author: Smith, Joseph L, 0. C. J.

text:
    Essex County Circuit Court.
    HERMAN Z. BAUM AND RUTH SILVER, PLAINTIFFS, v. CHARLES A. TAZWELL, HATTIE WASHINGTON AND LEE MORRIS, DEFENDANTS.
    Decided August 13, 1948.

      For the plaintiffs, Philip Mandelbaum and David Weinick.

    For the defendants, Abram A. Golden.

   Smith, Joseph L, 0. C. J.

The plaintiffs herein have instituted an ejectment action seeking possession of the entire house known as No. 13 Spring Street in the City of Newark. The complaint is in the statutory form and alleges that the plaintiffs’ right of possession accrued on June 1st, 1948. The defendants have filed an answer containing a general denial and four separate defenses. The first separate defense alleges that the defendants are sub-tenants of the tenant, George Teamer, who held a month-to-month tenancy on the property in question. The said George Teamer died on the 24th day of May, 1948. The second separate defense alleges that these defendants are entitled to the protection afforded to tenants under the Housing and Bent Control Act of 1948, 50 U. S. C. A. Appendix, §§ 1881, et seq. The third separate defense Challenges the jurisdiction of the court and the fourth separate defense challenges the constitutionality of R. S. 2:51-25, N. J. S. A.

The plaintiffs move to strike the answer as sham in part and insufficient in law in part. The affidavit relied on by the plaintiffs admits that George Teamer was a month-to-month tenant but states that the said George Teamer on or about May 10th, 1948, gave written notice of the termination of his tenancy on or before May 31st, 1948. A copy of the notice is attached to the affidavit and the affidavit further says that the said notice was accepted by the plaintiffs. Tile affidavit further sets forth the death of George Teamer on May 24th, 1948, and says that these defendants occupy the premises without the consent or permission of the plaintiffs and that they are trespassers, in that at no time was there any relationship of landlord and tenant between the plaintiffs and defendants.

The answering affidavit made by one of the defendants admits that the defendants are in possession of the premises. It states that the defendants were sub-tenants of George Teamer during his lifetime. The court desires tó point out that this affidavit is replete with hearsay and contains conclusions of law and irrelevant matter all of which the court cannot take into consideration. Kelly v. Weiner (Supreme Court, 1923), 1 N. J. Mis. R. 338; Bougless v. Thomas (Supreme Court, 1923), 1 Id. 581.

The general rule of law is that the death of a party does not terminate a lease. A statement of the rule is contained in 51 C. J. S., Landlord and Tenant 659, § 92, as follows: "In the absence of a covenant otherwise providing, as-a gen.eral rule a lease is not terminated by the death of the lessor or the lessee.” That this rule prevails in this state is clear. In Levigton v. Tuly (Court of Chancery, 1940), 126 N. J. Eq. 552; 10 Atl. Rep. (2d) 641, Vice-Chancellor Bigelow, 126 N. J. Eq. (at p. 553); 10 Atl. Rep. (2d) (at p. 642), said: “A tenancy from month to month is not terminated by the death of t!he tenant but his interest therein passes to his executor or administrator.” This rule was also stated in Dorfman v. Barnett (Circuit Court, 1946), 24 N. J. Mis. R. 212; 48 Atl. Rep. (2d) 217, but was held inapplicable because the written contract evinced the intention to limit the occupancy to the lessee. In that case Mr. Justice Burling, then a Circuit Court Judge, 24 N. J. Mis. R. (at p. 218); 48 Atl. Rep. (2d) (at p. 218), said: “The.fact of the lessee’s death has created the issue in this controversy and requires the construction of the lease. Although a tenancy from month to month is not terminated by the death of the tenant and his interest passes to his administrator, Levigton v. Tuly, supra, still the contract of the parties makes this rule inapplicable. In the written lease and contract of the parties emphasis was laid upon the character of the occupancy. Prom the standpoint of the landlord, a meticulous evaluation of the lessee was carefully exhibited in the lease. Throughout the entire contract is evinced the intention to limit the occupancy to the lessee.”

Likewise distinguishable are the cases of Brigham v. Kidder (Court of Errors and Appeals, 1923), 99 N. J. L. 79; 122 Atl. Rep. 740, and Capdeville v. Robins (Circuit Court, 1932), 10 N. J. Mis. R. 349; 159 Atl. Rep. 614. In the former it was held that the lease was incident to the deceased’s law business and entirely personal, hence it perished upon the death oí the tenant. Chancellor Walker, 99 N. J. L. (at p. 80) ; 122 Atl. Rep. (at p. 740), said: “The contract did not survive to his personal representative as he could not practice law in the deceased’s place. * * * This case is controlled by our decision last term in Brauer v. Hyman, 98 N. J. L. 743; 121 Atl. Rep. 667, wherein we held that there was an implied covenant in a contract to the effect that if performance became impossible by reason of the perishing of the business itself without fault of the party sought to be charged, no recovery could he had under it.” In the latter case the lease fell upon the death of the lessor, a paralytic, where part of the rent was a duty to care for the lessor by the lessee. ,

It is clear in the instant case that the death of the tenant without more did not operate to terminate the month to month tenancy. It is also the well settled law in this state that assignment and sub-letting are naturally incident to a leasehold estate, and are not to be restricted unless by express stipulation to that effect. Farmer v. Davies (Court of Errors and Appeals, 1922), 97 N. J. L. 309; 116 Atl. Rep. 706; Simpson v. Moorhead (Court of Chancery, 1904), 65 N. J. Eq. 623; 56 Atl. Rep. 887; Braunstein v. McGrory Corp. (Court of Errors and Appeals, 1922), 93 N. J. Eq. 419; 116 Atl. Rep. 707; Field v. Mills (Supreme Court, 1869), 33 N. J. L. 254. A sub-letting creates the relationship of landlord and tenant between the tenant and the sub-tenant but there is no privity of contract between a landlord and a subtenant. Anything which defeats the tenants’ estate will destroy the sub-tenants’ estate. Cifelli v. Santamaria (Supreme Court, 1910), 79 N. J. L. 356; 15 Atl. Rep. 434; D’Agostino v. Sheppard (Court of Errors and Appeals, 1925), 102 N. J. L. 154; 130 Atl. Rep. 520. However, this court must take judicial notice of the provisions of the Federal Housing and Bent Control Act of 1948. In view of this act the question arises as to the right of sub-tenants to remain in possession even in the event that the leasehold of the sub-lessor has been terminated. This court has not found any reported cases wherein the above question has been decided in New Jersey. A partial discussion of the question is contained in the case of Shaw v. Creedon (Court of Chancery, 1943), 133 N. J. Eq. 397; 32 Atl. Rep. (2d) 721, wherein Vice-Chancellor Woodruff, 133 N. J. Eq. (at p. 400); 32 Atl. Rep. (2d) (at p. 723) , said: "At common law a surrender of his term by a lessee and its acceptance by the lessor merged the lesser term into the greater.” So, it was held that, while a sub-tenant was not deprived of his right to use the property demised to him, neither the lessor nor the lessee could maintain an action against him for rent. Webb v. Russell, 3 T. R. 393; 100 Eng. Report 639. In McDonald v. May, 96 Mo. App. 236; 69 S. W. Rep. 1059, 1061, the court said: "The surrender of the. main term of a leasehold estate totally extinguishes it and with it any subterms; or rather, would extinguish any subterm as a necessary result of the extinction of the main term, but for another rule of law which has been raised for the protection of under-tenants, to wit: that their rights will not be destroyed or impaired by a surrender of the main lease; and yet, the surrenderee may not sue the under-tenant for rent or on any other covenant. This rule is both ancient and technical, but has been laid down by all text writers, and followed in all old judgments on the subject.” The reason assigned for the latter rule protecting the sub-tenant is that by the sub-lease the sub-lessee acquires an estate in the land which cannot be defeated by any act or omission of the sub-lessor that does not derogate from, the rights of the original lessor; therefore, after sub-letting, the original lessee cannot affect the interest of the sub-lessee by a surrender to the original lessor. One of the arguments advanced by counsel for the plaintiff herein is that the landlord would have no right to enforce payment of rent from the sub-tenants. In the case of Shaw v. Creedon, supra, Vice-Chancellor Woodruff, 133 N. J. Eq. (at p. 401); 32 Atl. Rep. (2d) (at p. 724) , said: "Vice-Chancellor Baches also cited other authorities and called attention to the fact that a landlord in New Jersey had the right of re-entry upon a tenant’s default in the payment of rent, and, upon execution of a judgment, to dispossess the tenant with the result that the sub-tenant also suffers eviction under the Landlord and Tenact Act. The Vice-Chancellor added: To protect himself against eviction, a sub-tenant may pay the rent due the landlord and discharge himself of his rent due the tenant.” At page 402 of 133 N. J. Eq., at page 724 of 32 Atl. Rep. (2d), Vice-Chancellor Woodruff further said: “In this connection and in the absence of direct precedents, it is helpful to consider the provisions of R. S. 2:58-4; N. J. S. A. 2:58-4. This act restored a landlord’s common law right to seize a subtenants’ goods in proportional satisfaction of his rent; it created an additional remedy, a lien by distress pro tanto, in aid, not in limitation, of his equitable right to the sub-tenant’s rent.” Therefore, it seems to this court that a landlord is amply protected in his right to collect rent from a sub-tenant. He may distrain on the sub-tenant’s goods which are on the premises, bring an action for eviction of both tenant and sub-tenant, and he may possibly seek the aid of our Court of Chancery. In 32 Am. Jur. 345, f 425, the rule is stated as follows: “The surrender of a lease by a lessee to his lessor, after a sublease, will not be permitted to operate so as to defeat the estate of the sublessee.” It is also necessary to consider the effect of the Housing and Eent Act of 1947 as amended by the Housing and Eent Act of 1948 in so far as the rights of sub-tenants are concerned with respect to housing accommodations. It is to be noted that these acts do not expressly include sub-tenants. In the case of 112 East 36th Street Holding Corp. v. Daffos (Supreme Court, N. Y., 1947), 190 Misc. 551; 75 N. Y. S. (2d) 639, the court (at p. 642) said: “The purpose and intendment of both the Federal Housing and Rent Act of 1947, effective July 1st, 1947 [50 U. S. C. A. Appendix, §§ 1881, et seq,~\, and its predecessor; the Emergency Price Control Act of 1942 [50 U. S. C. A. Appendix, §§ 901, et seq.], as implemented by the rent regulations promulgated pursuant thereto respectively, was, and is, to prevent the removal or eviction of persons from housing accommodations which they actually occupy so long as they continue to pay the rent to which the landlord is entitled by law, except under certain conditions not here involved.”

