the plaintiff to award a return- of the moneys paid, less the dividends received.

The charge of the court regarding the burden of proof on the plaintiff to the effect that she must show that the representation was made and that those who made it knew it was false and never intended to be performed, that it was known to the company and made by its authority, and that the plaintiff believed it to be true, was favorable to the defendant, and as to this instruction it has no just cause of complaint.

The judgment is affirmed.


author: Pee Ciieiam.

text:
    ANTHONY J. PORSKIEVIES, PROSECUTOR, v. BOROUGH OF ATLANTIC HIGHLANDS ET AL., DEFENDANTS.
    Decided October 15, 1935.
    For the petitioners, Theodore D. Parsons and Theodore J. Labrecque.

   Memorandum by the Court.

Pee Ciieiam.

The writ of certiorari allowed herein by a justice of this court, was dismissed on the ground of laches in making application therefor. See 13 N. J. Mis. R. 586; 180 Atl. Rep. 236. Our per curiam decision was filed on July 26th last. The present petition for rehearing was filed just two months later, on September 26th. The delay is not explained in any way.

The original ease was submitted on briefs at the May term. Petitioner expressly admits that the point of laches was raised in the original brief for the borough, and never answered by him, either in his original brief, or in any reply brief. In fact, no reply brief was filed; and the excuse now made is that the brief of defendant was not served “until the opening day of the term, too late to file a reply brief.”

It should be unnecessary to remind counsel that if they deemed themselves prejudiced by the lateness of the other brief, and desired to reply to some point therein raised for the first time, the court was always open to listen to an application to reply, even out of time. But with this point clearly stated in the opposing brief, they were apparently content to await a decision on the brief then in, and after that decision to wait for two months more before coming forward with the present application. We see no good reason for granting such application, and the best of reasons for denying it.

It is suggested that laches is not available without some preliminary motion to dismiss. We do not so understand the practice.

It is suggested further, that no rule of dismissal was ever entered on our decision of July 36th. But nothing is pending before us in that regard. If the prosecutor desires to review our decision, he may himself enter a rule for a judgment of dismissal, expressly without prejudice to an appeal; on notice to the other side of motion for leave therefor.

The present application is denied.


author: Campbell, A. M.

text:
    William E. Renner, petitioner, v. Elfrieda Renner, also known as Elfrieda Renner Lowe, defendant.
    [Decided August 6th, 1935.]

      Mr. George F. Losche, for the petitioner.

      Mr. Patríele Henry Maley, for the defendant.
   Campbell, A. M.

This is an action for divorce for the cause of adultery. Following the rule laid down in Feickert v. Feickert, 98 N. J. Eq. 444; 131 Atl. Rep. 576, petitioner contends that defendant took up her residence in Nevada for the purpose of procuring a divorce from him and without any intention of becoming permanently domiciled there; that she fraudulently concealed that fact from the Nevada court and succeeded in obtaining a decree as the result of such fraudulent concealment. The adultery complained of is the connubial intercourse which occurred as the result of defendant’s marriage to Robert Ellsworth Lowe subsequent to the entry of her Nevada decree. Defendant’s answer admits procurement of the Nevada decree but denies that it was fraudulently obtained. The parties were married in Ridgefield Park, in this state, September 20th, 1925, and cohabited there, as husband and wife, until September 22d or 23d, 1932. During the afternoon of one of the latter days defendant left petitioner and removed with their jointly owned household effects to her brother’s home in Ridgefield, being a short distance from Ridgefield Park. She took with her the only child of the marriage, Henry Conrad Renner, who was then about three years old.

On October 31st, 1932, defendant filed her bill in this court for separate maintenance, alleging extreme cruelty. On the same day an order was entered directing this petitioner to show cause why he should not be compelled to pay maintenance and support pendente for defendant and the child. On June 12th, 1933, a consent order dismissing said bill was advised and filed.

On or about January 19th, 1933, defendant and the child left this state for a destination unknown to petitioner. On April 6th, 1933, she filed a complaint for divorce in Nevada for the cause of extreme cruelty. At the time of the Nevada decree defendant had resided in that state for the period required by its statutes to confer jurisdiction of the subject-matter of the suit and of the petitioner herein. Prior to and during that period the matrimonial domicile of petitioner herein was in this state; he did not voluntarily submit himself to the jurisdiction of the Nevada court nor was he served with process within that state. Jurisdiction over him was obtained by publication, in accordance with the statutes of Nevada and personal service of summons and complaint was made on him at his home in this state, on April 20th, 1933, by the sheriff of Bergen county. Adequate time was afforded him to answer and defend the suit. On April 24th, 1933, he filed his bill for injunction in this court, praying, inter alia, for an order directing this defendant to show cause why she should not be perpetually restrained from proceeding with her Nevada suit, that she be commanded to present the truth of the matters alleged and shown in said bill to the Nevada tribunal wherein her divorce proceedings were pending. and in good faith to urge that tribunal to discontinue her said action. The bill alleged, among other things, the pendency of her separate maintenance action in this court, and that by fraud and suppression of the truth she was attempting to induce the Nevada court to adjudicate that her residence had been in that state for more than six weeks prior to the institution of her suit therein. On the same day an order was entered directing this defendant to show cause on May 15th, 1933, why she should not be restrained and enjoined according to the prayer of said bill. It was further ordered that defendant, in the meantime, and until the further order of this court, desist and refrain from all proceedings in her Nevada suit. True copies of said bill, the affidavits thereunto annexed, and of the said order, were ordered served upon defendant wherever she might be found, either personally or by mail. On May 15th, 1933, being the return day of the show cause order, defendant did not appear either personally or by counsel. Thereupon an order was entered to the effect that this defendant be enjoined and commanded to desist and refrain from all further proceedings in her Nevada suit until the further order of this court. It was further ordered that a true eopjr of said order be served upon defendant wherever she might be found, either personally or by mail. The show cause order, with its ad interim restraint and the permanent injunction, respectively, were forwarded by registered mail to defendant, directed to her post office address in Las Vegas, as set forth in her Nevada complaint. Both, however, were returned to petitioner’s solicitor marked “unclaimed.” Petitioner’s bill for injunction has not gone to final hearing; as of record it appears to have been abandoned. However, and notwithstanding these orders, defendant proceeded with her Nevada suit, and on May 24th, 1933, was granted a final decree of divorce for the cause of extreme cruelty. On September 15th, 1933, defendant married Lowe at Las Vegas, Nevada. On the following day defendant and Lowe filed a petition in a Nevada court praying for an order permitting them to adopt said infant child. On the same day an order of adoption was entered.

On January 10th, 1934, a federal grand jury indicted defendant and Lowe for misapplication of funds and making false entries in the boobs and records of the Teaneck National Bank where Lowe had been employed as cashier. Thereafter, defendant and Lowe were apprehended in California and brought to this state by federal agents. Pleas of guilty were subsequently entered and sentence was pronounced upon both. On September 3d, 1934, a child was born of the marriage of defendant and Lowe. Petitioner and defendant have not cohabited as husband and wife since September 22d, 1932. Since her apprehension in and return from California, defendant has remained in this state.

