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

text:
    Essex County Circuit Court.
    FRANK GENDER, PLAINTIFF, v. ROBERT LEE RAYBURN, DEFENDANT.
    Decided October 20, 1937.
    For the plaintiff, Fast •& Fast.

    For the defendant, William P. Braun.

   Smith, Joseph L., C. C. J.

This comes upon a special appearance of the defendant for the purpose of moving to vacate and set aside the attempted service of process. The plaintiff and the defendant are both non-residents of the State of New Jersey, and were involved in an automobile accident in Somerset county, New Jersejo The accident is alleged to have occurred July 22d, 1935. Jurisdiction was acquired, or attempted to be acquired, bj service of process upon the commissioner of motor vehicles of the State of New Jersey, pursuant to chapter 69 of the laws of 1930 (Supp. Comp. Stat. 1925-1930, § 135-96a(l)) as amended by chapter 69 of the laws of 1933 {N. J. Slat. Annual 1933, § 135-96a(l)), and 'chapter 143 of the laws of 1936. N. J. Stat. Annual 1936, § 135-96a(l).

Prior to the amendment of 1936, the service of process upon a non-resident operator of an automobile, by service upon the commissioner of motor vehicles, was not available to a non-resident plaintiff. The 1933 act confines this right to institute suit in the courts of New Jersey against a nonresident operator of an automobile by service upon the commissioner of motor vehicles, to residents of the State of New Jersey only, and this was so declared in Charles v. Fischer Baking Co., 14 N. J. Mis. R. 18; 182 Atl. Rep. 30; affirmed, 117 N. J. L. 115; 187 Atl. Rep. 175. It is therefore clear that the plaintiff’s position would not have been tenable, prior to the 1936 amendment.

Under the 1936 amendment the right to sue a non-resident operator of an automobile in the State of New Jersey, by service of process upon the commissioner of motor vehicles, was extended, at least by implication, to non-resident plaintiffs, by omitting from the statute the words “resident of the State of New Jersey.” The defendant contends that the accident in question having occurred prior to the 1936 amendment, the amendment is not available to the plaintiff. The point is well taken. The very principle of chapter 69 of the laws of 1933, supra, and its amendment, is that a non-resident operator of an automobile, by accepting the privilege of operating an automobile in the State of New Jersey, and over its highways, designates the commissioner of motor vehicles as his agent for the acceptance of process in any civil suit or proceeding by certain named plaintiffs. Under the 1933 act, the class of plaintiffs above referred to is limited to residents of the State of New Jersey. By the 1936 act, this class is intended to include non-resident plaintiffs; the amendment of 1936 does not merely go to the remedy or the means of enforcing the right. It extends the agency defined in the 1933 act. It changes the contractual relationship which the non-resident operator of an automobile is assumed to enter into, by accepting the privileges of the use of the highways of New Jersey. In the Fischer Baking Co. case, supra, the court held that to disregard the restriction of the statute to residents of the State of New Jersey as plaintiffs, would be to substantially alter the statute; that it would be a twisting of the statute beyond its intent. And so, in the present instance, to hold that the 1936 act may operate retroactively and thus hold that the defendant by operating his automobile in 1935 is now held to have made the commissioner of motor vehicles his agent for the acceptance of process in a suit brought by a non-resident, when in fact at the time he was operating a car, under the statute then existing, he did not designate the commissioner of motor vehicles as such agent, would substantially alter the scope of the agency or the contractual relations originally imposed upon the defendant as of the time of the operation of the automobile.

In Young v. Potter Title and Trust Co., 114 N. J. L. 561; 178 Atl. Rep. 177, Mr. Justice Case, delivering the opinion for the Supreme Court, held that the statute cannot be extended to include as defendants, personal representatives of the person operating the automobile, upon the ground that upon the death of the person operating the automobile the agency terminated. Mr. Justice Case further said (at p. 566) :

“If the obligation upon Henry was contractual in its nature, then we must have some thought for the rules applicable to the construction of contracts. The question in one form or another has to be answered: What does the statute provide and to what did the non-resident assent? And this may be narrowed to an inquiry as to the statutory content because the non-resident assented only to that which is in the statute. In this study, we may reasonably expect that a legislative intent to change the settled law regarding suit against a nonresident executor will be adequately manifested.”

To apply the 1936 act retroactively, would be not only to change the remedy for the enforcement of a right already granted, but would substantially alter the agency which a non-resident operator of a car in the State of New Jersey creates by such operation.

The service of process, therefore, attempted under and by virtue of the laws of 1936, is void and will be set aside.


source: Caselaw Access Project

author: Lloyd, J.

license: Public Domain

text:
    JOHN A. SCHAIBLE, Jr., PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MILLBURN, COUNTY OF ESSEX AND STATE OF NEW JERSEY, RESPONDENT.
    Submitted August 2, 1937
    Decided October 4, 1937.
    Before Justice Lloyd, sitting alone by stipulation of the parties.
    Lor the prosecutor, Harry Silverstein.

    Lor the respondent, Beynier J. Wortendylce, Jr.

   Lloyd, J.

This is a zoning case and comes before me under a stipulation of facts and a further stipulation that a writ of certiorari be issued and determined by me sitting alone without formal return to the writ on the facts as stipulated.

The prosecutor is the owner of a warehouse in Millburn, Essex county, which in 1925, and thence until the present time has been used for the storage of building materials. It is now proposed to use one-third of the building as a warehouse for the “storage of lubricants in cases, cans and drums, which lubricants are used only in the automotive trade; no volatile oils or substances of any nature * * * to be kept on the premises; and no sales and deliveries * * * conducted at the premises.”

Application was made to the building inspector of the township of Millburn for a certificate of occupancy for the purposes named. This was denied and on appeal to the board of adjustment that body refused to overrule the action of the inspector. The writ is to review this action.

It is conceded in the stipulation that the proposed use is in violation of the municipal t ordinance.

Passing the propriety of the form of the present application, and in deference to the desire of the parties for a conclusion of the court updn the merits of the case, I proceed to determine what I conceive to be the rights of the parties.

The building as appears from the stipulation was in existence when the constitutional amendment known as the Zoning amendment was adopted and at the time of the passage of the act known as the Enabling act. Pamph. L. 1928, p. 705. The ordinance in question exists validly only in pursuance of this authority.

Section 11 of the Enabling act provides: “Any nonconforming use or structure existing at the time of the passage of the ordinance may be continued upon the lot or in the building so occupied.”

The question is whether the proposed use is of such a change in character as to constitute a new and different use from that existing at the time of the passage of the ordinance. My inclination is to hold that it is not, and that the case is controlled by North American Building and Loan Association v. New Brunswick, 117 N. J. L. 63.

Building materials normally consist not only of lumber, bricks, stone and iron, but of paints, varnishes and many other substances used in building construction. The building in the case before me like that in the cited case was used for storage purposes and storage purposes alone. It is true the materials stored are not continuously identical in the case sul judice; neither were they in the New Brunswick case. In the latter it was a change from the storage of sand and gravel and filling trucks therewith, to the storage of cheese and a like filling of trucks from time to time. In the present case it is a change from the storage of building materials to the storage of lubricating oils. We there held that it was within the rights protected by the act of 1928; so I think here the proposed use is likewise within those protected rights.

It is not shown that the variation in materials stored are more or less detrimental to the community or as materials to be stored more dangerous. What might be the situation if the storage contemplated were of explosives, volatile oils, even though subject to storage only, it is not necessary to pass upon. Storage it was and storage it is, without suggestion that the proposed use contemplates the storage of materials harmful to the community.

The action of the zoning board together with that of the building inspector will be set aside, with the direction to issue the certificate prayed for. No costs to be allowed to either side.


author: Flanagan, C. P. J.

text:
    Essex County Court of Common Pleas.
    ELLEN MERRITT, PETITIONER-APPELLEE, v. AMERICAN STEVEDORES, INCORPORATED, RESPONDENT-APPELLANT.
    Decided October 27, 1937.
    Eor the respondent-appellant, Joseph Weintmub.

    For the petitioner-appellee, William B. McMichael.

   Flanagan, C. P. J.

On July 11th, 1936, at nine-thirty A. m., Leonard Merritt died as a result of sunstroke received on the previous day while working for the respondent.

The petition is filed by his mother, Ellen Merritt, a partial dependent. The commissioner found in her favor and the appeal is by the employer, the American Stevedores, Incorporated, from his findings and award.

Leonard Merritt, a robust man of twenty-seven years, was a longshoreman, a member of a so-called “gang” of longshoremen, who were selected and gathered together by one Smith. Respondents are stevedores. The “Smith gang” were hired by the respondents through Smith to work with other “gangs” in unloading a lumber-carrying ship called the “Sage Brush” and the “gang” worked in that connection as a unit under Smith as their foreman on the job.