The- Housing and Eent Act of 1947 provides that: “Ho action or proceeding to recover possession of any controlled housing accommodations with respect to which a maximum rent is in effect under this title shall be maintainable by any landlord against any tenant in any court, notwithstanding the fact that the tenant has no lease or that his lease has expired, so long as the tenant continues to pay the rent to which the landlord is entitled.” 50 U. S. C. A. Appendix, § 1899. There are certain exceptions to this, none of which are pertinent to the instant ease. The defendants herein allege in their answer that they are entitled to the protection of section 204 (A) of the Housing and Eent Act of 1948 which amended section 209A of the 1947 act. The proper construction of this section is not on its face free from doubt. Paxson v. Smock (District Court, E. D. Pennsylvania, 1947), 73 Fed. Supp. 793. In Creedon v. Stratton (District Court, D. Nebraska, 1947), 74 Id. 170, Judge Delehant (at p. 182) said: “It must be remembered that in eviction cases the state courts possess the power and are under the duty to protect tenants in their federally guaranteed rights.”

Apparently our state courts have not had occasion to pass on the applicability of the Housing and Eent Acts of 1947 and 1948 but in this connection it is to be noted that our legislature enacted a law on July 22d, 1946, known as the “Rent Control Act.” This act was suspended by the Governor on July 30th, 1946. R. S. 2:58-32.16; N. J. S. A. 2:58-32.16, a part of the Eent Control Act contains certain definitions. Under paragraph (C) of this section a tenant is defined as “A lessee, sublessee, licensee, or other person entitled to the possession or to the use or occupancy of the whole or a part of any housing space.” This act, of course, is not controlling but is referred to as illuminative of the intent of our legislature.

It is the duty of the Court on this motion to determine whether an issue of fact has been presented and not to try the issue on affidavits. Barnes v. P. & D. Manufacturing Co. (Court of Errors and Appeals, 1936), 117 N. J. L. 156; 187 Atl. Rep. 186. In the instant case the affidavits raise an issue of fact as to the character of the possession of the defendants. The questions of law alluded to above depend for their determination in part on the factual questions and must await the timely presentment of proof and evidence relative thereto. The ruling of Mr. Justice Burling in Cross v. Margolis (Supreme Court, 1948), 136 N. J. L. 453; 56 Atl. Rep. (2d) 759, is equally applicable here. At page 455 of 136 N. J. L., 56 Atl. Rep. (2d) 760, Mr. Justice'Burling said: “The legal points that have been raised with respect to the alleged agreement are not presently susceptible of determination until the entire facts are more fully elicited as a result of direct and cross-examination of the witnesses.” This court recently had occasion to rule on a motion to strike the complaint in an ejectment action in DeStefano v. D’Allesandro, 26 N. J. Mis. R. 176; 58 Atl. Rep. (2d) 548, wherein this court refused to grant the motion because of the legal dispute involved. It is equally desirable on this motion to have the proofs, evidence, and facts fully developed by trial evidence so that the legal rules may be more intelligently considered and applied.

While I feel that this motion to strike the answer must be denied on the merits, I am also mindful of the fact that the intendment of our Federal Housing and Rent Control Act ■and the public policy of our legislature as expressed in the now suspended Rent Control Act must bo given serious consideration. If this court were to hold that sub-tenants had no rights to continue their possession of housing accommodations upon the termination of the lessee’s estate, the practical effect would be to nullify the provisions of the Federal Housing and Rent Control Act.

The motion to strike the answer is denied. Counsel may ■present an appropriate order and place case on commercial calendar.


source: Caselaw Access Project

author: Fuiop, D. C. J.

license: Public Domain

text:
    District Court of the Second Judicial District of the County of Union.
    CARMINE CICCHINO, LANDLORD, v. SAM BIARSKY, TENANT.
    Decided September 1, 1948.

      For the landlord, Joseph L. Kaplan.

    For the tenant, Rolinson & Morris.

   Fuiop, D. C. J.

This is a suit by a landlord to obtain possession of a six-room apartment and part of the basement in a two-family house at 315 Conklin Avenue, Hillside, New Jersey. The tenancy is from month to month, terminated by a two months’ notice to a rent day. The landlord seeks to obtain possession of the premises for the use of a foster daughter who is living with him and is about to be married.

The foster daughter is known as Louise Eainone Cicchino, although her father’s name is Carmine Eainone. Her mother died in 1933 when Louise was four years of age and she has lived with Carmine Cicchino, the landlord, as a member of his household ever since. Cicchino has acted as parent to Louise in all respects during the intervening sixteen years.

The tenant contends that Louise is not a member of Cicchino’s immediate family and that the landlord is therefore not permitted to recapture the apartment for her use under the provisions of section 309 (a) (3) of the Housing and Rent Act of 1948, P. L. 464, 80th Congress, chapter 161—2nd session, 50 U. S. C. A. Appendix, § 1899(a) (3), which provides in part as follows:

“No action or proceeding to recover possession of any controlled housing accommodations with respect to which a maximum rent is in effect under this title shall be maintainable by any landlord against any tenant in any court, notwithstanding the fact that the tenant has no lease or that his lease has expired, so long as the tenant continúes to pay the rent to which the landlord is entitled unless * * *”

“(2) the landlord seeks in good faith to recover possession of such housing accommodations for his immediate and personal use and occupancy as housing accommodations, or for the immediate and personal use and occupancy as housing accommodations by a member or members of his immediate family, * *

Counsel for the tenant quotes the report of the joint committee of Congress which formulated this legislation, as giving the following definition of the words “immediate family”:

“Spouse, father, mother, son, daughter, brother, sister,, grandfather, grandmother, great-grandmother, great-grandfather, grandson, granddaughter, son-in-law, daughter-in-law,.. brother-in-law, sister-in-law, father-in-law, mother-in-law.”

It is said that this definition is binding upon this court. Chief Justice Case in Flagg v. Johansen (Supreme Court, 1940), 124 N. J. L. 456; 12 Atl. Rep. (2d) 374, 376, held that:

“The imputed intent of any single member or even of a. minority bloc, of the legislature has no significance in judicial construction.”

He quoted with approval from the opinion of Chancellor Zabriskie in Keyport Steamboat Co. v. Farmers Transportation, 18 N. J. Eq. 13, 24, as follows:

“The intention of the draftsman of an act, or the individual members of the legislature who voted for and passed it, if not properly expressed in the act, it is admitted, has nothing to do with its construction; the only just rule of construction, especially among a free people, is the meaning of the law as expressed to those to whom it is prescribed, and who are to be governed by it. If the legislator who enacted the law- should afterwards be the judge who expounds it, his own intention, which he had not skill to express, ought not to govern.”

Chief Justice Beasley in Sooy ads. State, 38 N. J. L. 324, held:

“In construing laws, the court is bound by legal rules, and in order to discover legislative intent, we must look to the statutory language alone, in its application to its subject. We can not go for such purpose to the journals or debates-of the legislature, nor to our own memory; the statute must speak for itself, and we cannot add a syllable to what it speaks.”

It appears, therefore, that the report of the Congressional! committee is not binding, although—

“In the construction of a statute, it is not amiss to ascertain the prevailing climate of the legislative opinion at the1 time of its enactment and to accord it some deference.” V. C. Jayne in Havens v. Mohme Aero Engineering Corp. (1944), 135 N. J. Eq. 386 (at p. 396); 39 Atl. Rep. (2d) 108, 115.

“Family” has many definitions. Among others, the Merriam Webster gives the following:

“The body of persons who live in one house, and under one' head or manager; a household, including parents, children, and servants, and as the case may be, lodgers or boarders: $ $ iji

Also:

“A group composing immediate kindred, esp., the group formed of parents and children, constituting the fundamental social unit in civilized societies.”

Neither of those definitions seems wholly adequate. We must look to the avowed purpose of the statute. The original regulation was under the Emergency Price Control Act of 1943, 50 U. S. C. A. Appendix, §§ 901, et seq. The declared purpose was “to stabilize prices and to prevent speculative,, unwarranted, and abnormal increases in prices and rents; to eliminate and prevent profiteering, * * *.” The Price

Control Extension Act of 1946 and the Housing and Pent Act of 1947, reaffirm these purposes, but, in 1947, the Congress indicated a desire to terminate the controls as rapidly as possible. Sections 301 (a) and (b), 50 U. S. C. A. Appendix, §§ 1891 (a, b).

The 1947 statute allowed eviction only for personal occupancy by the landlord. By the 1948 amendment, the field was broadened as above quoted.

The trend of Congressional intent is toward less regulation. The purpose of regulation is to prevent rent’ gouging. The limitation upon the free use of propety by the owner is justified only by the emergency and only to the extent necessary to prevent excessive profiteering and chaos.

The Fifth Amendment to the Constitution of the United States provides: “nor shall private property be taken for public use without just compensation.”

If the language of the statute permits, then it must be so-construed as to allow the owner of property to do what he will with his property, subject only to such restrictions as are essential to prevent the evil which the act seeks to prevent.

The definition of members of the immediate family taken from the report of the Congressional committee includes six “in-laws.” A daughter-in-law is, by definiton, not related by blood to her father-in-law. Apparently blood relationship is not necessary to create membership in the immediate family.

Neither is legal relationship necessary. A daughter or son-in-law has no legal relationship to the parent of his or her spouse. Neither inherits property from the other in case of intestacy. There is no legal duty to support.

It is interesting to note, although perhaps not relevant, that the ancient custom of fostering in Ireland “was held to be a stronger alliance than blood, and the foster children participated in the fortunes of their foster fathers.” Black’s Law Dictionary (2d ed.).