Petitioner testified, substantially, as follows: Prior to defendant removing from their home in September, 1932, they had quarreled frequently, the final break having occurred the night preceding such removal. He was present while the moving was in progress, saw defendant but did not speak to her. He remained a few minutes during which he obtained possession of some papers from the second floor and then left. A few days after the separation he wrote two letters to defendant requesting her to return to him. Both letters were forwarded by registered mail and copies retained. She did not answer them. He did not testify as to their contents. Thereafter ho saw and talked to defendant but once and, to use his language, “that was enough.” In this respect he testified that the purpose thereof was to see his son rather than defendant: that he did not on that occasion request her to return to him, and that, with the exception of the two letters, ho did not make, nor cause to be made, any conciliatory overtures, although she resided within a short distance from where he was living and he passed her home daily until she left this state about four months after the separation. Ho admitted that during this period he had seen his wife and child walking along the streets in Ridgefield Park almost daily but that he made no effort to speak to either of them. Petitioner admitted that on one occasion he had forcibly ejected defendant from their home. She had frequently asked him for money in order that she might go to Reno to procure a divorce, thus avoiding local publicity of their marital discord. He had consulted a lawyer, and the chief of police and police recorder, respectively, of Ridgefield Park, concerning defendant’s attempts to “frame” him before the separation; he anticipated trouble with defendant and had prepared to meet it long before the separation. He declared that he possessed no knowledge of defendant having committed adultery prior to her having left this state; that one reason why he did not continue to prevail upon her to return to him was because she had, upon several occasions, told him that she would only have sexual relations with a man whom she loved; that that declaration was sufficient proof to him that she was carrying on an illicit affair with another man. He testified that he was suspicious of her conduct; that rumors had come to him to the effect that she was “running around” but that he had not confronted her with his suspicions; that, therefore, being suspicious, he did not want her to return to him. Por the purpose of establishing the close alliance of defendant and Lowe prior to her leaving this state, Harry Weidlig, a police officer of Maywood, testified that on the night of July 3d, 1928, while it was still light, he apprehended defendant and Lowe in a car parked on a main traffic artery; he observed both adjusting their clothing, placed them under arrest for open lewdness and took them to police headquarters where they were booked for disorderly conduct. Lowe’s identity was disclosed by his driver’s license. Weidlig declared that defendant voluntarily gave her name, stated that she was married and pleaded with him and the desk lieutenant that her identity be not disclosed on the police blotter. Her supplications were acceded to and she was aliased as Jane Doe. Lowe deposited cash bail of $25 for the future appearance of defendant and himself before the police recorder. Hot appearing, the bail was forfeited and prosecution abandoned. There was no testimony offered by these police officers to the effect that either defendant, or Lowe had admitted that they had been observed in the' compromising position that policeman Weidlig claims he had found them. Both officers testified that neither had seen defendant or Lowe either before or after July 3d, 1928. And yet, more than six years later, both identified Lowe from his photo introduced at hearing, and both identified defendant by the simple and convenient expedient of pointing her out, seated at counsel table, in open court. The police blotter was not produced. Officer Weidlig’s testimony concerning his observation of defendant and Lowe was neither corroborated nor was I impressed by him or it. For a further reason, this court is not inclined to attach probative value to the uncorroborated testimony of a single witness in an action for divorce for the cause of adultery, particularly when such testimony is the tardy disclosure of a circumstance, so long withheld as to render the witness pariiceps criminis.

Petitioner also produced documentary evidence for the purpose of showing that defendant, masquerading under the name of Ellen E. Loree, and Lowe had jointly committed a number of criminal acts relating to the Teaneck National Bank. Petitioner contends that these criminal acts bear stalwart witness to the fact that defendant and Lowe had carried on adulterous relations throughout the period during which they had manipulated the bank’s funds and records; that there could not have been a closer association of two criminals of opposite sex engaged in a common criminal purpose; that this common purpose drew defendant and Lowe so close that she no longer had any use for her husband; that her relationship with Lowe had ripened into something more than a mere acquaintance; that all of this conduct supports the charge that defendant’s Nevada decree was fraudulently procured. Othbr than the testimony of policeman Weidlig, there was not a particle of evidence offered in proof of any adulterous conduct between defendant and Lowe prior to their marriage.

Petitioner further charges that while there is no direct proof that defendant and Lowe left this state together, the closeness in point of time of their departure, defendant’s promptness in setting up her alleged residence in Nevada, the procurement by Lowe of a Mexican decree of divorce from his wife after his disappearance from this state, the marriage of defendant and Lowe within so brief a period of time after the entry of her Nevada decree, and in furtherance of their insidious plan, the adoption of the child of this petitioner and defendant, is cumulative proof of her having fraudulently invoked the jurisdiction of the Nevada court. The evidence discloses that defendant left her home at Kidgefield Park on January 19th. 1933. Lowe, too, disappeared from the Tea-neck National Bank on that day and never returned there. No proof was offered that they left this state together. Petitioner “assumes” that defendant took up her residence in Nevada on February 23d, 1933, because she filed her complaint there on April 6th, 1933, the interval between these dates being exactly six weeks, the period of residence required by the statutes of Nevada. There is no proof that she arrived in Nevada on February 23d. Having left this state January 19th, and in view of the fact that the trip by railroad from New York City to Las Vegas requires about four days, it is quite logical, if I, too, may be permitted to assume, that her arrival there was on January 23d, or approximately ten weeks before she instituted her suit. Her final decree was entered May 24th, 1933. Defendant and Lowe, however, delayed their nuptials until September 15th, 1933, or nearly four months. There is no evidence as to when they left Nevada for California, where they were apprehended and brought to this state January, 1934, nor that defendant had abandoned her domicile in Nevada with intent to establish one in California. However, she did not return to New Jersey voluntarily, and while she is presently resident in this state, there is nothing to indicate that she has set up her domicile here.

At the conclusion of petitioner’s case, defendant moved to dismiss the petition for want of sufficient evidence to support a decree, reserving the right, however, in the event of such motion not prevailing, to interpose her defense. This is not the proper practice in equity procedure because a motion of that type is, in effect, in the nature of a motion to nonsuit. There is not, in this respect, any analogy between equity and law procedure; nonsuits are applicable only to causes arising before common law tribunals and cannot be resorted to in actions of an equitable nature.. The reason for this is obvious. In actions brought on for hearing in courts of law, the presiding judge rules upon questions of law and the jury determines the factual issues. The object of a nonsuit in such proceedings is to withdraw the case from the jury when the issue has become narrowed to a question of law to be decided by the presiding judge. It is because of this dual nature, i. e., determination of matters of fact by the jury, and rules of law by the judge, in actions at law, that gives rise to the practice oí moving for nonsuit. But there is no necessity for resorting to this procedure in equity actions because questions of law as well as issues of fact are determined by the chancellor. It is the province and duty of the chancellor to decide upon the facts and the law. Miller v. Wack, 1 N. J. Eq. 204, 215; Riehl v. Riehl, 101 N. J. Eq. 15; 137 Atl. Rep. 787; Blue Goose Auto Service, Inc., v. Blue Goose Super Service Station, Inc., 110 N. J. Eq. 438; 160 Atl. Rep. 836; reversed, in other respects, by 110 N. J. Eq. 547; 160 Atl. Rep. 316.