The custom was (as followed in the instant case) that when longshoremen were desired by respondent to unload a ship, word was conveyed through the labor union to as many heads of “gangs” as the circumstances required. These heads secured the men to come to the dock where they would be “checked in” by an employe of respondent and would go to work under the heads of their respective “gangs” as foremen.

July 10th, 1936, Leonard Merritt was working on the dock unloading the ship “Sage Brush.” The day was an excessively hot one, the thermometer in the shade on top of the post office building at Port Newark, near where the dock was located, registered from eighty-three degrees at eight A. M., to one hundred degrees at live p. m., the temperature rising almost constantly. On the dock the temperature was ten to twenty degrees higher than on top of the post office building in the shade. The dock was a large level concrete floor open to the sun. The sky was clear, or there was so little cloudiness as not to interfere with the rays of the sun. About eleven-thirty A. m. Smith noticed Merritt slowing up, his shirt was “awful wet,” he looked “awful hot,” and Smith told him to go and cool off but he did not do so and continued working the rest of the working day. Merritt was working placing “Koss” blocks weighing about twenty-five pounds each for “drafts” or large piles or bundles of lumber to rest on as they would be hoisted from the hold of the ship to the cement floor of the dock preparatory to being moved away by a mechanical device known as a Ross carrier. Drafts came over at the rate of sixteen or eighteen per hour. There were two drafts which had to be repiled and it was the duty of Merritt and his working mate to accomplish this by working as best they could between the comings over of “drafts” from the ship’s hold. The pieces of timber requiring to be piled were three inches by ten inches, about eighteen to twenty feet long, and weighed about one hundred and twenty-five pounds each: there were forty-two pieces in a draft.

Tt requires no expert to tell us that where a man works on a large flat surface of open concrete like a concrete dock he is subject to the direct rays of the sun, the reflected rays or radiated heat from the concrete, and that he breathes the hot air ascending from the surface upon which he is standing.

When Merritt had finished his day’s work he went home in a ear with a number of other men including his foreman, Smith. On starting lor home Smith noticed that Merritt’s eyes were sunken, that he remained quiet though usually jolly, and that one of the men remarked to him, “your eyes are sunk back in your head, look like dead.” When Merritt reached home he went to bed, the doctor was called shortly, he came and remedies were applied. In the morning the doctor was called again and while he was present Merritt died at nine-thirty a. m. from sunstroke. In consequence of Merritt’s failure to appear on July 11th, the next morning after he received the stroke, Smith procured another man to take his place. A few days later Smith acted as one of the pall bearers and was called to the home and told the cause of death.

The first objection raised on this appeal is that the deceased’s injury did not arise out of his employment.

The rule applicable is stated in Kauffeld v. G. F. Pfund & Sons, 97 N. J. L. 335 (at p. 336); 116 Ail. Rep. 487, as follows: “The rule is that when the employment brings a greater exposure than that to which persons generally in that locality are exposed, injury or death resulting therefrom, such injury or death does arise out of the employment.” I have no difficulty in concurring with the commissioner in his conclusion that this objection is not well taken, and that the instant case falls well within the rule quoted.

The next objection presents greater difficulty. It is that the employer had not “knowledge” of the accident within the statutory period. The observations of Merritt made by the foreman Smith on the 10th of July while he was working on the dock and while going home would require a reasonably logical individual to conclude under all the circumstances as a natural inference that Merritt had received an injury due to excessive heat while working on the dock. The failure of Merritt to show up for work on the following day (the 11th of July) would tend to confirm this conclusion in the mind of Smith. As to the ultimate outcome of that injury Smith would have no data upon which to base a conclusion.

“Knowledge” as referred to in the statute does not mean that the person in question must be in a position to give legal testimony oí his own knowledge proving the existence of the fact, nor does it mean that he must be in possession of legal' evidence of the fact from other sources; it means knowledge of the kind that people in general ordinarily regard and speak of as knowledge. A man may say, “I know Jones has been dead for some years past,” without having attended the funeral or viewed the corpse. What he means is that miscellaneous information and circumstances have engendered a belief to moral certainty in his mind that Jones is dead. I am of opinion that it is this kind of “knowledge” that the statute contemplates. Knowledge of such a kind that induces a state of mind in the reasonably well-balanced man that he consider he knows.

While Smith was not qualified to have knowledge and to testify that Merritt had received a stroke from which he was likely to die within a few hours, as a trained physician would have been under like circumstances, Smith was qualified to draw the inference that Merritt had received an injury. He had “knowledge” that Merrit had on July 10th, while working, received an injury in some degree from the excessive heat conditions to which he was exposed.

A few days after July 10th he was informed definitely that Merriit had died of sunstroke on the morning of the 11th of July but this circumstance should be disregarded as Smith was not at that time working for the respondent.

The question presented is this: Is the “knowledge” of the injtrred person’s foreman on the job of the injury, derived from his own personal observation to be regarded as the knowledge of the employer corporation?

Counsel for respondent seems to concede that knowledge of an injured man’s foreman would be imputed to an individual employer, but contends knowledge of a foreman cannot be imputed to a corporation employer. The respondent’s brief says: “It would be absurd to say that where the employer is an individual, knowledge on the part of some foreman is not binding upon the part of the employer, but in the case of a corporation the result is otherwise.”

The inquiry is whether or not under the Compensation act, humanely conceived for the benefit of the more or less uneducated laborer, he or his family after he is gone,- should be held to a greater burden than to bring home knowledge to the person with whom he is accustomed to deal in the corporation’s behalf.

It was the duty of Smith when he observed Merritt’s absence on the 11th of July to report what he knew to his superiors; can the neglect of the employe now be used as a shield by his employer?

I am of opinion that that question should be answered in the negative.

Support for this view is found in Roney v. Griffith Piano Co., 4 N. J. Mis. R. 31; 131 Atl. Rep. 686. In that ease the employe, Eoney, was a piano mover. One Peckham was the shipping clerk and one Penn “was in charge of the work” and was Eoney’s “immediate superior” which, I take it, means he was the foreman over the movers on the job. Judge Porter in his opinion says: “Penn was in charge of the work; he was a witness to the accident; saw Eoney knocked down when the piano fell; saw him hold his neck and heard him complain of his neck having been hurt. This notice to Penn, whether or not he reported it to Peckham, was, it seems to me, a compliance with section 15 of the statute.” Judge Porter uses the word “notice” but it is obvious from the context that it was the “knowledge” gained by Penn by observation to which he referred.

In Hornbrook-Price Co. v. Stewart, 118 N. E. Rep. 315, counsel contended that, under a somewhat similar statute in Indiana, “knowledge” could only be conveyed through a representative upon whom a summons could be served. The court said: “We cannot sustain counsel’s contention. The knowledge of the foreman under whose direct and immediate supervision appellee worked from day to day must be regarded as the imputed knowledge of the employer.”

The language of the New Jersey statute is “actual knowledge,” but as a corporation can have no knowledge except in so far as the knowledge of agents is imputed to the legal entity, the statute must contemplate actual knowledge of the agent imputed to the corporation.

In Fear Campbell Co. v. Yearion, 164 N. E. Rep. 282, decided in the Indiana Appellate Court, en banc, the foreman of the petitioning workman testified that shortly after the injury the workman showed him his leg and that “the skin looked like it was ruffled up maybe an inch and a half long down the hard bone of the leg.” The court said that “this testimony discloses actual knowledge of the said injury by the appellant through its foreman Pierce. It is evident that both Pierce and appellee did not regard the injury as being of the serious nature that afterwards developed, but this fact can in no way relieve the appellant. A workman had received an injury by accident, arising out of and in the course of his employment, and his foreman had knowledge of these facts and' should have reported the same to his superiors. His failure to do so cannot be charged against the appellee.”

There are other cases tending to support these views: Gibbons v. United Elec. Railways Co. (R. I.), 138 Atl. Rep. 175; Lachance’s Case (Me.), 118 Id. 370; Simmons’ Case (Me.), 103 Id. 68; In re Bloom (Mass.), 111 N. E. Rep. 45; Coline Oil Co. v. Winters (Okla.), 8 Pac. Rep. (2d) 675; Mumford v. State Highway Commission (N. M.), 1 Id. 115; Tennessee Coal, Iron and Railroad Co. v. Pope (Ala.), 107 So. Rep. 735; Leadbettor v. Industrial Accident Commission (Cal.), 117 Pac. Rep. 449; Western State Gas and Elec. Co. v. Bayside Lumber Co. (Cal.), 187 Pac. Rep. 735.