Webster’s New International Dictionary (1922) defines:

“foster mother or father—a woman or man who has performed the duties of a parent to the child of another by rearing the child as own child.”

And

“foster child * * * one who has received the care of a foster parent.”

“foster brothers or sisters—those reared as children in the same family, or nursed at the same breast, but not of the same parentage.”

It is not necessary, for the purposes of this case, that an all inclusive definition of immediate family be formulated. It is sufficient to determine that a foster child reared from infancy to womanhood by the foster parent in his home and still a member of his household, is a member of his immediate family within the meaning and intent of the statute.

In the argument, the foster child was referred to by both sides as the niece of the' landlord. However, no proof of such relationship has been offered.

No other question as to the right of the landlord to possession has been raised in the ease and no other point is therefore decided.

Judgment for possession may be entered. In the event that the tenant desires to review this judgment, the issuance of the warrant will be withheld during the proceedings to review, provided they are immediately instituted and diligently prosecuted. If no review is sought or obtained, the parties may present their views as to the date for the issuance of the warrant either in writing or on any court day on notice.


author: Davidson, C. C. J.

text:
    GUSTAVE HOLLASCH, JOHN KLEIN AND JOHN VAN KERSEN, SUING SEPARATELY; WERNER ZIMMERMAN, ZIGMUNT JANUSEWSKI, CARL McGHEE AND ANTHONY ANDREYK, AS EMPLOYEES OF MOUNTAIN ICE COMPANY, PLAINTIFFS, v. MOUNTAIN ICE COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Decided June 29, 1948.
    For the plaintiffs, Archibald Kreiger.

    For the defendant, Nugent & Bollenhagen.

   Davidson, C. C. J.

These actions, tried by the court in accordance with stipulation of counsel, are brought under the Fair Labor Standards Act, 29 U. S. C. A., §§ 201, et seq., to recover unpaid overtime compensation, liquidated damages, attorneys’ fees and costs. The substantial facts are not in dispute and a narrow issue is presented for determination.

Plaintiffs as employees of defendant, were engaged in the manufacture of ice, which was picked up at the Clifton, New Jersey, plant by trucks of the purchaser and delivered to Botany Mills, Inc., Passaic, New Jersey, a large woolen mill with a payroll of some 5,000 persons, admittedly engaged in the production of goods for commerce within the meaning of the act.

The ice was actually used by Botany, the consumer, to a small extent and for a limited period of time, in water coolers throughout the plant, but primarily for refrigeration of soft drinks in the mill cafeteria and to chill soft drinks carried in food trucks sent through the mill at intervals during the working day. The question to be resolved is whether coverage of the act properly extends to plaintiffs by reason of their employment in the manufacture of the ice so used by Botany..

The pertinent portion of the act extends coverage to employees “engaged in the production of goods if such employee-was employed in producing, manufacturing, mining, handling* transporting, or in any other manner working on such goods* or in any process or occupation necessary to the production thereof in any state.”

The purpose of the act was to eradicate from interstate commerce the evils attendant upon low wages and long hours of service. Being remedial, and having a humanitarian purpose in view, the act is broad and comprehensive and is to be liberally construed in respect of coverage. Joseph v. Ray, 139 Fed. Rep. (2d) 409.

It was held in McComb v. Super-A Fertilizer Works, Inc., 165 Fed. Rep. (2d) 824, decided by the United States Circuit Court of Appeals on January 27th, 1948, that:

“As used in Sec. 3 (j) the word ‘necessary’ cannot be defined with mathematical precision and definiteness. Whether the work of any particular employee is so closely connected with the process of production for commerce as to make his-occupation necessary to the production of goods for commerce' Is a matter of degree. The work must have such a close and immediate tie with the process of production as to be an essential part of it, and to determine whether an occupation is necessary calls for the exercise of that common-sense judgment which the law applies in problems of causation. Kirschbaum Co. v. Walling, supra; Davila v. Porto Rico Railway Light and Power Co., 143 Fed. Rep. (2d) 236 (C. C. A. 1st, 1944). The meaning of ^necessary’ should not be given an unwarranted rigidity in its application, but should be harmonized with its context and ‘no hard and fast rule may be transposed from one industry to another to say what is necessary “in the production of goods.” What is practically necessary to it will depend on its environment and position.’ Armour & Co. v. Wantock, 323 U. S. 126, 130; 65 S. Ct. 165, 167 (1944).”

hTo fixed and unyielding rulé has been blueprinted for determining in every case whether an employee is engaged in the production of goods for commerce, within the meaning of the act. Each case must depend upon its own facts. But there are certain general guides. It is not necessary that the employee come in actual physical contact with the goods produced. It is enough if his work constitutes an essential or useful part of an integrated effort by which goods are produced for commerce. It meets the requirements of the act if the work of the employee has such “close and immediate tie with the process of production for commerce” that it is in effect a part of it. The criterion is necessarily one of degree. Kirschbaum v. Walling, 316 U. S. 517; 62 S. Ct. 1116.

Examples of the application of the foregoing rules in specific instances are Kirschbaum v. Walling, supra, extending coverage to maintenance employees, such as elevator operators, electricians, carpenters, &c., in a loft building occupied by an interstate producer; Roland Electrical v. Walling, 326 U. S. 657; 66 S. Ct. 413, extending coverage to those engaged in repairing and servicing electric motors; Martino v. Michigan Window Cleaning Co., 327 U. S. 173; 66 S. Ct. 379, covering employees of a company engaged in cleaning windows of a building used for producing goods for commerce; Castaign v. Porto Pico American Sugar Refinery, 145 Fed. Rep. (2d) 403, covering laundresses employed to wash linen used by employees in a plant producing goods for commerce; Phillips v. Star Overall Dry Cleaning Co., 149 Fed. Rep. (2d) 416, covering laundry employees who supplied linen service to a plant whose employees used the garments while producing goods for commerce; Basick v. General Motors Corp., 311 Mich. 709; 19 N. W. Rep. (2d) 142, extending coverage to employees of a cafeteria located on the premises of an automobile factory serving meals to employees, in which ease the Supreme Court of Michigan held that those associated with the cafeteria were engaged in an occupation necessary to production for commerce because providing food to employees on the premises was the same as supplying fuel to boilers; and further holding that feeding employees conveniently and quickly and without their being required to leave the plant is an effective step in maintaining production.

In the present case the cafeteria for which ice was furnished was situated within Botany’s plant and operated by its own employees, not for the purpose of making a profit, but as part of the company’s facilities for maintaining constant and uninterrupted production, the average luncheon allowance being from fifteen minutes to half an hour. The food trucks sent through the plant made it unnecessary for workers to leave their machines, and thus substantially aided hi the overall effort of production.

Following the reasoning of the reported eases, my conclusion is that plaintiffs were engaged as part of an integrated effort, in a process or occupation necessary to the production of goods for commerce, within the meaning of the act. As this determination disposes of the issue for the entire periods covered in the several actions, it is unnecessary to pass upon the period during which ice was furnished Harmon Color Works for use in the actual manufacturing process of chemical products for commerce, although it is manifest that coverage extends for the comparatively brief time established in the evidence.

& * • * * * $ *

Postea may be submitted in accordance with these findings.


author: WARKE, J.

text:
    In re WOOD’S ESTATE.
    Atlantic County Orphans’ Court, New Jersey.
    June 28, 1946.

      Emory J. Kiess, of Atlantic City, for residuary legatees excepting the claimant.
    Lloyd, Horn & Perskie, of Atlantic City, for claimant Dorothy Dodson Holm.
    Murray Fredericks, of Atlantic City, for executor.
   WARKE, J.

Erma R. Wood died a resident of Atlantic County on June 14, 1944, leaving a will containing a residuary clause. The estate was duly administered, and after final accounting a petition was filed for a Decree of Distribution. Among those who might have participated in the distribution of the residuary fund was one James M. Dodson, at one time a lieutenant in the Air Force of the United States Army.

Lt. Dodson was on overseas duty and sometime late in July of 1943 left his army base on a bombing mission from which neither he nor any of the members of the crew of the plane in which he traveled ever returned. The body of one of the occupants of the plane was found sometime later on the seacoast. The last communication from Lt. Dodson received by his wife was dated July 25, 1943, and received by her on August 3,1943.

In this state of affairs the other residuary legatees claim that Lt. Dodson’s share of Mrs. Wood’s Estate should be awarded to them, on the ground that Lt. Dodson died in July of 1943 when he went on the bombing mission from which he never returned, thereby predeceasing the testatrix, Mrs. Wood, who died in June of 1944. On the other hand, his widow, who is also the administratrix of Lt. Dodson’s Estate by appointment by the Courts of Texas, his domicile, claims that she is entitled to have the share in question, on the ground that Lt. Dodson cannot be judicially determined to have died at the time of his disappearance, but must be presumed to have lived for one year after the date of his disappearance, or until July 27, 1944. Both claimants invoke Chapter 46 of the Laws of 1945, N.J.S.A., 2:101-1.1 et seq., the first paragraph of which provides:

“A written finding of presumed death, made by the Secretary of War, the Secretary of the Navy, the United States Maritime War Emergency Board, or other officer or employee of the United States authorized to make such finding, pursuant to the Federal Missing Persons Act, as now or hereafter amended, or a duly certified copy of such finding, shall be received in any court, office or other place in this State as presumptive evidence of the death of the person therein found to be dead, and the date, circumstances and place of his disappearance.”

Each of the claimants received a communication, presumably in response to their inquiries from the same officer, and the respective writings entitled: “Statement of the Death of James M. Dodson, First Lieutenant, Air Corps”, are in evidence. To the widow, the department wrote:

“The records of this office show that First Lieutenant James M. Dodson, Army Serial Number 0664877, Air Corps, who gave his date of birth as 30 July 1915, was reported missing in action 26 July 1943 in the European Area. Under the provisions of Public Law 490, 77th Congress, as amended, death is presumed to have occurred on 27 July 1944.”