For a further reason, a motion to dismiss, with reservation, would undoubtedly tend to prolong litigation; it might not have the effect of a final judgment as to the rights of the parties because the same question may arise in future when the petitioner is able to supply the testimony which was lacking. In a court of equity the defendant must elect to offer matters in defense or rest his case. If he is willing to risk his case upon petitioner’s proof, or rather, the failure of petitioner to prove his case, such conclusion is tantamount to a submission of' the case on the merits to the chancellor. In Sawyer v. Platt (New Jersey Chancery), 77 Atl. Rep. 1043, Vice-Chancellor Learning stated what appears to be the single reported rule on this subject in this state, viz., “it is not the practice of this court to entertain, at the conclusion of complainant’s evidence, a motion on the part of defendant to dismiss the bill for want of sufficient evidence to support a decree. A defendant is here privileged to rest his cause upon the evidence offered by complainant, or to introduce evidence in his own behalf, at his election.” While, a.s stated in the foregoing case, unusual circumstances were involved, the learned vice-chancellor applied, nevertheless, the rule as therein stated and which rule appears to be in complete harmony with the reported expressions of tribunals in sister states possessing equity powers. This defendant was, therefore, precluded from interposing a motion to dismiss with reservation; having moved to dismiss the petition she elected to rest her case.

Petitioner contends that because defendant offered no testimony in contradiction of his evidence, she either feared the effect of whatever evidence she may have been able to offer or that she had no defense; that the court is without benefit of defendant’s version of the situation; that because the evidence offered on petitioner’s behalf having been neither denied nor contradicted, this court is “logically called upon to assume” that it is true. Defendant not having interposed a defense at the final hearing, the matter proceeded, in so far as the proofs were concerned, somewhat in the nature of an action ex parte. The burden is on the husband, suing for divorce, to prove his case, and all uncertainties of fact should be resolved against him. Sheeran v. Sheeran, 115 N. J. Eq. 75; 169 Atl. Rep. 871. It is also the rule, in matters of ■"divorce, that the state is considered as a party on the theory of public policy; that in uncontested cases it frequently happens that relief is denied on petitioner’s testimony; that petitioner’s testimony must be carefully considered in order to ascertain if it be sufficient in itself to warrant a decree; the defendant’s failure to offer evidence is not conclusive against her. Brinkerhoff v. Brinkerhoff, 106 N. J. Eq. 331; 150 Atl. Rep. 679. Ample corroboration was offered as to the marriage of the parties hereto, of the birth of their child, of the uninterrupted cohabitation of the parties in this state until September, 1932, and of petitioner’s domicile in this state continuously for many years. As to defendant’s separate maintenance suit: Petitioner charges that defendant’s failure to prosecute that action constituted one of the elements of fraud incident to her Nevada decree; that the setting up by her of a residence in Nevada, and the rapid conclusion of her divorce proceedings there, definitely indicated her fraudulent purpose of circumventing the ability to obtain relief in this court; that the pendency of her action here barred the institution of her Nevada suit. A somewhat similar situation is found in Fairchild v. Fairchild, 53 N. J. Eq. 678; 34 Atl. Rep. 10. In that action it was contended that because the wife’s separate maintenance action was pending in this court at the time of the institution of divorce proceedings by her husband in Kansas, the foreign tribunal was deprived of jurisdiction. The court of errors and appeals, however, declared the rule to be otherwise; it stated that “this contention is without force. The pendency of a suit between the same parties, and for the same cause of action, in this state is no bar to a subsequent suit brought in a sister state. The remedy of the defendant is to apply to the court [italics mine] in Avhich the subsequent suit is brought to stay proceedings, or to refuse final judgment, until the suit here is determined; and the granting or refusal of such application is a matter of discretion in the court to which it is made.” (Cases cited.) It does not appear from the proofs in the case at bar that an application was made to the Nevada court to stay defendant’s proceedings there until her separate maintenance action in this court had been determined. A suit for separate maintenance, as distinguished from an action for divorce, contemplates solely the present financial needs of the wife by anticipating an order directing the husband to support her where the abandonment by him has not been for a justifiable cause. While the actions are, in a measure, of a kindred nature, both involving the failure of the husband to discharge a duty arising out of the marital status, yet the one contemplates temporary relief while the other finally determines the ultimate claim of the wife. An order settling alimony where the marriage relation continues and where provision for temporary support only is made, may not, therefore, properly be presented as a former adjudication in a subsequent action brought by the wife for divorce and permanent alimony. If, then, defendant’s separate maintenance suit in this court had been brought to a final decree it would not have been a bar to a subsequent suit brought by her for divorce either in this or any other state. It follows, therefore, that there having been no final determination of her action in this court, hex rights were no more restricted or limited than if there had been a final adjudication.

As to defendant’s alleged fraud: In Fairchild v. Fairchild, supra, the court of errors and appeals held it to be the settled rule in this state that the only grounds upon which the judgment of a court of general jurisdiction can be disregarded in another state are, first, where the adjudging tribunal had no jurisdiction over the person against whom judgment was pronounced, or over the subject-matter of the litigation; and, second, where the adjudication of the foreign tribunal had been obtained by fraud. In Pahy v. Pahy, 107 N. J. Eq. 538; 153 Atl. Rep. 519, the court of errors and appeals held that ¡where the court in which the divorce was obtained had jurisdiction over the subject-matter, and its powers were limited to the granting of relief to a resident of the state, its adjudication that the complainant was such resident is final, unless it is made to appear that the court was led to this conclusion by fraud perpetrated upon it by the complainant; that mere suspicion that one having gone from this state to a foreign tribunal was for the purpose of obtaining a divorce with no intention of becoming a permanent resident there, is not. sufficient to justify treating the decree of the foreign court as a nullity because fraud is a fact that will never be presumed but must always be clearly and convincingly proved. There is a long line of reported cases to this effect. No useful purpose will be served in citing them. Furthermore, since a. decree of divorce has admittedly been entered in Nevada dissolving the marriage between the parties hereto, the burden is obviously on petitioner to establish the alleged infirmities of that decree. Field v. Field, 103 N. J. Eq. 174; 142 Atl. Rep. 644.