The commissioner found that Merritt contributed $20 per week to petitioner’s support and based his award on that conclusion. It seems to me that the commissioner lost sight of the fact that Merritt derived some return benefits from this contribution in the form of meals and lodging for himself. In my opinion a fairer figure would be $15 per week as Merritt’s net weekly contribution. Except for this I am in accord with the findings of the commissioner.


author: Heeb, A. M.

text:
    Augusta Goodman, petitioner, v. Philip Goodman, defendant.
    [Decided November 15th, 1937.]

      Mr. Charles M. Grosman, for the petitioner.

      Messrs. Isserman & Isserman, for the defendant.
   Heeb, A. M.

On June 15th, 1931, petitioner secured a decree of absolute divorce against defendant in the Supreme Court of the State of New York. Both parties were then domiciled in that state. The decree included an order granting to her the custody of an infant son of the marriage and an allowance of $15 per week for his support. In November, 1934, the order was modified by reducing the allowance to $7 per week. This reduced allowance has since been paid by defendant without default. Petitioner and the child remain domiciled in New York, but defendant now resides in New Jersey and has been personally served here with process in this suit.

The petition alleges three causes of action. In the first count the petitioner seeks to recover a lump sum for alleged arrearages under the 1931 decree, at the rate of $8 per week from December, 1934, charging that the order reducing the allowance was based upon defendant’s fraudulent misrepresentation that ho was unable to pay the allowance originally fixed. Under the second count she seeks the decree of this court for the payment of a $15 per week allowance in futuro, and (as an additional cause of action) the sum of $437.70 for medical and hospital expenses heretofore incurred by her for the benefit of the child.

The matter now comes before the court upon motion of the defendant to strike the petition, on the ground that this court is without jurisdiction over any one of the alleged causes of action.

In my judgment, the first count sets up no cause of action of which this court has jurisdiction. Assuming that the order reducing the allowance was entered as the result of such fraud as to require that it be vacated, it is not fraud upon the jurisdiction, but intrinsic, inhering in the cause itself, and not legally a basis for collateral attack. Wilson v. Anthony, 72 N. J. Eq. 836; 66 Atl. Rep. 907; 32 L. R. A. (N. S.) 905, note; 88 A. L. R. 1201, note. Even if petitioner might be heard here to impeach the order of the New York court it would not avail her, for the reason that the mere vacation of the order could not operate retroactively so as to reinstate defendant’s obligation to pay the full $15 per week allowance fixed by the original decree. Nothing short of a positive and unequivocal adjudication to that effect could accomplish such a result. Sistaire v. Sistaire, 218 U. S. 1, 22; 54 L. Ed. 905; 30 S. Ct. 682; 28 L. R. A. (N. S.) 1068. Such an adjudication can be made only by the New York court. Royal Arcanum v. Carley, 52 N. J. Eq. 642, 649; 29 Atl Rep. 754.

The jurisdiction of the New York court has not been divested because of the removal of the defendant’s residence to New Jersey. It may grant relief to the petitioner on notice to the defendant outside of the state. White v. White, 65 N. J. Eq. 743, 747; 55 Atl. Rep. 739; Dixon v. Dixon, 72 N. J. Eq. 588, 592; 66 Atl. Rep. 597; Dunn v. Clarke, 8 Pet. (U. S.) 1; 8 L. Ed. 845; 15 C. J. 822. If she secures a deficiency decree in that court she may bring suit at law thereon in New Jersey. Bullock v. Bullock, 57 N. J. Law 508; 31 Atl. Rep. 1024; Kossower v. Kossower, 142 Atl. Rep. 30.

Petitioner’s second cause of action is premised upon section 6 of the Minor’s act of 1902 (2 Comp. 8tat. p. 2809), as amended in 1936 (P. L. 1936 ch. 247; N. J. 8tat. Annual 1986 § 97-18), and upon section 25 of the Divorce act. P. L. 1988 ch. 145; N. J. Slat. Annual 1983 § 62-85. Jurisdiction under section 6 of the Minors’ act is predicated upon the child’s being an inhabitant of this state. It is apparent from an inspection of the petition that the child is not an inhabitant of New Jersey, but of New York. Hence no cause of action under the Minors’ act is presented.

May the second count of the petition be retained as a suit for the maintenance of the child under section 25 of the Divorce act? In Noel v. Noel, 15 N. J. Mis. R. 576; 19. Atl. Rep. 558, this court held that where there has been no adjudication with respect to alimony, an ex-wife who has secured her divorce in a foreign tribunal may maintain an independent suit for alimony in New Jersey under section 25 of the Divorce act, upon personal service of process in this state. Although in that case the husband was under contract to maintain his wife, her suit was based not upon the contract but upon the defendant’s obligation arising out of the past marriage status. The decree rested upon that obligation, not upon the contract. Does the fact that the New York court has made a maintenance award in petitioner’s favor take this case out of the rule established in the Noel Case? So far as this question is concerned there is no distinction to be made between alimony for the wife and maintenance for the children. Ziesel v. Ziesel, 98 N. J. Eq. 153, 157; 115 Atl. Rep. 435; Hatch v. Hatch, 15 N. J. Mis. R. 461, 466; 198 Atl. Rep. 241.

Whatever may have been the extent of the father’s common law duty to provide for his children (see Murphy v. Murphy, 102 N. J. Eq. 552, 554; 141 Atl. Rep. 774; Meier v. Planer, 107 N. J. Eq. 398, 402; 152 Atl. Rep. 246; Maloney v. Maloney, 12 N. J. Mis. R. 397, 408; 174 Atl. Rep. 28; Cf. Freeman v. Robinson, 38 N. J. Law 383), his liability is established by statute in this state. In proceedings brought by the wife or ex-wife under the Divorce act she may be awarded an allowance for the support of the children of the marriage in her custody, under the conditions prescribed in sections 25 and 26. Taken together, those sections establish a single legislative plan for the enforcement of the husband’s obligation to support his wife (or his ex-wife who has divorced him) and the children of the marriage in her custody. No domiciliary or residential conditions are prescribed. So far as jurisdiction over the defendant is concerned, the cause of action differs in no respect from a creditor’s cause of action for the collection of an ordinary debt. Noel v. Noel, supra. It has long been established that separate maintenance may be decreed under section 26 of the Divorce act to a wife who has secured a foreign decree of divorce a mensa et thoro, containing a maintenance provision. Freund v. Freund, 71 N. J. Eg. 524, 68 Atl. Rep. 756; affirmed, 72 N. J. Eg. 943; 73 Atl. Rep. 1117; Tehsman v. Tehsman, 93 N. J. Eq. 76; 114 Atl. Rep. 320; affirmed, 93 N. J. Eg. 422; 117 Atl. Rep. 34. In each of these cases, it is true, the husband had completely failed to comply with the foreign maintenance order, but upon reason the same result would have followed if his failure had been partial, or if through changed circumstances the provision made by the foreign court had become inadequate. The same reason applies to proceedings brought under section 25 of the Divorce act: the decree of the foreign court, being subject to future modification, is not in the nature of a final judgment.

The common law obligation of a man to support his wife follows him wherever he goes, and if he comes to New Jersey he is liable also for the support of his children under our statutory provisions. If this court secures jurisdiction over his person, or seizes his property located in this state, it may enforce both of these obligations, against his person or his property as the ease may be, whether wife or children be domiciled in New Jersey or elsewhere. “State boundaries do not make court barriers.” Gasteiger v. Gasteiger, 5 N. J. Mis. R. 315, 317; 136 Atl. Rep. 497. These obligations, as such, persist independently of any order or decree fixing their measure, just as they exist independently of a contract. They do not merge into such an order or decree so as to lose their identity as primary obligations, in the sense that a debt becomes merged into a judgment. Because of the continuing nature of the obligations, orders and decrees for their liquidation and enforcement are of but temporary application. They do not create or even modify the obligations, but merely have to do with their enforcement. Lynde v. Lynde, 64 N. J. Eq. 736, 751; 52 Atl. Rep. 694; Dietrick v. Dietrick, 88 N. J. Eq. 560, 561; Maloney v. Maloney, supra.

The petition filed in this cause alleges facts sufficient to show a change of circumstances of the parties since the time of the entry of the New York decree. If the decree had any res judicata effect with respect to the amount of the award, such effect did not survive a substantial change in the circumstances of the parties after its entry, so that the petitioner is not foreclosed in her action under the doctrines of res judicata or election of remedies. See In re Erring, 109 N. J. Eq. 294; 157 Atl. Rep. 161; Freund v. Freund, supra; Tehsman v. Tehsman, supra. Nor does the fact that the defendant may presently be complying with the New York order of November, 1934, operate to prevent the vesting of concurrent jurisdiction in this court to make an award, greater than that originally fixed if present circumstances require it.