To the attorney for the residuary legatees, the statement of the department reads:

“The records of this office show that First Lieutenant James M. Dodson, Army Serial Number 0664877, Air Corps, who gave his date of birth as 30 July 1915, was reported missing in action 26 July 1943 in the European Area, when the aircraft, on which he was a crew member, encountered enemy flak and disappeared while on a bombing mission to Hanover, Germany. Under the provisions of Public Law'490, 77th Congress, as amended, death is presumed to have occurred on 27 July 1944. These findings are based on a report received through the International Red Cross, stating that Lieutenant Elden F. Jenkins, 0735383, Co-pilot of the airplane was killed in action on 26 July 1943, the date he was previously reported missing in action, and that his remains were washed ashore near ‘Sophien Sommer Koog’, which has been identified as Sophien Koge on Nordstrand Island, a tiny island situated 54 degrees 30 minutes north, 8 degrees 45 minutes east, in Helgoland Bay, west of Schleswig-Holstein.”

At the very beginning of this consideration let it be pointed out that the N. J. Statute quoted in the beginning provides that the written finding of presumed death is received in this court as presumptive evidence first, of the death of the person therein found to be dead, and second the date, circumstances and place of his disappearance. Note that the act does not say that the certificate is presumptive evidence of the date of death, but only presumptive evidence of the date of his disappearance, and the circumstances of such disappearance. The act,, therefore, leaves to the court to determine the time of death.

It seems to me the difficulty with Mrs. Dodson’s claim is that she is invoking the Federal Missing Persons Act, 50 U.S.C.A.Appendix, § 1001 et seq., as being dispositive •of this New Jersey litigation, which it is not.

The Federal Law involved is part of the War Pay and Allowance Act, and provides, roughly, that when a person has disappeared, and has not been heard of for about 12 months, so far as the Missing Persons Act is concerned, the department head may order pay to be continued as if the subject were alive, or may make a finding of death, and the pay shall be continued or stopped according to such finding, provided that the officer may not determine death to have occurred within 12 months of the day of disappearance. The law was enacted altogether to enable the government to determine when the pay of a missing person should be stopped and his name taken from the payroll. Its provisions are not applicable to the situation before us.

The situation presents two questions to be determined by the law of New Jersey.

The first is: Is Lt. Dodson dead?

The second is: When did he die?

So far as the first question is concerned, all- that is before the court is the statements of death from the army official above quoted, and the act makes these receivable as presumptive evidence of Lt. Dodson’s death. A presumption is sometimes called a rule of evidence, or a substitute for evidence, but when there is nothing but a presumption before the court in any matter, the pending question is disposed of according to the direction of the presumption. There is therefore no hesitation in making a judicial finding that Lt. Dodson is dead.

The settlement of the second question viz. the time of Lt. Dodson’s death is also found by applying the statute quoted above, which provides that the statement of death furnished by the army shall be presumptive evidence of the date, circumstance and place of disappearance. The reading of the statements discloses the finding of the department so far as the time, place and circumstances of ■disappearance are concerned, is “26 July 1943 in the European area, when the aircraft on which he was a crew member, encountered enemy flak and disappeared while on a bombing mission * * The rest of the statement contains the finding of the department as to the time that death is presumed to have occurred under the Federal Missing Persons Act, and a narrative of the information upon which that finding is based^

This is all the evidence before me on the time, place and circumstances of the disappearance and the presumption is that the Lieutenant died while executing the airplane flight on July 26th or 27th, 1943.

There is ample precedent that circumstantial evidence •of death, and the date of it is sufficient to base a finding of death, and the time thereof, if the circumstances taken altogether reasonably tend to support the inference sought to be derived therefrom. Gero v. John Hancock Life Insurance Co., 111 Vt. 462, 18 A.2d 154; Herold v. Washington National Insurance Co., 128 Pa.Super. 563, 194 A. 687. In the latter case the subject was last seen alive swimming in the ocean at a summer resort. He was never seen again, and the court decided that notwithstanding the fact that seven years had not elapsed since the disappearance of the subject, the above demonstration was sufficient to entitle a jury to determine that the person died by drowning on the day that he was last seen, as above described. So it was held that evidence that a steamboat officer was seen on the ship one evening while the ship was at sea and was never seen or heard of thereafter, was sufficient to entitle the jury to find that the man died on the day of his disappearance, and that it was not necessary to wait for seven years after the disappearance before making such judicial finding.

In view of the foregoing, I am constrained to hold that Lt. Dodson is dead, and that he died on July 26 or 27, 1943. The result hereof is that his distributive share in Mrs. Wood’s Estate must be awarded to the surviving legatees.

Let counsel prepare a Decree accordingly, and present it for signature.


author: LYONS, J.

text:
    TURTLETAUB v. HARDWARE MUT. CASUALTY CO. et al.
    No. 31825.
    District Court of New Jersey, Essex County.
    Sept. 16, 1948.

      George J. Miller, of Trenton, for plaintiff.
    Cox & Walburg, of Newark, for defendant Hardware Mut. Casualty Có.
    John C. Grimshaw, of Newark, for defendant Citizens. Casualty Co. of New York.
   LYONS, J.

This matter, which was originally set down for trial by jury, comes before the Court as a result, of a pre-trial conference, on a stipulation of fact and the testimony of one-witness for the plaintiff, together with briefs.

The defendant, Hardware Mutual Casualty Company, a corporation, issued a policy of insurance to the plaintiff, Herman Turtletaub, trading as Star Bottling Company and/or Royal Crown Bottling Co., insuring the plaintiff for any loss “ * * * caused by accident and arising out of the ownership, maintenance or use of the automobile,” (insuring agreements I), including “use of the automobile for the purposes stated, including the loading and, unloading thereof” (insuring agreements X). The policy further describes the occupation of the named assured as “Mfg. & Distributing Beverage—Own Business” (Declarations, item 1).

. The defendant, Citizens Casualty Company of New York, issued its policy, known as “Manufacturers’ and Contractors’ Liability Policy,” to the plaintiff, in which it agreed with the insured named,

(1. Coverage A—Bodily Injury Liability.)

“To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting therefrom sustained by any person or persons, caused by accident and arising out of the hazards hereinafter defined.” (Insuring Agreements)

(Division 1. Premises—Operations.)

“The ownership, maintenance or use of the premises, and all operations during Policy Period which are necessary or incidental thereto, including accidents (except accidents due to Misdelivery) which occur after completion or abandonment of operations, and arise out of pickup or delivery operations or the existence of tools, uninstalled equipment and abandoned or unused materials.”’ (Definition of Hazards).

(Division 3. Products.)

“The handling or use of or the existence of any condition in goods or products manufactured, sold, handled or distributed by the named insured, if the accident occurs after the insured has relinquished possession thereof to others and away from premises owned, rented or controlled by the insured; and operations covered under Divisions 1 and 6 of the Definition of Hazards (other than pick-up and delivery and the existence of tools, uninstalled equipment and abandoned or unused materials), if the accident occurs after such operations have been completed or abandoned at the place of occurrence thereof and away from such premises.” (Definition of Hazards).

“This Policy excludes Coverage:

“(a) under Division 1 of Definition of Hazards (3) while away from the premises insured under this policy for boats or dogs; draft or saddle animals; animal drawn or power driven vehicles, including vehicles attached thereto, or the loading or unloading thereof; vehicles from which merchandise is sold; and any other vehicle while rented to another.” (Exclusions)

The facts further disclose that one Jacob Berg, who was employed by the assured, drove the assured’s truck to the premises of one of the assured’s customers, a Mrs. Esberge, for the purpose of making delivery of cases of soda. The truck was parked in front of these premises and the cases of soda unloaded to the sidewalk and from there hand trucked into the building by a hand truck, which formed part of the equipment of the truck. While the hand truck was in such use inside the building, Mrs. Esberge was injured as a result of the hand truck striking her too. Mrs. Esberge sued the plaintiff herein for damages for the injuries arising out of this incident. A consent judgment in the sum of $300.00 was entered in favor of Mrs. Esberge against the plaintiff herein. Suit then was started in this Court against both defendants for the purpose of recovering the amount the plaintiff herein was forced to pay as a result of the judgment recovered against him in the suit instituted by Mrs. Esberge.

It is further stipulated that in the event recovery is had against either or both of the defendants, judgment will be in the sum of $3,00. It is stipulated further that the plaintiff herein has met all the conditions of the policies and that the only matter before this Court is one of interpretation of the policies.

From an examination of the policy issued by the défendant, Citizens Casualty Company of New York, it is apparent that this policy does not cover the plaintiff against hazards resulting from the use of the automobile or the loading or unloading thereof but especially excludes any such coverage. Under the caption “Exclusions” the policy provides as follows:

“This Policy excludes Coverage:

“(a) under Division 1 of the Definition of Hazards

“(3) while away from the premises insured under this policy for boats or dogs; draft or saddle animals; animal drawn or power driven vehicles, including vehicles attached thereto, or the loading or unloading thereof; vehicles from which merchandise is sold; and any other vehicle while rented to another.”

The next question for determination is the interpretation of the policy of the defendant, Hardware Mutual Casualty Company. Does this policy cover the plaintiff against the happening of this contingency? To answer this we must decide what is meant by the “loading” and “unloading” clause of the policy.

The cardinal principles pertaining to the construction and interpretation of insurance contracts generally have been fully applied to the interpretation of the “loading and unloading” and there is, of course, no apparent reason why this should not be done. Among such principles are these—that the intentions of the parties should control-, that the terms of the clause are to be taken and understood in their plain, ordinary and popular sense and that in determining the intention of the parties, the policy should be considered and construed as a whole by giving effect to the whole instrument and to each of its various parts and provisions.

A statement frequently made by the Courts in determining the scope of the “loading and unloading” clause is that it is impossible to set down any general rules as to what accidents should be covered by the clause, but that each case must be treated separately, according to the facts involved. American Oil & Supply Co. v. United States Casualty Co., 19 N.J.Misc. 7, 18 A.2d 257.

While the Courts are not agreed as to the meaning of the terms “loading” and “unloading” and the cases are in conflict, it appears that the Courts in interpretating these two clauses are guided by one of two theories—the “coming to rest” theory and the “complete operation” theory. 160 A.L.R. 1264.