As to petitioner’s contention that defendant was precluded from obtaining a domicile in Nevada because she was a fugitive from justice: The federal constitution, article 4, section 2, provides: “A person charged in any state with treason, felony, or other crime, vjho shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he has fled, be delivered up, to be removed to the state having jurisdiction of the crime.” (Italics mine.) From the numerous authorities I have examined, there appears to be marked distinction between one who is a “fugitive from justice” and one “who shall flee from justice.” It was held in Day v. Otis, 8 Allen (Mass.) 477, that the word “charged,” as used in the federal constitution, implies that an offense has been alleged against a person “according to the forms of law.” In Pierce v. Creecy, 210 U. S. 387; 28 S. Ct. 714; 5 L. Ed. 113, it is stated that the word “charged” is to be construed in its broad signification to cover any proceeding which a state may see fit to adopt by which a “formal accusation” is made against an alleged criminal. In Hyatt v. Corkran, 188 U. S. 691, 712; 23 Sup. Ct. 456; 47 L. Ed. 657, cited in Taft v. Lord, 92 Conn. 539; 103 Atl. Rep. 644; L. R. A. 1918E, 545, it is stated that one who is without the jurisdiction of the state when he is there wanted to answer a criminal charge does not, by reason of his absence alone, become a “fugitive from justice;” nor does he become such from the mere fact that he has “rendered himself liable to criminal prosecution” in that state. In Ex parte Reggel, 114 U. S. 642; 5 Sup. Ct. 1148; Roberts v. Reilly, 116 U. S. 80; 6 Sup. Ct. 291; and Kingsbury’s Case, 106 Mass. 223, cited in Drinkall v. Spiegel, 68 Conn. 441; 36 Atl. Rep. 830; 36 L. R. A. 486, it was stated that the fact that a man “charged” with a crime in one state, and afterwards is found in another, has generally been regarded as prima facie evidence that he is a “fugitive.” From the foregoing it seems that one who, being within the state, committed treason, a felony or other crime, has fled the jurisdiction when he is there wanted to answer, does not become a fugitive from justice unless and until he is formally charged therewith; that the word “charged” as used in article 4, section 2 of the federal constitution, is construed to mean that an indictment has been found or an affidavit has been made before a magistrate alleging the commission of such offense or offenses.

Defendant’s Nevada decree was entered May 24th, 1933. She was not indicted until January 10th, 1934. Although she removed from this state to Nevada on January 19th, 1933, she did not, however, become a “fugitive from justice” until nearly a year later. Our statute of limitations (2 Comp. Stat. 1910 p. 1870 § 152), provides that no person shall be prosecuted for certain crimes unless an indictment shall be found within two years from the time of committing the offense, but “that nothing herein contained shall extend to any person fleeing from justice.” The phrase “fleeing from justice” applies to a person who, having committed a crime, has removed from or secreted himself within the jurisdiction wherein the offense was committed with intent to avoid detection or prosecution, the statute ceasing to run in the meanwhile.

In Harral v. Harral, 39 N. J. Eq. 279, decided in 1884 by the court of errors and appeals, and repeatedly cited because defining the elements essential to the 'acquisition of the domicile, particularly in divorce matters, it was held that there must be a “voluntary” change of residence; the residence at the place chosen for the domicile must be actual; to the factum of residence there must be added the animus manendi; that that place is the domicile of a person in which he has “voluntarily” fixed his habitation, not for a temporary or special purpose, but with the present “intention” of making it.his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home. In Wallace v. Wallace, 65 N. J. Eq. 359, the court of errors and appeals stated that it concurred in the principle that a person may legitimately move to another state in order to avail himself of the laws of that state, and this includes, necessarily, the right to remove into the jurisdiction of this state for the “purpose” of procuring a divorce, the only requirements being absolute good faith in the taking up of such residence and of the animus manendi; in other words, the factum of residence and the animus manendi prove the domicile. Consequently, the “intention” to acquire a new domicile, and not the “purpose” in making the change, is the pivot on which the inquiry turns. The term “residence” as used in Divorce act of 1907 (2 Comp. Stat. 1910 p. 2021), includes not only the factum of residence but also the animus manendi; the residence required by the statute being equivalent to domicile. Hess v. Kimble, 79 N. J. Eq. 454; 81 Atl. Rep. 363. The phrase “voluntary change of residence,” as used in Harral v. Harral, supra, is construed to mean “effected by choice or volition; unconstrained of will.” In this respect it might be urged that defendant did not leave this state voluntarily, but, conversely, the impelling force was conscious guilt of crimes she had committed incident to the Teaneck National Bank; that she fled the jurisdiction for the “purpose” of avoiding detection and prosecution rather than with the “intention” of establishing her domicile in Nevada. “Intention,” or motive, is an operation of the mind, a mental act, which may take place but remain confined in the mind which conceives it and never be susceptible of proof, unless it is evidenced by some act or declaration of the party which betrays it. 2 Words and Phrases (2d ser.) 1126. “Intention” to acquire a new domicile is presumed to be voluntary until clearly and convincingly proved to the contrary; the presumption is in favor of good faith rather than unlawful motives. Consequently, a “fugitive from justice,” as well as one “who shall flee from justice,” may acquire a new domicile if the change is voluntarily made and the intention to so acquire, as comra-distinguished from the purpose, is predicated upon good faith.

As to the restraining orders: As stated, supra, neither the ad interim, nor the permanent restraining order was served upon defendant. Service of both, however, was made upon her attorneys by registered mail. In Van Doren v. Robinson, 16 N. J. Eq. 256, it was held that constructive notice is knowledge imputed on presumption, too strong to be rebutted, that the knowledge must have been communicated. Even though service was made outside this state, if the matrimonial domicile of defendant was here the restraining orders were obligatory on her. Kempson v. Kempson, 63 N. J. Eq. 783; 52 Atl. Rep. 360. If, however, this court had no jurisdiction over defendant it is obvious that she was not bound to obey them.

As to defendant’s domicile in Nevada: In re Geiser’s Will, 82 N. J. Eq. 311; 87 Atl. Rep. 628, it was stated that the unity of domicile exists during coverture, unless the wife acquires one elsewhere by the husband’s consent; that such consent may be either actual or constructive and may be manifested by acquiescence, by abandonment, or by such conduct inimical to cohabitation as would secure the wife a decree of divorce, a vinculo or a mensa ei thoro. And again, in Brown v. Brown, 112 N. J. Eq. 600; 165 Atl. Rep. 643, it was stated that where such residence or domicile is once established it is presumed to continue unless there be proof of the acquisition of a new domicile or residence, and that to establish the latter more than a mere change of abode is requisite; the change of abode must be animus manendi. Also in Tracy v. Tracy, 62 N. J. Eq. 807; 48 Atl. Rep. 533, the court of errors and appeals held that a feme covert’s residence follows that of her husband but terminates with the reason upon which it rests; when the union between the two ceases and an attitude of hostility arises, they may each have different residences.

That defendant separated herself from petitioner for justifiable cause while both were resident here, and that petitioner abandoned defendant is amply supported by petitioner’s testimony.

The rule laid down in Stephens v. Evans, 105 N. J. Eq. 203; 147 Atl. Rep. 447, is to the effect that there must be proof that' defendant went to Nevada in order to obtain a divorce; the language of the statute (2 Comp. Stat. 1910 p. 2041 § 33) is clear that to void such decree the “intent” to evade our statute must appear.