Ought this court to exercise its concurrent jurisdiction under the circumstances presented by the petition? It is under no legislative mandate to do so. Hatch v. Hatch, supra. If the circumstances of the case do not require its exercise, considerations of comity and propriety will move the court to decline to entertain a suit when a foreign court has first assumed jurisdiction of the subject-matter. But in the instant case the fact that the New York court cannot carry its orders into effect because of defendant’s removal from the state is a practical circumstance justifying the exercise of this court’s concurrent jurisdiction. If the petitioner were forced to seek relief in the New York court, she could not compel obedience to its orders except by bringing a second proceeding against him wherever he can be reached with process of execution. Equity is reluctant to encourage a multiplicity of suits. Furthermore, and more important, the petitioner would be unable to execute her award in New Jersey, even after bringing her suit here, except by process against the defendant’s property, if he have any. She could not execute it against his person, because her New York award would be in. the nature of a simple debt when sued upon in New Jersey and a judgment thereon would be unenforceable by proceedings in contempt (Aspinwall v. Aspinwall, 53 N. J. Eq. 684, 686; 33 Atl. Rep. 470), and because, since she is no longer the defendant’s wife, her New Jersey action would lie only in the law courts. Since this court can afford petitioner, in her present proceeding, more direct and effective relief than the New York court is able to extend to her under present conditions, it is fully justified in assuming jurisdiction of this suit. Hatch v. Hatch, supra.

Petitioner’s additional claim for payment of medical and hospital charges heretofore incurred by her for the child’s benefit, if it be a valid claim (see Murphy v. Murphy, supra) is within the jurisdiction of the New York court. This court has no power to grant relief for the reason that the obligations were incurred before the commencement of this suit. If the New York court awards petitioner a judgment, ancillary relief may doubtless be extended to her in an action at law in this state.

No point is made of the fact that petitioner has attempted to invoke the jurisdiction of the court by petition instead of by bill. In the absence of statutory authorization the original jurisdiction of this court in adversary cases must be invoked by bill. No such statute applicable to the present instance has been brought to the court’s attention. The Divorce act (section 10) provides that suits for divorce and nullity under the act shall be commenced by petition. A plenary suit for alimony or maintenance under section 25 or 26 is not within this statutory provision. The present proceeding by petition is therefore erroneous, and would have to be dismissed were it not for the fifth section of the Chancery act of 1915 (P. L. 1915 ch. 116), which provides that the court may order proper amendments to be made. In re Kiger, 98 N. J. Eq. 512; 131 Atl. Rep. 95; Grobholz v. Merdel Mortgage Investment Co., 115 N. J. Eq. 411, 423; 170 Atl. Rep. 815.

The petition may be amended accordingly into a bill for the present maintenance of the child under section 25 of the Divorce act. In all other respects the motion to strike will prevail.


author: Jayne, S. C. O.

text:
    FREDERICK CAMPBELL, JULIAN M. STRICKLAND, GEORGE EWELL, FRANCIS J. DOHERTY AND NELSON DOHERTY, PLAINTIFFS, v. THE PURE OIL COMPANY, DEFENDANT.
    Decided November 12, 1937.
    For the plaintiffs, Garrison & Weaver and John A. Miller.

    For the defendant, Bolle ■& Miller.

   Jayne, S. C. O.

This motion is addressed to the complaint. The reason assigned in support of the motion is that the complaint fails to allege a cause of action. In the consideration of a motion of this nature all of the facts adequately alleged in the complaint must be accepted as true, 'as well as all inferences of fact which can be logically and legitimately drawn from them. Crawford v. Winterbottom, 88 N. J. L. 588; 96 Atl. Rep. 497; Koewing v. West Orange, 89 N. J. L. 539; 99 Atl. Rep. 203. Such a motion under modern practice (Supreme Court rule 40) has merely been substituted for the general demurrer at common law. Savage v. Public Service Railway Co., 95 N. J. L. 432; 113 Atl. Rep. 252.

Concisely stated, the complaint alleges that on July 16th, 1937, and for a long time prior thereto, the defendant maintained at the southeast comer of Virginia and Drexel avenues in the city of Atlantic City certain gas and oil tanks, pumps, pipes and other apparatus for the. storage of gasoline, kerosene and lubricating oils. On the date mentioned a fire originated in and about the pumping plant on the premises of the defendant. The plaintiffs were firemen and were summoned to extinguish the fire or to arrest its progress. While the plaintiffs were endeavoring to protect adjacent properties from damage, a sudden and unexpected explosion occurred which caused them bodily injury. It is alleged that the defendant had negligently permitted large quantities of oily, greasy and gaseous substances of a highly inflammable and combustible nature to accumulate on the premises in the vicinity of its pump house and tanks and had permitted its tanks and storage containers to become out of repair so that the contents could escape from them. Additionally it is alleged that the storage tanks were not encircled by an embankment or dike and were not equipped with fire protecting and safety devices as required by an existing ordinance of the city. It is averred that the plaintiffs were wholly unaware that oily and gaseous substances had been permitted to saturate the premises in the vicinity of the pump house and tanks, and were ignorant of the defective condition of the storage tanks and of the failure of the defendant to equip them with the required devices. It is to be inferred that these conditions which were unknown to the plaintiffs proximately occasioned the unanticipated explosion. The present motion can therefore be considered in the light of these recited facts.

The complaint also embodies a general allegation that the explosion and resultant injury to the plaintiffs were proximately caused by the negligence of the defendant. Incidentally it may be aptly stated that at the common law a general allegation of negligence in the declaration was sufficient as against a general demurrer. Central Railroad Co. ads. Van Horn, 38 N. J. L. 133, 140; Breese v. Trenton Horse Railroad Co., 52 Id. 250, 253; 19 Atl. Rep. 204; Race v. Easton and Amboy Railroad Co., 62 N. J. L. 536, 539; 41 Atl. Rep. 710; Minnuci v. Philadelphia and Reading Railroad Co., 68 N. J. L. 432, 434; 53 Atl. Rep. 229; Savage v. Public Service Railway Co., 95 N. J. L. 432; 113 Atl. Rep. 252; De Voe v. Delaware, Lackawanna and Western Railroad Co., 112 N. J. L. 35; 169 Atl. Rep. 637.

At the argument of this motion counsel for the defendant particularly emphasized the contention that the only duty owed by the landowner to a fireman who in the pursuit of his duty enters the premises to abate a fire, is to abstain from acts willfully and wantonly injurious to the fireman. This subject received judicial consideration in the following cases: Smith v. Twin State Gas and Electric Co. (N. H.), 144 Atl. Rep. 57; Clark v. Boston and Maine Railroad (N. H.), 101 Id. 795; L. R. A. 1918A, 518; Lamb v. Sebach, 3 N. E. Rep. (2d) 686 ; 52 Ohio App. 362; Maloney v. Hearst Hotels Corp., 8 N. E. Rep. (2d) 296; 274 N. Y. 106; Meiers v. Fred Koch Brewery, 127 N. E. Rep. 491; 229 N. Y. 10; Pinson v. Young (Kan.), 164 Pac. Rep. 1102; O’Leary v. Houston Belt and Terminal Railway Co., 136 S. W. Rep. 602; Ralhbun v. White (Cal). 107 Pac. Rep. 309; Mdworth v. F. W. Woolworth Co. (Mass.), 3 N. E. Rep. (2d) 1008, and cases therein cited.

The factual circumstances alleged in the present complaint do not project for decision the question relating to the legal status of the plaintiffs upon the mere assumption that they were upon the premises of the defendant. But see Barnett v. Atlantic City Electric Co., 87 N. J. L. 29, 31; 93 Atl. Rep. 108. There is no allegation that the plaintiffs were on the property of the defendant when injured. The averment is that they were engaged in protecting adjacent properties. It was stated by counsel at the argument that the evidence to be submitted under the complaint would disclose that the plaintiffs, when injured, were on the public street. Therefore it is essential to here recognize the distinction between the more usual case of negligence in which the basic duty involved is the duty to abstain from acts of commission or omission which may be reasonably expected to wrongfully cause injury to another, and the case in which a positive duty created by law or the situation of the parties is alleged to have been ignored.

It is elementary that one who utilizes one’s property for the storage of relatively large quantities of highly inflammable or explosive substances or materials must exercise a degree of care commensurate with the risks and dangers to be reasonably anticipated in such an undertaking. This basic duty must be observed for the safety of others. The complaint alleges a failure on the part of the defendant company to observe this duty. Gilroy v. Standard Oil Co., 107 N. J. L. 170, 174. It may be inferred from the limited statement of facts in the complaint that the alleged negligent accumulation of inflammable substances around the closely located pump house and tanks and the defective state of the storage tanks not only created dangerous conditions which according to common knowledge and experience would be likely to cause instantaneous injury, but that it was such dangerous conditions that proximately caused the explosion.