Under the “coming to rest” doctrine, which gives a narrow and limited interpretation to these clauses (“loading and unloading”), the “unloading” comprises only the actual removing or lifting of the article from the motor vehicle up to the moment where (a) the goods which were taken off the vehicle have actually come to rest and (b) every connection of the motor vehicle with the process of unloading has ceased. 160 A.L.R. 1264.

Under the “complete operation” theory,, which gives a broader and more adequate interpretation to the clauses, (“loading and unloading”), the Courts take the view that such clauses cover the entire process involved in the movement of goods from the moment when they are given into the insured’s possession until they are turned over at the place of destination to the party to whom delivery is to be made. 160 A.L.R. 1267.

Is this Court free to adopt one or the other of these theories of interpretation, if so which one should be utilized?

My research has enabled me to discover but three cases in New Jersey which bear upon the subject matter here under discussion. They are: Jackson Floor Covering, Incorporated v. Maryland Cas. Co. of Baltimore, a Corporation, Err. & App., 117 N.J.L. 401, 189 A. 84; Zurich General Accident & Liability Ins. Co., Limited v. American Mutual Liability Ins. Co. of Boston, 118 N.J.L. 317, 192 A. 387 and American Oil & Supply Co. v. United States Casualty Co., 19 N.J.Misc. 7, 18 A.2d 257.

A careful reading of the first two of these three cases will demonstrate that neither the Court of Errors and Appeals in the Jackson Floor Covering case, supra, nor the Supreme Gourt in the Zurich case, supra, was called upon to nor did they interpret a “loading and unloading” clause.

In the Jackson Floor Covering case the plaintiff, the assured, sold merchandise to a firm having a concession in a market. Its truck, in making delivery, had backed up to the loading platform and its driver was furnished, by an employee at the market, with a hand truck which was used to wheel the merchandise to the stand of the purchaser. While the hand truck was in use a person in the market was injured by it resulting in a judgment which the plaintiff paid and sought to recover under the terms of the policy issued to it by the defendant.

The defendant agreed under its policy to

“Insure * * * (the plaintiff) against the loss from liability imposed by law upon the assured for damages on account of bodily injuries * * * accidentally suffered * * * by person or persons not employed by the assured, while at or about the work of the assured and during the prosecution of said work at the place or places mentioned in item 4(a) of the statements hereof (and elsewhere if caused by employees of the assured engaged as such in said operations and at said places, but who are required in the discharge of their duties to be from time to time at other places) * * *. The policy also provided: ‘VI. This policy does not cover * * * any accident caused directly or indirectly by any automobile vehicles or by any draught or driving animal or vehicle owned or used by the assured or by any employee of the assured in charge of any such vehicle or animal, unless such accident shall occur upon premises owned by or under the control of the assured, or on the public ways at a point immediately adjacent thereto and provided such premises are specifically described in Item IV (a) of the Schedule hereof.’ ”

Again, 117 N.J.L. at page 402, 189 A. at page 85, Mr. Justice Bodine states the issue as follows:

“Appellant’s principal point is that the hand truck involved in the accident was a ‘draught vehicle’ within the terms of the policy. The learned trial judge properly held otherwise. The words of general coverage are broad.”

Nowhere in this case is there to be found any interpretation or semblance of an interpretation of a “loading and unloading” clause.

In the Zurich case, supra, Mr. Justice Heher, writing for the Supreme Court, 118 N.J.L. at page 321, 192 A. at page 389, states:

“We have no occasion to determine whether an accident occurring in the course of the ‘loading or unloading’ of a vehicle within the policy coverage arises in connection, with its ‘maintenance, use or operation,’ within the intendment of plaintiff’s policy. Here the unloading of the merchandise had been completed when the accident occurred. The assured’s servant was then engaged in the servicing; of the delivered milk upon Borer’s premises, an act entirely disconnected from the unloading of the article from the vehicle.”

In this case the assured, who was engaged in the milk business, had already delivered its milk to its customer from its truck and was in the act of servicing the delivered milk when the accident occurred. So from these two cases it is apparent that the Courts of this state had not been called upon to interpret and construe the clause under consideration in the one at bar and that as far as New Jersey is concerned the question is one of novel significance.

In the American Oil & Supply Co. case, supra, decided by Judge William A. Smith at the Essex Circuit in 1940, the question of interpretation of this type of clause was. squarely presented for determination but it does not appear that he adopted either the “coming to rest” theory or the “complete operation” doctrine in his construction of the policy. But from the facts in that case it is apparent that there would be liability whether one or the other theories was used. The driver of the assured in that case carried the articles directly from his truck and while depositing them where he was instructed to deposit them by the assured, damaged plates belonging to a customer of the assured. From the facts, as has been pointed out, whether the liberal (“complete operation”) or less liberal (“coming to rest”) doctrine be employed as the norm of interpretation and construction, coverage would result.

It having been demonstrated, from a discussion of the only three cases in New Jersey touching this problem, that this Court is free to choose one or the other theory in construing a “loading and unloading” clause, the next question for discussion is which view should be adopted.

. In construing the policy under consideration, what the Court is trying to do is to spell out the intention of the parties as reflected by their contract. Surely the parties intended coverage of the contingency which happened. The plaintiff declared his business to be the “manufacture and distribution” of soda and the policy covered the ownership, maintenance or use of the automobile; the hand truck involved in the accident was part of the equipment of the automobile and intended for the purpose of trucking soda from the truck to its place of ultimate rest. Unless it is agreed that the phrase “loading and unloading” is. a phrase of extension—expanding the expression “use of the truck” somewhat beyond its construction, otherwise, so as to bring within the policy some acts in which the truck in and of itself does not play any part— the expression has no meaning.

From a reading of the policy and the factual situation, I am of the opinion that the intention of the parties to the insurance contract will best be spelled out by applying the more liberal norm of interpretation, that is, “the complete operation” theory and thus give effect to the intention of the parties. Using this norm, I find that the policy of the defendant, Hardware Mutual Casualty Co., a corporation, afforded plaintiff coverage against the hazard complained of.

In my view the “coming to rest” theory leads to too narrow an interpretation and does not give effect to the intention of the parties as manifest by their contract.

The leading case applying the “coming to rest” doctrine is Stammer v. Kitzmiller, 226 Wis. 348, 276 N.W. 629.

The leading case in which the “complete operation” rule was applied is State ex rel. Butte Brewing Co. v. District Court, 110 Mont. 250, 100 P.2d 932. New York also clearly follows this rule. See B. & D. Motor Lines Inc. v. Citizens Casualty Co., 1943, 181 Misc. 985, 43 N.Y.S.2d 486, affirmed without opinion in 1944, 267 App.Div. 955, 48 N.Y.S.2d 472, leave to appeal denied without opinion in 1944, 268 App. Div. 755, 49 N.Y.S.2d 274.

For a splendid treatise which runs the whole gamut of this issue see the annotation in 160 A.L.R. beginning at page 1259.

Judgment, therefore, in the sum of $300 will be entered in favor of the plaintiff, Herman Turtletaub, trading as Star Bottling Company and/or Royal Crown Bottling Co., and against the defendant, Hardware Mutual Casualty Co., a corporation, and a verdict of no cause for action in favor of the defendant, Citizens Casualty Company of New York, a corporation, and against the plaintiff, Herman Turtletaub, trading as Star Bottling Company and/or Royal Crown Bottling Co.


author: LABRECQUE, C.

text:
    ROLFFS et al. v. SPRINGFIELD TP.
    Department of the Treasury, Division of Tax Appeals, New Jersey.
    Jan. 11, 1949.

      Grover F. Kipsey, of Somerville, for petitioners.
    Robert F. Darby, of Newark, for respondent.
   LABRECQUE, C.

The petitioners appeal from the action of the Union County Board of Taxation affirming an added assessment in the amount of $10,000 levied for the year 1947.

On October 1, 1946, one Paul F. Prince was the owner of a large tract of unimproved land in the respondent township. On November 15, 1946, he conveyed a portion thereof to the petitioners herein. They thereupon proceeded to erect a factory building upon the premises. Construction of the building was started after October 1,1946 and was completed on or before January 1,1947.

The township assessor in making up his books for the year 1947 levied an assessment against the petitioners’ property, as of October 1, 1946, of

Land $ 2,100
Imps 10,000
Total $12,100

He did this, notwithstanding that the entire tract of land had been assessed to Prince, who did not appeal, but paid the assessment in full.

An appeal from this assessment was taken to the Union County Board of Taxation. The County Board set the assessment aside. The reasons given for its judgment were, “Land is also assessed to former owner Paul F. Prince. Building not started on October 1, 1946.”

Following the hearing before the County Board and within the statutory period, the township assessor laid an added assessment against the petitioners’ property as of January 1, 1947, in the amount of, improvement, $10,000. An appeal from this assessment was taken to the County Board, resulting in an affirmance, from which action the present appeal is taken to us.

It is urged that the action of the ’County Board in cancelling and remitting the prior assessment was res ad judicata and precluded the levying of an added assessment against the subject premises. The facts before us do not sustain this contention. On the contrary, as appears by the records of the County Board, it cancelled the assessment on the land for the reason that on the assessing date the land in question was the property of Mr. Prince, to whom it was assessed and who paid the taxes thereon. The building assessment was can-celled for the reason that there was no building on the premises on the assessing date. Both these reasons were entirely consistent with the action of the assessor in later levying an added assessment to take into consideration the improvement which had been constructed on the premises prior to January 1, 1947.

The applicable statute, R.S. 54:4-63.2, N.J.S.A., reads as follows: “ * * * when any parcel of real property contains any building or other structure which has been erected, added to or improved after October first in any year and completed before January first following, the assessor shall, after examination and inquiry, determine the full and fair value of such parcel of real property as of said January first, and if such parcel of real estate was not assessed as of October first preceding or if such value so determined exceeds the assessment made as of October first preceding, the assessor shall enter the amount of such assessment or such excess, as an assessment or an added assessment against such parcel of real property, in a list to be known as the ‘Added Assessment List, 19’ (inserting the name of the year in which the assessment is made); such entry to be made opposite the name of the owner and the description and area of the parcel of real property.”