It is further urged that the removal of the child of the parties from this state by defendant without petitioner’s consent was unlawful and accentuates her fraud; that the adoption of the boy in Nevada by defendant and Lowe, and having his name changed to Charles Perry Lowe, demonstrated defendant’s contempt for this court and further contributed to the atmosphere of illegality and fraud which prevaded the whole situation. While it is true that 2 Comp. Stat. 1910 p. 2809 § 19, prohibits the doing of what defendant did (taking the child out of this state) particularly because this court had jurisdiction over the minor by reason, at least, 'of the pending separate maintenance proceedings, nevertheless, and without thought of excusing or absolving her in the premises, I cannot conceive how she could have more emphatically demonstrated her conclusion to relinquish her domicile here; she took with her her child who was, undoubtedly, her most cherished possession and whose father had evinced no desire to visit for months before her departure; she left behind nothing that would indicate her intention to return to this state. She brought about the adoption of her child and his change of name in Nevada. It is sensible to assume that this was an added reason why she proposed to continue her bona fide domicile in that state; she undoubtedly realized that in the event of her returning with the child to this jurisdiction, if only temporarily, this petitioner would experience no difficulty in preventing her from again removing him from this state except under an appropriate order of this court. The child is a legitimate unemancipated minor. The rule laid down in Rinaldi v. Rinaldi, 94 N. J. Eq. 14; 118 Atl. Rep. 658, is that the domicile oí a legitimate unemancipated minor whose will cannot concur with the fact of residence, is, if the father bo living, the domicile of the father; that a minor cannot change his domicile of his own will. The adoption procedíngs were without effect.

No clear and convincing proof was offered showing that defendant’s departure from this jurisdiction was “in order” to obtain a divorce, or was with “intent” to evade our divorce statute, or was other than voluntary or was prompted by her lack of intention to acquire a domicile in Nevada, or that she was not physically and continuously within the jurisdiction of Nevada during the period required for domicile by the statutes of that state, or that her intention to remain there was not made in good faith. For a further reason, to grant petitioner the relief he asks would involve a decree against the validity of the divorce, and of the subsequent marriage, and consequently the legitimacy of the child of the marriage, and that, too, in a suit to which the child is not a party.

Defendant’s Nevada decree was not fraudulently obtained. Solicitor for defendant will accordingly submit an order dismissing petitioner’s petition.


text:
    THE PENNSYLVANIA RAILROAD COMPANY, PROSECUTOR, v. THE BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY, RESPONDENT.
    Argued May 17, 1935
    Decided September 11, 1935.
    Before Justices Parker, Case and Bodine.
    Por the prosecutor, W. Holt Apgar.

    Por the respondent, John A. Bernhard.

   Per Curiam.

The board of public utility commissioners by its order dated September 20th, 1930, initiated a proceeding directed toward the elimination of the grade crossing of the Pennsylvania Railroad Company at Oak Tree road, Iselin, township of Woodbridge. The decision of the board was dated March 6th, 1934, and the order was issued on March 22d, 1934. The order directed the Pennsylvania Railroad Company to substitute for the grade crossing an underpass in accordance with plans perfected by the board and incorporated in the order. On October 18th, 1934, the railroad company applied for and obtained a rule to show cause why a writ of certiorari should not issue to review that order. This is the return of the rule.

The reasons, printed in the state of case, upon which prosecutor seeks the writ are six in number, but all revolve, as does the prosecutor’s brief, around two prepositions, namely, first, that the last testimony taken in the matter by the board was on June 29th, 1931, and that between that time and the date of the order conditions incident to the elimination of the crossing had materially changed, wherefore, as is said, there was no competent evidence upon which the order could be based, and, second, that the prosecutor is under financial stress.

We find no evidence of changed conditions. Prosecutor considers that the court should take judicial notice of an increase in the cost of materials and of labor during the period mentioned; but we think that if there were changes in construction costs and that these changes had material bearing upon the issue the matter should have been one of proof before us. Prosecutor states that it was not permitted, before the determination, to submit testimony addressed to the construction scheme incorporated in the order. It is true that no hearings were called or conducted by the board after June 20th, 1931; but prosecutor knew full well that the proceedings were pending, and if it considered that the testimony taken was outmoded by the march of events, it was at liberty at any time up to the final determination to seek the privilege of submitting further testimony. It did not seek that opportunity. Prosecutor’s assistant engineer in the Hew York zone, in charge of general designing and estimating, including construction work, before the making of the board’s decision and about February 28th, 1934, was given a copy of the plan and made an estimate of the costs. With that full knowledge the prosecutor, although later directed by the order of March 22d, 1934, to begin the actual course of construction on or before May 1st, 1934, and to carry on the same continuously until completion, allowed months to pass without objection of any character either as to plan or cost. It did, on June 6th, 1934, apply for an extension of time to be in and complete the project. On June 13th, 1934, the board denied the application. On July 17th, 1934, the prosecutor presented a petition, later withdrawn,, for a rehearing, and that petition, while it attacked the engineering features and the costs of the board plan, did not set up that the plan was adopted without a hearing, or that there had been meanwhile a change of conditions. That seems to have been the last step taken until application for the present rule in the month of October.

The proofs and the argument make clear that prosecutor’s real purpose is to carry along the proceedings until it shall be in better financial position. We sympathize with purpose upon which to issue a writ of certiorari. Much of the delay between the time of the hearings and the making of the decision and the order was due to the financial pressure to which both the state and the railroad company were subjected; and for that delay the prosecutor expresses its grateful appreciation.

The board of public utility commissioners had jurisdiction of the subject-matter. Unquestionably there was evidence to support its determination. That determination appears to us to have been reasonable and not to have infringed property rights. We find no arguable question upon which a writ should issue.

.The rule is discharged, with costs.


text:
    THE PENNSYLVANIA RAILROAD COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY (WOODBRIDGE), RESPONDENT.
    Argued May 10, 1935
    Decided September 21, 1935.
    .Before Justices Parker, Case and Bodine.
    For the prosecutor, John A. Hartpence and W. Holt Apgar.

    For the respondent, John A. Bernhard.

   Per Curiam.

The writ seeks to review an Order of the public utility commissioners directing the elimination of grade crossings of the Woodbridge and Perth Amboy Railroad branch of the Pennsylvania Railroad Company in the township of Woodbridge. The board fixed December 1st, 1934, as the date for the commencement of the work. This order was dated September 6th, 1934, and directed the completion of the work on or before September 1st, 1935. On December 12th, 1934, the prosecutor applied for additional time in which to commence work. The hearing on the petition for modification was fixed for January 2d, 1935. The board then changed this date to January 19th, 1935. The defendant then asked an extension of the hearing on their question until March 5th, 1935, notwithstanding the illness of the railroad’s attorney in charge, the board subsequently heard the request for delay in the presence of other counsel somewhat familiar with the situation.

We are asked to review this action of the board. The petition seeking the delay in the commencement of the work was addressed to the sound discretion of the board of public utility commissioners. The reasons for the continuance are substantially the same reasons which were urged on rule to show cause why certiorari should not issue in the case of Pennsylvania Railroad Co. v. Board of Public Utility Commissioners, 13 N. J. Mis. R. 766. We can find no substance in the assertion that we may review the action of the board of public utility commissioners merely because it fails to continue an application for delay in the performance of its orders because of the financial condition of the prosecutor.