It is argued that in the circumstances disclosed by the complaint, it is apparent that the plaintiffs were guilty of contributory negligence and voluntarily assumed the very risks and dangers from which their injuries resulted. It will be noticed that in one of the counts of the complaint the conditions therein described are alleged to have constituted a nuisance. The availability of the defense of contributory negligence depends upon the character of the nuisance. Hammond v. Monmouth Co., 117 N. J. L. 11 ; 186 Atl. Rep. 452. The contributory negligence of the injured person is not in general to be presumed. It is to be averred and established by proof as a matter of defense. It is an affirmative defense which the defendant must plead or it must be otherwise drawn in issue by the pleadings in the action. Durant v. Palmer, 29 N. J. L. 544; Dragan v. Grossman, 116 Id. 182; 182 Atl. Rep. 848. Counsel for the defendant, however, has very earnestly contended that the complaint in the present action discloses circumstances which of themselves would impute to the plaintiffs contributory negligence or assumption of risk as a matter of law. It seems that at the common law if the declaration definitely and specifically alleged acts which clearly constituted contributory negligence on the part of the plaintiff, a demurrer might be properly interposed. 5 Enc. Plead. & Prac. 10. To sustain such a demurrer it must clearly appear that the alleged act of the plaintiff did as a matter of law, constitute contributory negligence. It is not therefore amiss to point out that one who exposes himself to a known danger is not, ex necessitate, guilty of negligence. The test is whether an ordinarily prudent person would, in the same or like circumstances, have incurred the risk which such conduct involved; and where fair minded men might honestly differ concerning whether the conduct was such as an ordinarily prudent person would have pursued in such existing circumstances, the problem must be solved by the trier of the facts. Pesin v. Jugovich, 85 N. J. L. 256; 88 Atl. Rep. 1101; Solomon v. Finer, 115 N. J. L. 404; 180 Atl. Rep. 567.

It cannot in reason be stated that a fireman has no protective rights whatever while engaged in the pursuit of his employment. It is contemplated that a fireman in the performance of his duty shall endeavor to extinguish fires however caused and encounter those risks and hazards which are ordinarily incidental to such an undertaking and which may be reasonably expected to exist in the situation in which he places himself. It does not follow that a fireman must be deemed as a matter of law to have voluntarily assumed all hidden, unknown and extra-hazardous dangers which in the existing conditions would not be reasonably anticipated or foreseen. It w'as the duty of the plaintiffs to exercise reasonable care and prudence for their own safety in the performance of their duty as firemen. The mere fact that it now appears that the plaintiffs imperiled their personal safety in rendering the service required by their employment, does not conclusively establish their contributory negligence as a matter of law. Their conduct must be viewed in the light of the conditions and circumstances then existing. In the absence of some notice or knowledge, circumstantial or otherwise to the contrary, the plaintiffs had a right to presume that the defendant had complied with the applicable provisions of the ordinance of the city. Pesin v. Jugovich, supra. Although those who voluntarily pursue employments necessarily fraught with danger are taken to assume such risks and dangers as are normally and necessarily incident to the occupation, they are not treated as assuming obscure and unknown risks, which are not naturally incident to the occupation and which, in the existing conditions, would not be reasonably observed and appreciated. Recognizing the difference between assumption of risk and contributory negligence (Seaboard Air Line Railway Co. v. Horton, 233 U. S. (at p. 504); concurring opinion of Mr. Justice Heher in Harenburg v. August, 119 N. J. L. (at p. 85); 194 Atl. Rep. 152, the bare facts alleged in the complaint do not justify the conclusion, as a matter of law, that the plaintiffs either knowingly assumed the risk resulting in their injury or were guilty of contributory negligence.

The allegations of the complaint are legally sufficient to withstand the present motion. The motion will therefore be denied to the end that all of the true and actual circumstances surrounding the occurrence of the explosion may be fully disclosed and the conduct and situation of the plaintiffs may be more definitely indicated by testimony introduced at the trial.


author: John C. Wegnee, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WALTER WEBER, PETITIONER, v. CHARLES BRANDT, RESPONDENT.
    Decided November 19, 1937.
    For the petitioner, Louis Hoberman.

    For the respondent, Wall, Haight, Carey & Hartpence (by Charles J. Gormley).

   In the above entitled cause, determinations and rule for judgment were signed under date of January 18th, 1935, wherein and whereby it was determined that the petitioner met with an accident arising out of and in the course of employment with the respondent; that the petitioner’s wages amounted to $14 per week and that on December 27th, 1933, the petitioner, while cleaning a rabbit, cut his finger and an infection set in and caused a fever, disabling in character, and that the petitioner was thereby temporarily disabled from said infection with a disease known as tularemia; his disability was from December 27th, 1933, to August 1st, 1934, a period of thirty-one weeks, but petitioner suffered no permanent disability from said accident.

On'March 6th, 1936, a petition for increased disability was filed, wherein the petitioner alleged that he is still disabled and that it is believed that the ailment is a result of the aforesaid accident, and has left a permanent impairment of petitioner’s physical condition.

The respondent denied that the petitioner was suffering from any increased temporary disability and that there was no permanent disability.

This matter came on for hearing before me under dates of October 20th, 1937, October 27th, 1937, and November 3d, 1937.

Dr. Sigmund C. Braunstein testified that he examined the petitioner on February 15th, 1936, and treated him from that date until February 27th, 1937, and that during that time he had a painful swelling on the left side of his neck. He further testified that the petitioner had a temperature and he attempted to make a diagnosis “as to what the swelling was due to” and “having a previous history of tularemia,” it was the doctor’s opinion that the said swelling was due to a recurrence of tularemia. The doctor further stated that “from the history in this case,” in his opinion, the petitioner suffered a twenty per cent, total disability.

The petitioner produced Dr. Louis Schneider, the attending physician, who originally diagnosed the petitioner’s condition as “tularemia” and who, at the original hearing, stated there was no permanent disability. The doctor continued to treat the petitioner and now states there is an existing disability of twenty to twenty-five per cent, of permanent total, and indicated that the estimate is based on a neurosis. Dr. Schneider is not a neurologist.

Dr. Louis Schneider was also the petitioner’s attending physician in the medical care and attention given the petitioner when he sustained injuries in an accident between a Public Service Company bus and an automobile that was driven by him, and wherein the symptoms, as indicated by the petitioner, were recurring headaches, dizziness, inability to open the left eye, tenderness over the scars on the face and head. These symptoms are also included in the doctor’s testimony as a result of the alleged tularemia.

Petitioner also produced Dr. Arthur M. Kraut, a neurologist and psychiatrist, who made three examinations and objectively found very little organic disturbances, but his examination revealed a suggested “Babinski,” and stated that in his opinion the petitioner was suffering a disability of fifteen to twenty per cent, of total, and based his conclusions upon the fact that the petitioner could not “cope with environment and get along as other individuals.”

The petitioner further stated on cross-examination that he now feels the same as he did at the time of the original hearing.

For the respondent Dr. Edgar W. Eoberts stated that on October 21st, 1935, he examined the petitioner for the disability received as a result of the above mentioned accident of July 28th, 1935, and stated that in his opinion the petitioner had suffered a concussion of the brain at the time of the accident and that headaches and dizziness would continue as a result thereof for a long time.

For the respondent, Dr. Jack Blumberg, a neurologist, stated that in his opinion there was no evidence to indicate that the petitioner’s existing disability is in any way attributable to the alleged recurrence of tularemia, but the condition is the result of the aforesaid automobile accident wherein the petitioner was injured.

After careful consideration of the facts presented in this case, and from my observations of the petitioner, I am of the opinion that the petitioner’s disability is not the result of tularemia or recurrence thereof.

I, therefore, find that the petitioner has failed to establish an increased disability as the result of the alleged accident of December 27th, 1933, and he is entitled to no further or additional compensation.

John C. Wegnee, Referee.


author: Buchanan, Y. C.

text:
    The New Brunswick Savings Institution, a corporation, complainant, v. City of New Brunswick, a municipal corporation, defendant.
    [Decided November 19th, 1937.]

      Mr. Paul W. Swing, for the complainant.

      Mr. Thomas H. Ilagerly, for the defendant.
   Buchanan, Y. C.

This is a bill to quiet title with regard to certain lands in New Brunswick. The jurisdictional facts are duly proven or admitted.

The premises in question were owned by John M. Arniel and George C. MacPherson, and had been by them mortgaged to complainant. On the foreclosure of that mortgage, complainant purchased and became the grantee of the said premises under deed from the sheriff on October 10th, 1934; and ever since has been in peaceful possession thereof and is still the owner thereof.