It seems quite clear that the statute was intended to apply to just such a state of facts as the one sub judice. The fact that the assessor erroneously levied an assessment against both the land and building in the first instance cannot deprive the municipality of its right to compel these taxpayers to pay their just share of taxes, based upon the property owned by them during the assessment year. Becker v. Mayor and Council of Borough of Little Ferry, 125 N.J.L. 141, 14 A.2d 493, affirmed 126 N.J.L. 338, 19 A.2d 657.

Nor was the added assessment vitiated by the fact that there was no land actually assessed to the petitioners for the year in question. The land in dispute was assessed to Prince, the owner on the assessing date. His interest in the property passed to the petitioners on November 15, 1946. While it may be argued that there should have been an actual apportionment of the land as between Mr. Prince and the petitioners, nevertheless this procedure was not a sine qua non to the validity of the assessment and its omission did not deprive the municipality of its right to tax the subject premises. Becker v. Mayor and Council of Borough of Little Ferry, supra. This is especially true, since under R.S. 54:4-26, N.J.S.A., provision is made for the enactment of rules requiring that the assessment of lands and improvements be made separately. Such rules have been uniformly applied and carried out and our courts have held that an appeal may be taken from the assessment on the improvement without questioning the assessment on the land. City of Newark v. Timer, 170 A. 37, 12 N.J.Misc. 125.

Any further doubt concerning the validity of the assessment is resolved against the appellants by the provisions of R.S. 54:4-58, N.J.S.A., which provides: “No tax, assessment or water rate imposed or levied in this state shall- be set aside or reversed in any action, suit or proceeding for any irregularity or defect in form, or illegality in assessing, laying or levying any such tax, assessment or water rate,' -or in the proceeding for its collection if the person against whom or the property upon which it is assessed or laid is, in fact, liable to taxation, assessment or imposition of the water rate, in respect to the purposes for which the tax, assessment or rate is levied, assessed or laid.”

In Becker v. Mayor and Council of Borough of Little Ferry, 126 N.J.L. 338, 19 A.2d 657, our then highest court held that the statute in question destroyed, root and branch, the power to defeat a tax, except upon a meritorious ground. See also Musconetcong Iron Works v. Borough of Netcong, 90 N.J.L. 58, 99 A. 914.

The assessor determined that the property had been enhanced in value to the extent of $10,000, by reason of the erection of the improvement. The correctness of the amount of the assessment has not been brought into question. Since both the building and the land on which it was erected were in fact liable to taxation, the County Board properly dismissed the appeal.

The action ,of the Union County Board of Taxation is affirmed.


author: ELY, D. C. J.

text:
    D. L. & W. RAILROAD CO. v. GINSBERG et al.
    District Court, Morris County, New Jersey.
    Nov. 29, 1948.
    Donald R. Creighton of Hoboken (Allan W. Keusch, of Hoboken, of counsel), for plaintiff.
    Bertram M. Berla, of Dover, for defendants.
   ELY, D. C. J.

The plaintiff in this cause of action has instituted suit to recover for freight charges allegedly due from the ■defendants on shipments of cattle over the Delaware, Lackawanna and Western Railroad Company and the defendant has filed a counterclaim for damages for the loss of three cows claimed to have resulted from the alleged neglect and negligence of the plaintiff, the Delaware, Lackawanna and Western Railroad Company. The plaintiff, thereupon, moved to strike the counterclaim filed by the defendant.

In support of the motion to strike the counterclaim, the plaintiff cites the case of the Delaware, Lackawanna and Western Railroad Company v. Henry Nuhs Company, 93 N.J.L. 309, 111 A. 223. This decision says, in part, “the fundamental concept of our constitutional form of government, which concedes to the federal government exclusive jurisdiction, except as permitted by federal legislation to the states, in all matters of interstate commerce. It also assumes that the public policy thus declared may, in its results, run counter to an evolution of state public policy; but it is obvious that as against the clear constitutional right of the general government to legislate. there can be recognized no legally independent antagonistic state policy which would in its results be destructive of the fundamental, conception of our national policy, based upon the constitutional prerogative. As between the federal and state courts, the determinations of the former, upon the construction of a federal statute, in a cause arising ‘under the laws of the United States or growing out of the legislation of Congress’, is conclusive and determinative upon the latter in suits instituted in the state jurisdiction. Wilcox v. Jackson, 13 Pet., U.S. 498, 10 L.Ed. 264; Missouri, K. & T. R. Co. v. Elliott, 184 U.S. 530, 22 S.Ct. 446, 46 L.Ed. 673; In re Lennon, 166 U.S. 548, 17 Sup.Ct. 658, 41 L.Ed. 1110; Robb v. Connolly, 111 U.S. 624, 4 S.Ct. 544, 28 L.Ed. 542.”

The defendant, by way of answer to the plaintiff's motion, relies upon the decision of the United States Supreme Court in Chicago & N. W. R. Co. v. Lindell, 1930, 281 U.S. 14, 50 S.Ct. 200, 74 L.Ed. 670, wherein the court in disposing of a motion to strike the counterclaim in a case similar to the one at bar said “Adjustment of demand by counterclaim rather than by independent suit is favored and encouraged by law, since such practice serves to avoid circuity of action, inconvenience, expense, consumption of courts’ time, and injustice” and in fact held, contrary to plaintiff’s contention, that “the shipper, acting in good faith and without collusion, is not debarred by the Interstate Commerce Acts, particularly the Hepburn Act (34 Stat. 587) from pleading, by way of set-off,' a counterclaim for a loss suffered by him as a result of the carrier’s failure to perform its obligations touching the transportation and delivery of the identical shipment”.

There is no doubt that the decision in the Nuhs case is based upon Federal Public Policy as determined by previous decisions in the Federal Courts. However, the decision in Lindell case, relied upon by the defendant, has apparently reversed previous determinations as to Federal Public Policy relied upon by the Supreme Court in the Nuhs decision.

The policy of the courts of all jurisdictions of recent years has continually been one of disposing of all causes of action between parties involved in one action.

The motion to strike the counterclaim is, therefore, denied without costs.


author: TOMASULO, A. M.

text:
    ULLRICH v. ULLRICH.
    153/215.
    Court of Chancery of New Jersey.
    Dec. 11, 1947.

      Samuel F. Penza, of Newark, for complainant.
    Simon M. Seley, of Newark, for defendant.
   TOMASULO, A. M.

Complainant filed her bill for separate maintenance alleging that the defendant, without justifiable cause, abandoned her on March 5, 1945, and that since that time has refused and neglected to maintain and provide for her and their son Richard, age 17.

The defendant filed an answer and counterclaim and by the former, denied the allegations of the bill, and by. the counterclaim, sets out a cause of action for divorce on the ground of desertion alleged to have commenced on or about January 1942.

Complainant’s position may be concisely stated as follows: That since they were married on June 16, 1921, there was never any real happiness between them because, as she stated, “he always wanted the freedom of a bachelor along with the privileges and comforts of a married man”; that this often resulted in disputes.

Since January 1941 there was a cessation of marital' relation. She states: “At first he ignored me. I noticed, he wasn’t feeling well. His eyes were watery and red-rimmed. I asked him to see a doctor. His underwear and bed clothes were soiled. I spoke to him and he said he had a boil”; that on one occasion, when she opened the bathroom door in May 1941 she noticed that he was badly infected about his abdomen and privates; that she spoke to him about this and suggested that he see a doctor and his response was that this was unnecessary. Complainant states further that she was worried about his condition because there was evidence of “puss and flecks of blood on his undershirts and lower part of his pajamas”; that she offered to accompany him to a doctor of her own or his choice, which offer was declined; that sometime later, the defendant consulted a physician, whose name he refused to reveal, but that he brought home a box of capsules bearing a label indicating that its contents were to be applied locally.

Complainant testified that in December 1941 she accompanied her husband on a trip to Florida and that before making this trip she requested' him to visit a physician for the purpose of having a blood test made, which he likewise declined to do, and that during their stay in Florida the defendant made one sexual advance to her to which she did not submit because of his failure to go to a doctor as she requested; that thereafter, he never made any sexual approach to her except for two occasions, one, “when the alarm went off and I got up to fix my son’s breakfast—he was going to work, and another time I was physically unable to be obliging.” Both of these occasions were in December 1944.

During the winters of 1941 and up to March 1947, the defendant made solo trips to Florida. Complainant placed in evidence, two letters, exhibits C-2 and C-3 which she found among the defendant’s effects. C-2 was a letter addressed to Mr. and Mrs. Joseph Ullrich, Merritt Island, Box 31, Florida, c,/o Stuart Beltz. It is apparent that the complainant was not in Florida when the letter was mailed to the defendant. Exhibit C-3 is a letter addressed to Miss Gladys Corbitt, Box 31, Merritt Island, Florida, c/o Stuart Beltz. Both exhibits are postmarked February 18, 1947, It appears that both of these letters were re-directed to 125 Weequahic Avenue, Newark, N. J., having been undelivered to the Florida address. An examination of the letter and envelope suggests the inference in which the complainant attempted to convey that the defendant had been living with Gladys Corbitt either in Florida or at 125 Weequahic Avenue, Newark, N. J., or both.

On cross examination, the complainant stated that she would be glad to engage in sexual relations with her husband had he received “a clean bill of health.” She further testified she would have been willing to submit to sexual intercourse but not at the risk of her health.

In his version of the testimony, the defendant stated that he had several discussions with his wife respecting his physical condition, which he said was “an acid condition whereby I had a little scaly red flesh which was not injurious or contagious. It was simply an acid condition that soiled the clothes a bit, other than that it was nothing. I never had any venereal disease.” To this extent the objective symptoms and physical condition of the defendant as testified to by the complainant, is corroborated.

Dr. York, a witness produced on behalf of the defendant, testified that he diagnosed the defendant’s ailment as being a “fungus condition of the groin and scrotum and severe anxiety” and upon cross examination said, “it’s like athlete’s foot and while not particularly contagious I think you can get it through contact.” Thus, Dr. York’s testimony as to the contagiousness of the defendant’s condition is in conflict with and refutes the defendant’s statement that his condition was not contagious.