The prosecutor is in laches if it seeks a review of the original order and the refusal to continue the hearing on the application for delay in the commencement of work rests in the sound discretion of the board and those who seek a modification of the order entered, after due hearing, should prosecute their application with dispatch and cannot complain of the failure to delay matters further.

The writ will be dismissed.


author: Bodine, J.

text:
    JOHN D. CASTLES, PROSECUTOR, v. THE GOVERNING BODY, TO WIT: THE MAYOR AND COUNCIL OF THE TOWN OF KEARNY, RESPONDENTS.
    Submitted May 17, 1935
    Decided September 11, 1935.
    Before Justices Parker, Case and Bodine.
    Por the prosecutor, Edward J. Madden.

    Por the respondents, Thomas G. Walker.

   Bodine, J.

The prosecutor, an exempt fireman, seeks the review of an ordinance abolishing his office. He was first appointed municipal superintendent of the town of Kearny for the term of one year, pursuant to an ordinance passed July 26th, 1911, and supplemented August 23d, 1911. His duties were to secure enforcement of the laws and ordinances relating to weights and measures and building construction and alteration. He later became also charged with the duty of issuing jitney licenses. He served the municipality continuously until February 13th, 1935, when he was ousted without charges being preferred.

Prior to January 1st, 1918, he had been reappointed each year for a term of one year. Latterfy, no such action was taken. It is apparent that prosecutor held an office. McGrath v. Bayonne, 85 N. J. L. 188; 89 Atl. Rep. 48. It is not necessary to determine whether he had tenure under chapter 212 giving tenure to exempt firemen in certain instances (Pamph. L. 1911, p. 444; Cum. Supp. Comp. Stat. 1911-1924, p. 2163, §§ *136-1721C(1) to *136-1721C(3), or under statutes giving tenure to municipal superintendents of weights and measures. Neilley v. Passaic, 13 N. J. Mis. R. 283; 177 Atl. Rep. 855. Such were some of his duties. Pamph. L. 1912, p. 168; Pamph. L. 1920, p. 406; Cum. Supp. Comp. Stat. 1911-1924, p. 3853, § 234-83. He has mistaken his remedy.

The record is entirely silent as to the motive behind the abolition of his office, but it does appear that another was designated to perform the duties lately performed by prosecutor, such officer being designated by another title. Ho salary was fixed, but the budget for this department contained an increased appropriation.

The case of Ziegler v. Hackensack, 113 N. J. L. 215; 174 Atl. Rep. 199; affirmed, 114 N. J. L. 186; 176 Atl. Rep. 324, indicates that an office held by an exempt fireman may be abolished in good faith and in the interests of economy, but such action is a fact question which must be proved and found by the reviewing body.

Quo warranto would seem to be the only possible remedy. Nickerson v. Wildwood, 111 N. J. L. 169; 168 Atl. Rep. 142. Prosecutor may institute quo warranto proceedings against Edward J. Lynott, who he says has assumed the duties of the office held by him under another designation.

The writ will be dismissed, without costs.


text:
    E. FRED OSTER, PROSECUTOR, v. THE MAYOR AND COMMON COUNCIL OF THE BOROUGH OF WESTWOOD, IN THE COUNTY OF BERGEN, ET AL., RESPONDENTS.
    Submitted May 17, 1935
    Decided September 11, 1935.

      Before Justices Parker, Case and Bodine.
    Por the prosecutor, Frank Pascarella.

    Por the respondents, Leland F. Ferry, George F. Losche and Louis A. Mounier, Jr.

   Bodine, J.

This writ of certiorari brings up for review a permit issued by the building inspector of the borough of Westwood upon the recommendation of the board of adjustment and the direction of the borough council to Harry Blauvelt for the erection of a public garage on premises on Third avenue in that borough. The premises are in a business zone but are within two hundred feet of a church, and the zoning ordinance forbids such a structure in such proximity to a church. Zoning Ordinance, section 9, subdivision e (2).

Under the Zoning act (Pamph. L. 1928, p. 701, § 9, subdiv. 3; Cum. Supp. Comp. Stat. 1925-1930, p. 1249, § *136-4200J(9) subdiv. 3), the board of adjustment has the ■following power: “To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so 'that the spirit of the ordinance shall be observed and substantial justice done; and provided, that no such variance shall be made to grant or allow a structure or use in a district restricted against such structure or use unless the lands in respect of which the variance is made abut a district in which such structure or use is authorized by the zoning ordinance; and provided, further, that no such structure or use shall be allowed more than one hundred and fifty (150) feet beyond the boundary line of the district in which such structure or use is authorized by the zoning ordinance.”

The building permit was for a modern one-story fireproof building to take the place of an unsightly wooden one. The trustees of the church made no objection, and but for the prohibition of the ordinance itself the action taken would have been within the sound discretion of the board.

The permit must, however, be set aside because there is nothing in the statute or the ordinance which permits the board to violate the specific instructions of the ordinance that no part of a garage shall be within two hundred feet of a church. Like ordinances have been held to be made in the exercise of a sound public policy and the grant of the permit held contrary to the public interest as declared by the governing body. State, Hartman v. Bigelow, 5 N. J. Mis. R. 227; 136 Atl. Rep. 201.


text:
    JAMES HARRAN, PROSECUTOR, v. FORD MOTOR COMPANY, DEFENDANT.
    Argued October 1, 1935
    Decided October 15, 1935.
    Before Justices Parker, Case and Bobine.
    For the prosecutor, Harold Krieger.

    For the defendant, Herbert R. Baer.

   Per Curiam.

At the argument, the judges were clearly of opinion that the judgment of the Common Pleas affirming the finding for defendant in the bureau should be in turn affirmed; but counsel for prosecutor asked, and was allowed time to submit a reply brief, which was duly received and has been duly considered, without working any change in the original view taken by the court.

The judgment of the pleas is therefore affirmed, with costs.


text:
    JULIA PLASKON SIBERRY, PROSECUTOR, v. NATIONAL SULPHUR COMPANY, DEFENDANT.
    Argued October 3, 1935
    Decided October 17, 1935.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the prosecutor, John A. Laird.

    For- the defendant, John J. Francis.

   Per Curiam.

The rule to show cause is discharged for the sole reason that the court is of opinion that the statutory appeal to the Court of Common Pleas should be first pursued.


author: Pee Curiam.

text:
    PUBLIC SERVICE ELECTRIC AND GAS COMPANY, PROSECUTOR, v. CITY OF CAMDEN AND CHARLES F. WISE, COUNTY CLERK, DEFENDANTS.
    Decided October 16, 1935.
    Before Justices Trenchard, Heher and Perskie.

      For the prosecutor, William H. Speer.

    For the defendants, E. G. 0. Bleakly.

   Pee Curiam.

Counsel for the defendants conceded, on the argument, that the questions raised are fairly debatable, and that, in such a situation, a writ of certiorari should issue. He urged, however, that the writ should not operate to prevent the submission, at the ensuing general election, of the question embodied in the resolution under attack, i. e., the construction by the defendant municipality of an electric light, heat and power plant, as provided in the resolution.