The defendant municipality owns and conducts a municipal water works from which it supplied water to the former owners Arniel and MacPherson between April 1st, 1930, and January 1st, 1934, for the total charge of $1,771.55. Purther water was furnished between January 1st, 1934, and October 1st, 1936, at a total charge of $565.30. No part of either of these sums was paid by Arniel and MacPherson or complainant or anyone else.

The defendant municipality claims a lien or liens upon the premises in question for these unpaid water rents and interest thereon, under and by virtue of sections 11 and 12 of article XXXII of the act concerning municipalities, — P. L. 1917 ch. 15.2 p. 319 at p. J/36. Those sections, — or the pertinent portions thereof, — provide as follows :

“Sec. 11. The owner of any * * * building- or lot shall each be liable for the payment of the price or rent * * * for the use of water by such owner or by the occupier, * * * and such price or rent * * * shall be a lien upon said * * * building- or lot, until the same shall be paid and satisfied. * * *
“See. 12. * * * If any water rent or rents or other charges shall remain unpaid and in arrears for six months, the officer or board charged with the duty of the collection thereof shall file with the officer charged with the duty of the collection of tax arrears a statement showing such arrearages, and from the time of such filing the said water rent or rents or other charges shall be a lien upon the land and buildings to which said water was furnished, * * * to the same extent as taxes are a lien upon lands in said municipality, and shall be collected and enforced by the same officers and in the same manner as liens for taxes are enforced and collected.”

No statement was filed by the water board (in respect of the water rents between April 1st, 1930, and January 1st, 1934, amounting to $1,771.55) until January 2d, 1934, when a statement was filed with the tax collector for the arrearages in the amount aforesaid for the period aforesaid. Subsequently, on July 1st, 1934, October 1st, 1935, January 2d, 1936, April 1st, 1936, July 1st, 1936, and October 1st, 1936, statements of arrearages were filed with the tax collector for the arrearages due to the said city on the respective dates last mentioned, — each of which statements included the arrearages of $1,771.55 due to the city for the water furnished between April 1st, 1930, and January 1st, 1934.

Under the municipal ordinance, water rents became due and payable on the first days of January, April, July and October in each year.

Complainant does not question the lien of the defendant for the water rents which accrued subsequent to January 1st, 1934, totaling $565.30, and has tendered to the defendant that amount together with interest. The defendant has refused to accept such tender, claiming lien for the further amount of $1,771.55 with interest.

The only issue involved in the present case is whether or not the defendant has a valid lien against the premises for the $1,771.55 and interest in question. Concededly the determination of this issue depends solely upon the provisions of the statute hereinbefore quoted and the true interpretation of such statutory provisions.

It is the contention of the defendant that under the provisions of section 11, a complete and valid lien is given and arises simply and immediately upon the incurring of indebtedness for water and non-payment thereof. For the purposes of determining the present ease, it is not necessary to go so far as to concur in this contention. It may be assumed that the contention of complainant is correct, — that section 11 gives only an inchoate lien which does not become complete unless and until the statement of arrearages be filed with the tax collector as provided in section 12.

It is concluded, however, that such lien does become valid and complete upon the filing of such statements in accordance with section 12.

The real dispute between the parties comes down to this,— that complainant contends that the lien does not become valid and complete unless the statements of arrearages are filed with the tax collector every six months; that unless a statement is filed every six months for the arrearages due for the six months immediately preceding, no valid lien is, nor can be thereafter, acquired for that particular six months of arrearages ; that the city therefore has no valid lien or claim against the premises for the water rents for the period from April 1st, 1930, to January 1st, 1934, or at any rate for the period from April 1st, 1930, to July 1st, 1933, because ño statement of arrearages for water rents accruing during that period were filed until January 2d, 1934.

In that contention this court cannot concur. Such is not the meaning and intent of the statute either as expressly set forth or as necessarily or naturally to be implied.

True it is that section 12 directs that if water rents be unpaid and in arrears for six months, the officer or board charged with the duty of collection thereof shall file with the tax collector a statement of such arrearages; but clearly this does not comprise nor imply the result that unless the statement of arrearages is filed immediately upon the expiration of the six months period, no lien can thereafter be perfected by the filing of such statement. The provision in question sets forth a duty imposed upon the water board or officer, and for neglect or violation of this duty, doubtless the board or officer might become liable to the city for some penalty, or damages. It further seems to operate to provide the times to which, and the periods for which, valid perfected liens may be obtained by the filing of statements. In the absence of such provision, there would be nothing to indicate when or for what period the inchoate lien might be perfected into an actual lien. But there is nothing whatever in the statutory provisions to indicate an intent that if the statement were not' filed promptly at the expiration of every six months period, no valid perfected lien could be thereafter obtained.

If, during the period in question, the complainant as mortgagee had made inquiries at the tax collector’s office from time to time, and by reason of learning that no statements of arrearages had been filed, had relied upon the assurance thus given that no such liens existed, and in consequence of such reliance had refrained from foreclosing its mortgage, there might well be some ground for argument that an equity or estoppeL had thereby arisen in favor of the complainant, against the subsequent claim by the city to the validity and enforceability of its lien. No such situation, however, exists in the instant case. There is neither proof nor intimation that the complainant was in any wise misled to its detriment by the fact that the statements of arrearages were not filed every six months.

It is concluded that the city’s claim to valid lien for the entire amount of the arrearages is correct.


author: Melko, D. C. J.

text:
    Perth Amboy District Court.
    CHARLES BLITZER, PLAINTIFF, v. EMMA A. BURNS, DEFENDANT.
    Decided December 15, 1937.
   Melko, D. C. J.

Plaintiff sues for commissions due him as a real estate broker on agreement, copy of which is as follows:

“Perth Amboy, FT. J., Jan. 26, 1937.

In consideration of One Dollar, the receipt of which is hereby acknowledged — hereby give to “C” Blitzer, Agent, the exclusive authority and agency to sell my property located at 94 Jefferson Street, Perth Amboy, FT. J., subject to the following terms and conditions:

Price. . . $4,000.00.

Cash on delivery of deed $500.00 and $2,700.00 Home Loan mortgage to remain as is and balance to be left and remain as 2nd mortgage at 6%.

I agree to pay “C” Blitzer, Agent, a commission of $175.00 of above price or other sum or terms as accepted for selling the above mentioned property. This option holds good for 60 days from this day and date. I will deliver a warranty deed free and clear of all encumbrances.

Emma A. Burns.

Charles Blitzer.”

Although no formal contract of sale was entered into, it appears that plaintiff produced a buyer who was ready, willing and able to purchase the premises in accordance with the aforesaid agreement. On behalf of the defendant it was testified that she did not have title to the premises in question but owned a life estate and that this was known to the plaintiff who denied having such knowledge.

It further appears that a time was fixed for the passing of title, at which time one of the executors refused to sign because of the second mortgage provided for in the contract. It further appeared that although a formal contract was not signed by the buyer, he was represented at the time fixed and he was ready, willing and able to proceed according to the terms of the agreement.

It appears that the title to the premises in question was vested in the estate of James Burns, deceased, and that one of the executors of the estate declined to consummate the agreement as entered into by the defendant.

A party who by a valid contract employs a broker to procure a satisfactory purchase for lands on stated terms, cannot escape the payment of the established commissions to the broker who has accomplished what he has been employed to do upon the ground that such party was not the “owner” but had only a partial or contingent interest therein. J. I. Kislak, Inc., v. Judge, 102 N. J. L. 506; 133 Atl. Rep. 74; Kruse v. Ferber, 91 N. J. L. 470; 103 Atl. Rep. 409; Taub v. Shampainier, 95 N. J. L. 349; 112 Atl. Rep. 322.

A written contract for sale of property for which broker procured purchaser is not essential to- entitle broker to recover commissions. Calabrese v. Adelman, 7 N. J. Mis. R. 406; 145 Atl. Rep. 635.

Judgment is therefore entered for the plaintiff for $175.


author: Caeerey, C. C. J.

text:
    Bergen County Circuit Court.
    NEW YORK CREDIT MEN’S ASSOCIATION, A NEW YORK CORPORATION, PLAINTIFF, v. ELLIOTT ROTHENBERG, DEFENDANT.
    Decided October 25, 1937.
    For the plaintiff, Adolph Schleswig er (by L. Stanley Ford).

    For the defendant, Herman Greenstone.

   Caeerey, C. C. J.

This is an action brought by the New York Credit Men’s Association, a New York corporation having its office in the city of New York, against the defendant, Elliott Eothenberg, a resident of Teaneck, in the county of Bergen, and this suit arises out of a contract of guaranty entered into by the parties hereto and also signed by Elliott’s Chemists, Incorporated.