Dr. Olcott, a rebuttal witness for complainant, in response to hypothetical questions based upon the testimony in the record, concludes that sexual contact between the parties would be “extremely dangerous” and that a person in the defendant’s position should not only be cautioned but ordered to avoid “that sort of thing.” Dr. Olcott stated further that the defendant’s condition was very easily communicated by sexual contact and that the likelihood of infection was more dangerous in a woman than in a man.

In the remainder of his testimony and on cross examination, defendant denies that the complainant ever mentioned this physical condition and in effect states that it was not even the subject of any conversation between them. His answers to questions propounded to him are punctuated by weak denials and general evasiveness. The record is barren as to any specific overtures having been made by him to his wife. His direct testimony is that from time to time he asked her to resume living with him. The defendant does not deny complainant’s testimony respecting his sexual advances to her in December 1944 and in fact, no mention of it is made in his testimony.

Aside from the foregoing, the bulk of the defendant’s testimony bears upon his wife’s alleged lack of understanding of his work and her failure to co-operate with him socially so as to enhance his position with his firm. In addition to this, the defendant’s counterclaim, even if true, lacks corroboration in every essential detail.

On the other hand, complainant’s position finds support in the testimony of her son, who on cross examination, branded the defendant as being “wrong” and charged his father with having solicited his testimony in a contemplated divorce action as far back as March 1945 because “he had another woman he wanted to marry at that time."

There is no doubt but that the unjustified refusal of sexual intercourse, persisted in wilfully, obstinately and continuously for a period of two years, constitutes a ground for divorce for the cause of desertion. Parmly v. Parmly, 90 N.J.Eq. 490, 106 A. 456; Rector v. Rector, 78 N.J.Eq. 386, 79 A. 295; Raymond v. Raymond, N.J.Ch., 79 A. 430; Haskell v. Haskell, 99 N.J.Eq. 399, 131 A. 876.

Conversely, if a spouse withdraws from conjugal intercourse for substantial reasons of health alone, the inferences of a wilful desertion, i. e., an unjustified cessation of cohabitation with intent not to resume relations is utterly unsustainable. Munger v. Munger, 130 N.J.Eq. 279, at page 282, 21 A.2d 784 and the cases cited therein.

The question therefore, which arises, is, under what circumstances will a spouse be excused? It is conceivable that any number of situations may be conjured up and therefore no attempt will be made to explore this field. The court’s inquiry is, of course, necessarily confined to the case at hand. Neither counsel has referred to the court any precedent in this state which is squarely on point. In arriving at a determination, therefore, I have pursued the trend and the reasoning of our courts in previously adjudicated cases. Thus, we find that where a spouse knowingly communicates a venereal disease to the other without the other’s knowledge or consent, it is extreme cruelty. Cook v. Cook, 32 N.J.Eq. 475. Such act will also justify the aggrieved spouse in leaving the home without being guilty of desertion. Crane v. Crane, N.J.Ch., 45 A. 270. Both of the foregoing cited cases deal with situations in which the disease was actually communicated. The case of Lazarwitz v. Lazarwitz, 102 N.J.Eq. 132, 139 A. 881 goes a step further and holds that the attempt of the husband, who to his own knowledge was suffering from syphillis, to force his wife to have sexual intercourse with him against her will, constitutes extreme cruelty. An analysis of these cases reveals that the underlying factor in the mind of the court is its desire to safeguard the health and welfare of the innocent spouse. The cited cases are situations in which the afflicted spouse had a venereal disease.

In the case at bar, the defendant was suffering from a visible skin affliction of the abdomen and privates, contagious in character; puss and blood flecks were its by-products and his underwear, night clothes and bed linens evidenced this. The complainant was aware of the defendant’s condition and had, in my judgment, ample reason to fear for her own physical well being in the event that she submitted to sexual contact. I do not believe that the mere fact that the defendant was not afflicted with a venereal disease as in the cases cited supra, alters the basic law and the reasoning underlying the same as I have indicated supra. I have therefore concluded that where, as here, a husband is suffering from an ailment which engenders in the mind of his wife a reasonable and well grounded fear that to engage in the sexual act with her husband would jeopardize her health and physical well-being, that the wife is excused from performing the marital act. Under such circumstances, it is incumbent upon the ailing husband to furnish reasonable assurance to his wife that he is either cured or that she is not endangering her health by having sexual relations with him.

In the case at bar, the defendant husband insisted upon what he conceived to be his legal right and refused to even assure himself, let alone his wife, that his condition was not a communicable one and that they could safely engage in the act. Complainant testified that her refusal to submit to intercourse was not unconditional. She exhibited a willingness to do so but exhorted him to submit himself to a doctor of his or her choosing in order to assure her as well as him that it was safe1 to do so. This was her only condition. His refusal, as; I have indicated, in my judgment, excused her from complying with his demands.

And if this were not enough, to deny the defendant relief on his counterclaim, there is still another basis for doing so. Assuming that the complainant was . the deserter, which is contrary to the determination herein made, the defendant, under the law, became duty bound and obligated to make the necessary overtures to bring about the cessation of the alleged desertion on the part of the complainant. Glusker v. Glusker, 176 A. 567, 13 N.J.Misc. 105; Goldberg v. Goldberg, 101 N.J.Eq. 284, 137 A. 438; Holst v. Holst, 101 N.J.Eq. 682, at page 691, 139 A. 333. And as to the proof in this regard, the burden of proving that the defendant made these overtures sincerely, falls upon his shoulders. Popovics v. Popovics, 98 N.J.Eq. 350, 129 A. 126; Goldberg v. Goldberg, 101 N.J.Eq. 284, 137 A. 438; Sheeran v. Sheeran, 115 N.J.Eq. 75, 169 A. 871; Holst v. Holst, 101 N.J.Eq. 682, 139 A. 333; Henderson v. Henderson, 134 N.J.Eq. 363, 35 A.2d 686; Baxter v. Baxter, 101 N.J.Eq. 236, 136 A. 191; Hall v. Hall, 60 N.J.Eq. 469, 46 A. 866; Gordon v. Gordon, 89 N.J.Eq. 535, 105 A. 242. In this, the defendant has failed.

After a consideration of the testimony in its entirety, I am unconvinced that the defendant has made the requisite overtures in a bona fide and sincere manner. In fact, I am satisfied that the contrary is true, because notwithstanding that complainant and defendant lived in the same house together from the date of the alleged desertion in 1942 to the date of trial, the defendant made only two attempts at sexual relations with his wife both in December 1944. These attempts were both made, at which I believe and have determined, were inopportune times. This, together with the fact that the defendant was apparently interested in remarriage in 1945 as testified to by his son and his general conduct, demeanor and attitude during the hearing has satisfied me beyond any doubt that he has not only failed to make the requisite overtures required of him, but that any overtures alleged to have been made by him and those to which complainant testified in December 1944 were not made in a bona fide honest and sincere manner

I therefore have determined to advise a decree in favor of the complainant and to dismiss the counterclaim of the defendant.


text:
    BOWERS v. BOWERS.
    No. 156/609.
    Court of Chancery of New Jersey.
    July 21, 1947.

      See also 139 N.J.Eq. 40, 49 A.2d 887.
    'McCarter, English & Studer, of Newark, for petitioner.
    Joseph J. Corn, of Newark, for defendant.
   TOMASULO, A. M.

■ The parties to this suit were married on December' 2¡5,. 1936 at Dutch Neck, New Jersey and thereafter lived together as man and wife at Princeton, New Jersey. One child was born of the marriage; Bonnie Lee, who, at the time of the filing of the petition, was five years of' age.

On May 17, 1946, the defendant instituted a divorce action against the petitioner in the state of Nevada and on June 21, 1946, obtained a final decree of divorce. Petitioner contends the Nevada decree is invalid, in that the defendant falsely and fraudulently alleged that she was an actual bona fide resident of the State of Nevada and that consequently, the courts of the State of Nevada had no jurisdiction. The petitioner did not appear in the Nevada Court or otherwise submit to its jurisdiction.

' On June 21, 1946, the day of the entry of the Nevada final decree, the defendant and one L. Russell Cook went through a pretended ceremony of marriage in Reno, Nevada.

'.The petition charges that between June 6, 1946, and Juhe 19, 1946, the defendant committed adultery with the said L. Russell Cook in Los Angeles, California and that since June 21, 1946, the defendant has committed adultery with the same Mr. Cook at Princeton, New Jersey.

The answer filed, by this defendant sets up several-defenses, none of which (for the purpose of the appeal) need be considered excepting the second defense which alleges as a bar to the right of the petitioner to a decree in this court, the existence of a decree of divorce procured by her in the State of Nevada on June 21, 1946. This portion of defendant’s answer is the only one of the defenses embraced in the amended notices of appeal which sets up That The Court erred in determining:

(a) That the final decree of divorce entered on June 21, 1946, in the Second Judicial District Court of the State of Nevada in favor of the defendant herein against the petitioner herein is null and void and of no effect for lack of jurisdiction, and is not entitled to full faith and credit in the courts of New Jersey;

(b) That defendant has been guilty of adultery charged against her and the said petition as having been committed since June 21, 1946;

(c) That the petitioner Raymond Andrews Bowers and the defendant VernaLee Mather Bowers be divorced from the bond of matrimony for the cause aforesaid; and

(d) That the custody of Bonnie Lee Bowers, the child of the marriage of petitioner and defendant, be awarded to the petitioner.

It is evident that a determination of the first ground of appeal, (a) will be dispositive of the second and third grounds of appeal, (b) and (c), and therefore, they will be dealt with together.