We agree that the writ should not be permitted to interfere with the submission of the question at the coming election. The prosecutor will not be concluded on any of the questions raised by an adverse result at the polls. The allocatur will be conditioned accordingly.


text:
    VILLAGE OF RIDGEWOOD, A MUNICIPAL CORPORATION, RELATOR, v. EDWARD HOPPER, INSPECTOR OF BUILDINGS OF THE BOROUGH OF GLEN ROCK, DEFENDANT. THE BOROUGH OF GLEN ROCK, A MUNICIPAL CORPORATION, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY AND THE VILLAGE OF RIDGEWOOD, A MUNICIPAL CORPORATION, DEFENDANTS.
    Argued May 9, 1935
    Decided October 16, 1935.

      Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the relator, village of Ridgewood, Thomas L. Zimmerman, J r.

    For the defendant Edward Hopper and the prosecutor, the borough of Glen Rock, Maclcay <& Maclcay (Howard Maclcay, of counsel).
    For the defendant board of public utility commissioners, John A. Bernhard.

   Per Curiam.

These two cases, because they are inter-related, will be considered together.

In .the first case (Village of Ridgewood v. Edward Hopper, &c.,) the relator has been granted a rule to show cause why mandamus should not issue, commanding Mr. Hopper, the building inspector of Glen Rock, to file the plans and specifications presented to him by the relator, village, of Ridgewood, and to issue a permit to the relator for the enlargement of its-existing sewage disposal plant, which is located within the territorial limits of the borough of Glen Rock.

It appears that Ridgewood built its sewage disposal plant in Glen Rock in 1905; that it enlarged the plant in 1925; that in October, 1933, the Passaic valley sewage commission notified the village that its plant in Glen Rock was inadequate to properly dispose of the amount of sewage coming into the plant and that raw sewage was finding its way into Hohokus brook which resulted in the pollution of that stream, which is a tributary to the Passaic river; that the village of Ridge-wood prepared plans for the enlargement of the existing plant, which is located on certain of the marsh lands in the outskirts of Glen Rock; that the plans were approved by the Passaic valley sewer commission. The relator then filed a petition with the board of public utility commissioners of New Jersey and after hearing thereon the board determined that the enlargement of the sewage disposal plant was reasonably necessary for the “service, convenience and welfare of the public.”

The borough of Glen Bock did not file an answer to the said petition before the board of public utility commissioners but objected to the jurisdiction of the board, contending that the village of Bidgewood, before it might enlarge said plant, was obliged to obtain the permission of the governing body of Glen Bock and the health board of that municipality, relying on the provisions of article XXI of the Home Buie act, section 1, chapter 152, Pamph. L. 1917, p. 397. Cum. Supp. Comp. Stat. 1911-1924, p. 2213, § *136-2101. But we think that this provision was intended to apply to new structures of the character mentioned in the statute (supra) and not to the extension or enlargement of existing structures. See North Jersey Utilization and Sewage Disposal Plant v. Van Buskirk et al., 96 N. J. L. 546; 115 Atl. Rep. 215.

At all events, when the village of Bidgewood presented its plans and specifications for the enlargement of the disposal plant to the borough of Glen Bock, the building inspector refused to issue the building permit for the reasons stated above, viz., that it was not accompanied by the approval of the health board of the borough of Glen Bock and for the further reason that in the year 1929 the borough had passed a zoning ordinance which classifies the area in which the disposal plant is located, as zoned for residential purposes.

At the hearing before the public utility commission evidence was adduced that the enlargement of the plant was a public necessity and it was on this point that the board passed. A writ of certiorari was allowed to review the determination of the board of public utility commissioners that the enlargement was necessary for the service, convenience and welfare of the public, and this constitutes the second case (Glen Bock v. Public Utility Commissioners, &c.). The depositions disclose that the village of Bidgewood made no application to the governing body or to the health board of Glen Bock for a permit to enlarge its sewage facilities; that Bidgewood had ample lands of its own, suitable for disposal plant purposes, and. also that when certain areas in the village of Eidgewood shall have been developed these areas will not have sufficient sewage facilities under the present enlargement plans of the village of Eidgewood.

All of this testimony, taken under the writ of certiorari and made part of the return is, in our judgment, beside the issue because the operation of a disposal plant by a municipality is not a “public utility” within the meaning of the statute (Pamph. L. 1911, ch. 195; Pamph. L. 1921, ch. 149; Cum. Supp. Comp. Stat. 1911-1924, p. 2880, § *167-14; Pamph. L. 1926, ch. 146; Cum. Supp. Comp. Stat. 1925-1930, p. 1487, § *167-14), and consequently the board of public utility commissioners was without jurisdiction. It follows therefore that the application to and hearing before the utility board was unnecessary and its determination nugatory. As to this matter therefore the prosecutor of the writ of certiorari must prevail, but it does not help the prosecutor on the meritorious question as to the right of the village of Eidgewood to enlarge the disposal plant. As we read the statute, which we think controlling, viz., article XXI of the Home Eule act (supra), we conclude that the first section of that article is not applicable to a situation like the one in hand but applies only where a municipality desires to build a new plant of the character here involved, outside its own limits, where before there was none. We likewise conclude that by the provisions of the fourth section of the same article (XXI) (Cum. Supp. Comp. Stat. 1911-1924, p. 2214, § *136-2104), which is as follows:

■ “4. Every municipality shall have full power, from time to time, to enlarge, increase, extend, renew, alter, replace, repair, cleanse, equip, operate and maintain any and all sewers, drains and other works or structures above mentioned, which may be owned or controlled by such municipality,” the relator was entitled to enlarge its existing facility without the permission of the municipal body of Glen Eock.

We conclude therefore that a peremptory writ of mandamus should be awarded the relator, village of Eidgewood, to compel the issuance of a building permit for the extension or enlargement of its sewage disposal plant. We will, however, consider that the relator had been awarded an alternative writ of mandamus in the first instance instead of a rule to show canse, in order that upon the award of our peremptory writ the pleadings thus fashioned may enable the defendant, borough of Glen Rock, to appeal to the Court of Errors and Appeals if it so desires.

On certiorari, judgment for prosecutor without costs.

On application for mandamus, judgment for relator without costs.


text:
    ROSE DORNBUSCH, AND THE BORJAN REALTY CORPORATION, A CORPORATION OF NEW JERSEY, PROSECUTORS, v. BOARD OF ADJUSTMENT OF THE CITY OF NEWARK, RESPONDENT.
    Submitted May 17, 1935
    Decided September 11, 1935.
    Before J ustices Parker, Case and Bohene.
    For the prosecutors, Samuel Rosenthal.

    For the respondent, Jules Tepper.

   Bodine, J.

The board of adjustment revoked a permit duly issued by the superintendent of buildings of the city of Newark for an automobile laundry at 793 Sanford avenue. The zoning ordinance forbids a public garage in this neighborhood, it being a first business zone. Apparently any accessory garage can be conducted in such district. It may be that the restriction is arbitrary and bears no relation to public health, safety, morals and general welfare, but we do not have to so decide.