The complaint contains two counts. The first count avers the making on May 1st, 1934, of a note by Elliott’s Chemists, Incorporated, a New Jersey corporation, its endorsement by the defendant, presentment at maturity and non-payment. It is also alleged by the plaintiff that notice of protest was “forthwith given to the endorser thereof, the said Elliott Eothenberg.” The copy of the certificate of protest attached to the complaint refers to the maker as Elliott’s Chemists, Incorporated, by Elliott Eothenberg, president, and to the defendant (endorser) as Elliott Eothenberg. The original certificate of protest recites that notice of protest was given (in so far as the same relates to maker and defendant endorser) to Ellicott’s Chemists, Incorporated, by Ellieott Eothenberg, president (maker), and Ellieott Eothenberg (endorser), notice being mailed, so addressed, in care of New York Credit Men’s Association at its New York City office therein mentioned.

An examination of the original note indicates the same to be payable to the plaintiff “as trustee.”

The second count alleges the execution on April 16th, 1934, by the defendant, of a guaranty bearing that date, wherein the defendant did personally guarantee to the creditors of Elliott’s Chemists, Incorporated (of which it is claimed the defendant was president and a large stockholder), payment of moneys due to them amounting to $8,587.36, the plaintiff herein being the trustee in said guaranty named. In consideration of said guarantee, the creditors agreed through their trustee, to extend time of payment of the aforesaid sum and not to take any action or actions to collect the same, and agreed to accept the defendant’s guarantee for the payment of $1,000 on May 1st, 1935, and the balance at the rate of $1,000 yearly, in equal monthly installments, until the full sum due, is paid, said payments to be made to the trustee at its office in New York at the address mentioned. A copy of this guaranty is annexed to the complaint. The said second count recites failure to pay said indebtedness or any part thereof. The note referred to in the first count represents the first of a series of notes evidencing said indebtedness.

The defendant by his answer admitted the making and delivery of the note, as well as the execution of the guaranty aforesaid. The answer also contains a general denial and several defenses, inter alia, want of consideration as endorser; admission of execution of the guaranty and averment that the same is not now binding upon the defendant; also that no notice of protest of the note was ever delivered to defendant.

The plaintiff denied every affirmative allegation set forth in the answer and joined issue thereon, in its filed reply.

The cause was tried, with the consent of the parties, by the court, without the intervention of a jury.

At the trial, the plaintiff, by its staff manager, offered the note and certificate of protest in evidence, without objection, and rested. Subsequently and without objection, the guaranty hereinbefore referred to, was also received in evidence. Upon cross-examination by the defendant’s counsel, it appeared that the note was made in conformity with the guaranty aforesaid, that the assent of ninety per cent, of the creditors had been obtained (the consents although in court were not offered in evidence), that notice of protest addressed (as aforesaid) to the defendant, had been received ai the office of the plaintiff, although the plaintiff knew the exact residence address of the defendant in Teaneck and at no time received any other mail or communication intended for the defendant. The record does not disclose that any notice of dishonor was sent to the defendant at Teaneck (see sections 104, 107 and 108 of Negotiable Instruments act, Comp. Slat. 1910, p. 3747), although due diligence on the part of the plaintiff, and notary would have disclosed the same. It should be noted at this time that the note on its face, discloses the same as issuing out of Hackensack, New Jersey, where the maker (Elliott’s Chemists, Incorporated) had its place of business, the defendant herein being the president of said maker-corporation. Herbert v. Servin, 41 N. J. L. 225. The note does not contain any waiver of protest. It was payable at the office of the plaintiff.

Decision on motion of defendant for nonsuit was reserved.

The defendant, testifying in his own behalf, stated that he had been a resident of Teaneck at the same address for thirteen years (the same address as testified to by the witness offered in behalf of the plaintiff) and contended that he had never received any notice of protest of the aforesaid note although he admitted that the plaintiff was acting as trustee for the creditors of Elliott’s Chemists, Incorporated. With respect to the sufficiency of the service, if made, the rule is now elementary that it is proper and sufficient to leave notice of dishonor at the office and usual place of business of a corporation, the party to be charged, with an employe in general charge of the office, in the absence of the other officers. Smal lery v. Wright, 40 N. J. L. 471; 8 Corp. Jur. 660; Hughes v. Bankin Realty Co., 108 N. J. L. 485; 158 Atl. Rep. 487. In the case at bar, this requirement was admittedly not complied with for that no notice of dishonor directed to the defendant, either at Teaneck or Hackensack, was sent to him. This circumstance could not, however, affect the defendant’s obligation under the guaranty — wherein the defendant became a guarantor of payment. Columbia Electric Supply Co. v. Kemmet, 67 N. J. L. 18; 50 Atl. Rep. 663. One who for the accommodation of the maker guarantees the payment of a note, is not an accommodation party within section 29 of the Negotiable Instruments act, because — in so far as relates to said guaranty — he is neither maker, drawer, acceptor or endorser.

In the making of the guaranty herein referred to, it is not claimed that there was any fraud, duress, deceit, or violation of law in procuring the same. Sound policy as well as the plainest principles of justice demand that when there is a valid consideration, and the payee had done nothing to deceive or mislead either principal or guarantor, the guarantor should be held to the terms of Ms contract. The disability of Elliott’s Chemists, Incorporated, appears to have been the very reason for the requirement of the guaranty of payment by the defendant. The legal effect of the guaranty here under consideration was that the defendant would pay the sum of $8,587.26 called for by the agreement, the Elliott’s Chemists, Incorporated, not having the moneys wherewith to pay the same. Perkins-Goodwin Co. v. Hart, 83 N. J. L. 471; 83 Atl. Rep. 877. See, also, Newark Finance Corp. v. Acocella, 115 N. J. L. 388; 180 Atl. Rep. 862, and cases therein cited as to distinction between the words “guaranty” and “surety.” See, also, Westville Land Co. v. Handle, 112 N. J. L. 447; 171 Atl. Rep. 520 (at p. 522). The defendant by his guaranty agreement incurred the obligation to pay said sum. It was not qualified or conditioned upon the plaintiff sustaining loss.

The defendant and two witnesses called by him gave testimony, which if believed, showed that on May 18th, 1934, a creditor instituted suit in a local District Court against the defendant and the Elliott’s Chemists, Incorporated, upon which no judgment was entered, and which said suit remains open of record. It does not appear whether or not this creditor was a party to the guaranty hereinbefore referred to and if a party, when and if its consent was obtained. The defendant also claimed that he made payments to several of his creditors (after he entered into the guaranty agreement with the plaintiff), including a payment made to a creditor on June 26th, 1934, because he “didn’t believe the agreement was in existence,” although the defendant did not communicate this belief to the plaintiff. . The testimony before this court does not disclose whether these creditors so paid were parties to the guaranty or whether their indebtedness was taken into consideration under said agreement. The list of creditors was not offered in evidence.

The defendant testified that he had not received any notice from the plaintiff indicating that ninety per cent, of the creditors had assented to the operation of the guaranty agreement although it appears that the last consent was received on April 26th, 1935, and the note referred to in the first count of the complaint did not become due until May 1st, 1935. There is nothing in the guaranty which requires the plaintiff to communicate to the defendant the acceptance by ninety per cent, of the creditors of the terms of the guaranty aforesaid. The testimony before this court indicates that ninety per cent, of the creditors whose names have been submitted to the trustee assented to said agreement and evidence of the acceptance given to said trustee. The defendant has not submitted any proof to refute this testimony.

The defendant further testified that he made a payment of $50 to the plaintiff in part payment of service that they had rendered up to a certain date. The plaintiff’s witness stated that this amount was considered a payment on the note and that it was paid in the latter part of September, 1934. This court is of the opinion that this payment was made under paragraph 8 of the guaranty, which provides for payment to the trustee (plaintiff) of the sum of $50 each year for services rendered or to be rendered in connection with this matter. This payment, admittedly made, leads this court to the conclusion that it was the intention of this defendant to be bound by the conditions and obligations of the guaranty and the terms thereof, even though the suit of May 18th, 1934, had been instituted and the payments to creditors voluntarily made by said defendant as aforesaid.

In so far as suit on the guaranty agreement is concerned, the rule seems to be that in cases of this class the party guaranteed is under no obligation to sue on the note as a condition precedent to recovery against the guarantor and is not barred by delay in calling on the defendant for payment and need not even notify the defendant of non-payment of the note. Accordingly, the plaintiff here was entitled to hold the guarantor defendant immediately upon a default. Columbia Electrical Supply Co. v. Kemmet, supra; Pfeiffer v. Crossley, 91 N. J. L. 433; 103 Atl. Rep. 1000; affirmed, 92 N. J. L. 638; 106 Atl. Rep. 892. The obligation here under consideration was an absolute guaranty of payment by the defendant of the obligation of the Elliott’s Chemists, Incorporated. To permit the defendant to escape from the liability of his guaranty would be to lend judicial sanction to a fraud upon the plaintiff corporation, which acted in good faith on the defendant’s acts and solemn obligation. The defense interposed by the defendant is without merit to support it.