The testimony discloses that as early as September 1945, the petitioner and the defendant were in difficulties culminating in a determination by her that “she had made up her mind to leave me” as the petitioner testified. The petitioner further testified that persistent inquiry by him of his wife finally elicited from her the admission that defendant was interested in another man, although the petitioner did not at that time suspect it was Mr. Cook, with whom petitioner was associated in a social and business way; that at petitioner’s suggestion, a three month trial period was agreed upon which the petitioner had hoped would save his marriage. At the conclusion of the trial period, which brings us to January, 1946, petitioner received assurances from the defendant that “every-thing was satisfactory” but this “satisfaction” was short-lived, since it appears that on January 15, 1946, the defendant told the petitioner, “I am going to leave you. I have made up my mind.” This she did on the 30th of January 1946. The defendant packed her personal belongings, including her clothes, certain articles of furniture and utensils in the house, and moved them to the third floor of her father’s home in Princeton, N. J., in which she said she planned to live “when she would return from Reno.” It appears that she had previously made plane reservations for her trip to Reno and that because of inclement weather, resulting in the cancellation of the flight, she made the trip to Reno by train. The defendant wrote several letters from which the following excerpts bear upon her frame of mind as it relates to the issues before the court:

(Letter dated February 23, 1946). (a) From exhibit P-2 written to the petitioner, “We received two quilts for wedding presents. One from your grandma and one from Aunt Clara, I think I thought the one I took came from my side of the family. If I am mixed up on them, please use what is there and upon my return they’ll be straightened out.”

(b) From exhibit P-3, a letter addressed to Mr. and Mrs. L. A. Wright, Princeton, N. J. under date March 23, 1946, “I know how shocked and surprised you must have been to hear about Ray and me and I hasten to assure you that it was not done on the spur of the moment * * * there is no need to take sides for I am well aware that my husband is a particularly fine person and for whom I have had and always hope to have the utmost respect and admiration. I am so genuinely fond of you both, I hope to see you upon my return to Princeton in the future.”

(c) From exhibit P-4, a letter addressed to Mrs. Helen Plott, Trenton, N. J. under date of April 26, 1946, “I would like to see you when I return.”

The defendant instituted her suit for divorce in the Nevada courts on May 17, 1946. A copy of the summons and petition was served personally upon the petitioner at Princeton, N. J., on May 21, 1946. The petitioner did not take part in these proceedings nor did he submit to the jurisdiction of the Nevada courts, and on June 21¿ 1946 a final decree of divorce was entered in her favor. An examination of the transcript of the Nevada proceedings discloses an alleged cause of action upon the alleged ground of extreme cruelty on the part of the husband which admittedly took place in New Jersey and which would fall far short of the requirements under our adjudicated cases for the purpose of sustaining an action for divorce for extreme cruelty.

As has been shown, defendant married Cook on June 21, 1946, and returned to Princeton, N. J., with him the early part of July 1946, the petitioner having seen her in Princeton on July 5, 1946. It is admitted that since June 21, 1946, the defendant and Cook have been living together as husband and wife and that in September 1946 they were residing in Pennington, N. J., in a home which was purchased by them.

The testimony of Ann Dishman, a sister of the petitioner, shows that in January 1946, the defendant told her at a luncheon that she planned to leave petitioner and that she was going to Reno for the purpose of getting a divorce and that there was another man whose name she did not mention; that she received a letter from the defendant (exhibit P-7) written while the defendant was in Reno, under date of March 22, 1946 in which the defendant stated, “I had hoped that this would be over by now and that I could leave Reno before or very shortly after a friend of mine arrives and he is due the first or second week in April. I have no immediate plans for the future except that I shall leave Nevada in April for parts unknown. Before I leave Reno I shall telephone to say goodbye.”

The co-respondent, L. Russell Cook, testified as follows: That in April 1946 he Was a resident of New Jersey; that having had marital difficulties with his wife for about nine years, that on April 21, 1946 he instituted a suit for divorce against his wife in Reno, Nevada; that she filed a counterclaim and obtained a divorce upon the counterclaim against him on May 23, 1946; that he arrived in Reno on April 6th or April 7, 1946, and that he and the defendant in this suit saw one another frequently during their stay in Reno; that he had hoped, upon being divorced by his wife, to marry the defendant; that in June 1946, the defendant and he were together in California. It is evident from depositions taken de bene esse in California, of one R. E. Engersoll, a cashier and room clerk of the Arcady Apartment Hotel, Los Angeles, California, that the defendant and Cook occupied the same room as Mr. and Mrs. L. Russell Cook between June 6, 1946 and June 19, 1946. His testimony is indisputable both as to this fact and as to the identification of the parties, the identification of the defendant being made by means of a large photograph comprising an exhibit attached to the depositions.

The defendant, in her version of the testimony, stated, in response to a question as to what her plans were when she left New Jersey on January 30, 1946, that “I was interested only in leaving Princeton, N. J. I have no permanent arrangements to ever return.” This appears to be the only direct and unevasive answer given by the defendant. Her other testimony is punctuated with hesitant responses and failure to answer. Another interesting statement made by the defendant is that she 'knew Cook’s difficulties with his wife before she, the defendant, left New Jersey for Reno.

In this state of facts, it has not been difficult for me to determine where the truth lies. I am convinced and I have determined as a fact, that the defendant had a well laid preconceived plan to leave the petitioner and to journey to Reno, Nevada, with the avowed intention of procuring the decree of divorce ultimately obtained by her on June 21, 1946 and to marry the co-respondent, L. Russell Cook. I do not believe the defendant in her belated protestations that when she went to Reno that she intended to become a permanent resident of Reno. Everything which she did and said at the time and since the entry of the Reno decree belies this: Her storing of her personal effects, household belongings and furniture at her father’s home before leaving for Reno, and the letters which she wrote in which she indicated a plan to return to New Jersey, satisfy me conclusively that she never intended to remain in Reno any longer than was necessary. In fact, this is exactly what took place.

I am therefore led to the inescapable conclusion that the defendant never effected a change of domicile and consequently, she, in my judgment, remained a resident of the State of New Jersey during the pendency of the divorce proceedings in Reno, with the result that the Nevada courts lacked the requisite jurisdiction to enter a decree in the proceedings instituted there by the defendant.

I have determined therefore, that the Nevada courts, adjudication of domicile was based upon the defendant’s misrepresentation or suppression of essential facts and is therefore, not binding upon the courts of this state. Sprague v. Sprague, 131 N.J.Eq. 104, 23 A.2d 810.

Aside from this, and even were I to believe the defendant in her statement that she never intended to return to New Jersey, I must, nevertheless, find that the defendant never intended to remain in Reno, Nevada and that consequently, as in the Sprague case, Supra, the animus manendi was lacking, with the result that the defendant failed to effect a change of her domicile from New Jersey to Nevada, bringing us to the same result as heretofore —viz.: That the courts of Nevada lacked jurisdiction to enter a decree of divorce in the proceedings brought by the defendant for that purpose. Sprague v. Sprague, supra.

It follows also, that the defendant's decree does not come within the protection of the Federal Constitution, Article IV, Section 1, (the full faith and credit clause), because of the lack of domicile of either of the parties' in Nevada and because the matrimonial domicile of the' parties being in New Jersey, process in the suit was' not served personally upon the petitioner in Nevada nor' did he enter any appearance, Sprague v. Sprague, supra; Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L. Ed. 867, 5 Ann.Cas. 1, hence, the validity of the Nevada decree in New Jersey must be determined by our own public policy. Sprague v. Sprague, supra, and since neither petitioner nor defendant in the Nevada suit was domiciled in Nevada, defendant’s Nevada decree is not within the protection of our own full faith and credit clause. Sprague v. Sprague, supra; Lister v. Lister, 86 N.J.Eq. 30, 37, 97 A. 170; Hollingshead v. Hollingshead, 91 N.J.Eq. 261, 110 A. 19. In addition to the foregoing, the proviso of R.S. 2:50-35, N.J.S.A. constitutes a positive prohibition to our own recognition of the defendant’s Nevada decree as of any force or effect in New Jersey since the defendant left New Jersey and went to Nevada for the purpose of obtaining her decree of divorce there, for a cause which occurred while the parties resided in this state. Sprague v. Sprague, supra; Sechler v. Sechler, 94 N.J.Eq. at page 47, 118 A. 629; Di Brigida v. Di Brigida, 116 N.J.Eq. 208 at page 216, 172 A. 505.

For the reasons above stated, the defendant’s Nevada decree of divorce is void and of no force or effect in New Jersey; therefore, the Reno decree is void in New Jersey and should be set aside. Petitioner is entitled to a decree for divorce as prayed for in his petition.

This brings me to the remaining ground of appeal— that respecting the custody of the child of the marriage. At the time of the entry of the decree, and for a long time prior thereto, and since January 30, 1946, the child was in the custody of the petitioner. It was not until after the defendant’s return from Reno, armed with her invalid Reno decree, that she instituted a custody suit in this court on August 6, 1946 (docket 156/575). This ■suit resulted in the entry of a final decree consented to by both petitioner and defendant under date of June 4, 1947. This final decree represented what appeared to be the best judgment of both parents and of their respective counsel as to what was best for the welfare of the child as to both custody and visitation. This decree continued in effect until the conclusion of the instant divorce proceedings, resulting in the entry of the decree nisi on January 27, 1948. Prior to the entry of the decree nisi, counsel appeared before me on several occasions for the purpose of settling the decree. The last motion was heard by me on November 24, 1947. A transcript of the record on this motion is on file with the Clerk of this Court and should be included as part Of the state of the case.

An examination of the custody provisions embraced in the decree nisi will disclose that the provisions respecting •the custody of the child are almost identical to the provisions embraced in the final decree entered in the custody proceedings (docket 156/575). The changes which were advised were in accordance with the wishes expressed by the defendant through her solicitor; (viz.) that there be a greater degree of clarification and certainty respecting the name of days, dates, and holidays, for the purpose of avoiding the possibility of disputes and controversies. In this the court concurred.

Nothing has been brought to the attention of the court in the instant proceedings that would justify or move this court in taking the child away from the father and awarding her to the mother, or in any other manner altering the decree in its present form. The decree in the custody case, (docket 156/675) continued the custody of the child in the father as theretofore and conferred upon the mother the rights and privileges which she herself requested and approved.

This court concurred with both parents, that the best interests of the child were served by the entry of the decree in the previous custody suit and in the absence of proof to the contrary, the court was justified in adopting this decree substantially in toto and incorporating it in the decree nisi in the instant proceeding.