Sanford avenue is a main thoroughfare and automobile traffic is heavy. It seems to be ideally located for gasoline filling stations because there are six stations in three blocks. The proposed site of the auto laundry adjoins a filling station and another is immediately across Sanford avenue. On the other side of Mt. Vernon place is an apartment house which accounts for the original objection, later voluntarily withdrawn before the board of adjustment revoked the permit.

After the superintendent of buildings issued the permit for the laundry, the work was substantially completed before an appeal was taken to the board.

It seems to us that the business of washing cars, as conducted in the kind of automobile laundry shown in the proofs and plans, is really an automobile accessory business. The exclusion of an automobile washing equipment in a neighborhood • so largely devoted to the sale of gasoline and the servicing of cars and batteries was arbitrary and unjustified.

The revocation of the permit will be set aside, with costs to be taxed.


author: Botone, J.

text:
    WALTER BROOKES, WILLIAM C. CALMAR, JOSEPH M. HEALEY, WILLIAM HOWATT AND FRANCIS A. CASSIN, PROSECUTORS, v. ARTHUR H. JONES, MAYOR OF THE TOWN OF KEARNY, NEW JERSEY, DEFENDANT.
    Argued May 17, 1935
    Decided September 11, 1935.
    Before Justices Pakkek, Case and Bodife.
    Por the prosecutors, Thomas 0. Wallcer.

    Por the defendant, John E. Cooper.

   Botone, J.

Prosecutor challenges the veto power of the mayor of the town of Kearny. The town was incorporated under the Town act of 1895, a general act entitled: "An act providing for the formation, establishment and government of towns.” Pamph. L., p. 218; 4 Comp. Stat., p. 5518, §§ 317 et seq. By supplement (Pamph. L. 1905, p. 310; 4 Comp. Stat., p. 5520, § 326), the councilman-at-large was to be designated mayor. In 1907 (Pamph. L., p. 121; 4 Comp. Stat., p. 5426, §§ 36, 37), a statute was enacted entitled "An act to provide for the election in incorporated towns of this state of a councilman-at-large, to be called mayor, and to regulate his duties and terms of office.” Under this act the mayor was given a two years’ term. By supplement of 1932, page 27 (N. J. Stat. Annual. 1932, § 215-37a), the mayor was given veto powers. The act of 1907, was held a general act affecting each of the incorporated towns in the state. Herrmann v. Guttenberg, 87 N. J. L. 261; 93 Atl. Rep. 889. See, also, Boonton v. Logan, 86 N. J. L. 486; 92 Atl. Rep. 97.

There is nothing of a restrictive nature in the 1932 supplement which could limit its scope. Winne v. Cassale, 99 N. J. L. 345; 123 Atl. Rep. 533; 100 N. J. L. 291; 126 Atl. Rep. 324. It is a general act, if there ever was one, and the legislative purpose seems clear to vest in all town mayors the veto power.

In Bauer v. West Hoboken, 90 N. J. L. 1; 100 Atl. Rep. 223, it was held that the powers granted under the Town act could be enlarged by legislation entitled “An act to authorize any incorporated town,” &e. By the same token it would seem that the powers of the mayor of an incorporated town could be enlarged by similar entitlement.

We can see no objection that the mayor has both a vote and a veto. He can perform different services, and after all the only limits upon the legislative power to control the affairs of a municipality are to be found in the constitution.

The writ will be dismissed.


author: Lloyd, J.

text:
    FREDERICK von NIEDA, PROSECUTOR, v. HAROLD W. BENNETT, GEORGE E. BRUNNER, FRANK J. HARTMAN, Jr., MARY WALSH KOBUS AND FREDERICK von NIEDA, BOARD OF COMMISSIONERS OF THE CITY OF CAMDEN, AND THE CITY OF CAMDEN, DEFENDANTS.
    Decided August 30, 1935.
    For the prosecutor, S. Busting Leap.

    For the defendants, Grover O. Bichman and Carl Kisselman.

   Lloyd, J.

Two resolutions are presented under these rules to show cause. One of them purporting to select Mr. George E. Brunner, a member of the board of commissioners of the city of Camden, to preside at the meetings of the board, and designating him as mayor of the city of Camden and head of the department of parks and public property; the other designating Mrs. Mary Walsh Kobus, a member of the board of commissioners, as the director of public safety.

At the organization of the board of commissioners as then constituted in May, 1935, Mr. Frederick von Nieda was designated as majror of the city to preside over the board meetings and assigned to the department of public safety. Thereafter at a special meeting of the commissioners on August 1st, 1935 (a change by and through a recount having resulted in a change in the membership of the board) the resolutions above recited were passed.

Upon petition, rules to show cause why these resolutions should not be certiorated into the Supreme Court for deter-ruination of their legality were granted by me and made returnable on August 26th. In pursuance of these rules depositions have been taken and from them the foregoing facts appear.

In considering the first resolution it is only necessary to say that in the case of Woolley v. Flock, 92 N. J. L. 65; 105 Atl. Rep. 489, the Supreme Court held that the selection of a mayor under the Walsh act once designated could not be altered in the lifetime of the board, four years next following their taking office. The result is that the selection of Mr. von Nieda was irrevocable and the writ of certiorari to review the action of the board in attempting to displace him must be awarded.

As to the second resolution, the Walsh act (Pamph. L. 1911, p. 462 (Cum. Supp. Comp. Stat. 1911-1924, pp. 2457 et seq., §§ **136-1 et seq.; Cum. Supp. Comp. Stat. 1925-1930, pp. 1270 et seq., §§ **136-8 et seq.) (as amended) in section 4 (Cum. Supp. Comp. Stat. 1925-1930, p. 1270, § **136-8) provides that the mayor may be designated to be director of such department as a majority of the members of said commission shall in their judgment determine, and that the board shall determine the powers and duties to be performed by the several departments. It further provides that the commissioners shall at the first regular meeting designate by majority vote one commissioner to bo director of the department of public affairs, one to he director of the department of revenue and finance, one to be director of public safety, one to be director of the department of public works, and one to be director of public parks and property, and that such designation may be changed whenever it appears that the public service would he benefited thereby.

Tt is contended that the designation of the mayor to be director of a department is as final as that of his selection as mayor, and that the language authorizing changes of directors from time to time applies only to the remaining four members of the commission, but it seems to me the legislation on the subject can by no possibility be given such construction. Originally the statute in terms declared the mayor to be the director of public safety. Subsequently he was placed in the same category as the other members of the commission and the department to which he should be assigned rested in the hands of the commissioners. By the fourth section the commissioners are authorized to designate the mayor to such department as they may. determine, and in the next paragraph of the same section are required at their first regular meeting to allot the whole five departments, and this of course includes the mayor. When, therefore, at its conclusion the section authorizes such changes in assignments as the public interest may require it of necessity included the assignment made to the mayor as well as to the remaining members. Mrs. Kobus was assigned to the department of public safety in place of Mr. von Nieda. It was within the power vested in the board by the statute, and as to the resolution effecting that result the writ of certiorari must be denied.