Unfortunately, the plaintiff (and probably through inadvertence) withdrew from consideration of the court, the count with respect to the guaranty. The evidence in the case justillos a recovery by the plaintiff on that count.

Under the circumstances, an amendment will be permitted in keeping with the testimony to that end.

Counsel for the plaintiff may apply for leave to restore the abandoned count on the guaranty. In order that the defendant may have an opportunity to offer any testimony with respect to that, the defendant will be allowed, as a matter of course, the right to file his answer to the amended complaint and thereafter a day may be fixed for the taking of any additional testimony. In the event that the defendant does not wish to do this, judgment will be entered in favor of the plaintiff and against the defendant in the sum of $1,000.


author: John C. Wegner, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    BLANCHE LANCASTER, PETITIONER, v. MUTUAL CHEMICAL COMPANY OF AMERICA, RESPONDENT.
    Decided December 7, 1937.
    For the petitioner, Louis Hoberman.

    For the respondent, George T. Vickers.

   A petition for compensation having been filed in this court on November 28th, 1936, alleging that Elmer Lancaster, deceased husband of the petitioner, Blanche Lancaster, met his death on November 4th, 1936, as a result of chrome poisoning suffered in the course of his employment and arising therefrom while working in respondent’s potassium bichromate plant.

In answer the respondent admits the employment of the deceased Elmer Lancaster from about September 10th, 1926, to about August 28th, 1936; that in the course of his employment as a laborer he was exposed to chrome, but the respondent denies that the petitioner suffered any accident or compensable disease.

sj: í}í

The petitioner testified that she was the widow of the deceased Elmer Lancaster; that she and the deceased lived together as husband and wife; that her deceased husband was employed in respondent’s chemical plant at Jersey City over a period of not quite ten years; that throughout the ten years of his employment with the respondent, the deceased worked steadily on all working days except in the summer of 1936 when work was slack he took off Thursdays and remained at home, resting mostly in bed; that in the spring of 1936 he complained of aches and pains in the chest, he coughed, lost appetite and lost thirty or forty pounds of wéight; that he was intermittently treated by their family physician, Dr. Peter E. Ghee, of Jersey City, and that her husband last worked for the respondent on August 28th, 1936, that he took to his bed and was, on or about October 1st, 1936, removed to the Medical Center of Jersey City where he remained until his death on November 4th following. This witness also produced a death certificate obtained from the board of health and vital statistics which was offered in evidence and showed that the cause of death to Elmer Lancaster given as carcinoma of the bronchus, pulmonary edema secondary. This death certificate was also identified by Dr. William H. Longley, Jr., who attended the deceased at the Medical Center and signed the death certificate.

Dr. Peter E. Ghee called as a witness for the petitioner testified that he was a licensed and practicing physician in the State of New Jersey, having practiced for about thirty-nine 3'ears; that in the spring of 1936, Elmer Lancaster came to him at his office occasionally and that he treated him for bronchial trouble and advised him to stop his work and that he thought that whatever the conditions under which he was working were against him; that he prescribed medicine with the idea of soothing his bronchial tubes and to lessen the irritation ; that Lancaster was coughing, that it was a rather hackv and troublesome cough more or less with a certain amount of mucous spitting up. This witness further testified that from August 28th, 1936, on, Elmer Lancaster was unable to report back to work; that ho was a very sick man and that the witness treated him from then on until October 1st, when Lancaster went to the hospital, and that the witness determined that Lancaster was suffering with bronchitis and with a pronounced cough and sputum and fever; that subjectively the patient complained of pain in his chest, and that while this witness saw Lancaster at the Medical Center, he did not visit him professionally and that he did not really know the cause of death but that he died from some bronchial trouble evidently. Asked on cross-examination whether he could tell what irritant, in his opinion, contributed or was the cause of the illness for which he treated Lancaster, the doctor said he would not go so far as that, but that he was convinced it was some strong irritant or irritating cause that he was breathing in or taking in through the air, because of the rapidity with which the cough increased, and that, in his opinion, a carcinoma of the lung would not cause the peculiar cough Lancaster had. This witness testified that at no time during his treatment of Lancaster did either Lancaster or he refer to chrome, and that he, the doctor, was never able to determine what irritant caused the irritation of the bronchial tubes, and that he knew nothing about the chemical composition of chrome, and in the opinion of this witness no one knows the cause of carcinoma.

On behalf of the petitioner, Dr. Clarence F. Winchell was called and qualified as a chemist and toxicologist. His testimony was apparently scientific, instructive and would have much probative force on the question of the effect of potassium bichromate on the respiratory organs of the human body if the evidence that potassium bichromate in the instant case in fact had been carried in the air current into the farther recesses of the lungs, namely the bronchus, the bronchioli or down into the alveolar tract.

Dr. Otto Lowry called as a witness for the petitioner testified among other things that chrome is an irritating substance and when it comes in contact with the body and tissues in solution compounds with some of the organic material in the body and acts as an irritant and in sufficient concentration causes ulcers which may be on the skin or on the mucous membrane of the nose or may appear on the mucous membrane of the throat and may produce bronchiectasis in the lungs. The doctor further testified to his belief that inhalation of chrome may have aggravated or activated the existing carcinoma, although he, himself, had never seen any carcinoma that had been produced by chrome.

Dr. Eugene L. Spohn called as a witness on behalf of the petitioner testified he is at present on the cancer service and gynecologic service at the Medical Center in Jersey City as house surgeon on both services; he further testified that he had never examined a patient suffering from chrome poisoning. In answer to the hypothetical question involving sickness and cause of death, the doctor said “there may be a relation between a man employed under the conditions that I have heard and the cause of death,” and the witness further testified that the cause of carcinoma is unknown but it is agreed that “any chemical irritation, any thermal irritation, any mechanical irritation, any bacterial irritation over a continued period of time may aggravate, and by some authorities may even be a cause of the beginning of some types of malignant tumors.” The doctor frankly admitted that in his own experience, he knew of no ease where there had been chrome ulcers in the lungs.

Dr. George White was called as a witness on behalf of the petitioner and testified in part that he knew the deceased; that the respondent manufactured bichromate of soda and oxalic acid, that he treated the deceased at the plant dispensary for acute bronchitis and an erosion of the mucous membrane of the septum of the nose. This witness was recalled on rebuttal in the petitioner’s case and gave further testimony regarding the dispensary records and that the nasal septum perforation was complete and healed in 1932 and so far as that disease was concerned, there was no further exposure thereto during the continuance of the employment of the deceased by the respondent.

Dr. Benjamin J. Macchi was called on as a witness on behalf of the petitioner. The doctor testified that he had occasion to examine about fifteen to twenty patients suffering from bichromate poisoning; that among these patients there were different perforated septums, evidences of chronic bronchitis and that in that series there were four deaths; three died of cancer of the lung and the fourth the patient had a chronic nephritis. The witness further testified, to his belief, there was a causal relationship between the chronic irritation produced by chrome and the deaths from cancer of the lungs. Again referring to the three deaths from cancer of the lung to which the witness had testified, he expressed the belief that “reaction was due to chronic irritation of the mucous membranes of the entire respiratory tract or bronchial tract” and this witness further testified “we do know definitely and experimentally that chronic irritation can cause cancers and we do know that chrome is an irritant, so, therefore, we can definitely say that cancers of the lungs were due to the chronic irritation produced by chrome;” and the witness further expressed the opinion in answer to the hypothetical question that “potassium bichromate was a sufficient irritant to cause the death of Elmer Lancaster.” On further examination the witness also testified that he did no know the cause of cancer and that so far as the literature of his profession known to him, nobody else knows the cause of cancer.

In the cases referred to by this witness there was neither a bronchoscopy, a biopsy nor a post mortem to determine the cause of death. The opinion of this witness seems to be based, on the existence of coughs indicating previous bronchitis, on X-rays showing or indicating tumors of the lungs and an assumption that because the patients worked in a chrome factory, and chrome is an irritant, therefore the patients had cancers of the lungs due to chrome poisoning.

The claim of the petitioner must rest on proof that her husband in the course of and arising out of his employment with the respondent incurred an occupational disease, called chrome poisoning, resulting in a carcinoma of the left lung from which he died. It is contended by the petitioner that inhalation of minute particles of chrome in the form of dust in the air and breathed into the lungs are, .because of their chemical properties, a destructive irritant producing lung cancer from which he died. Erom the testimony produced on behalf of the petitioner in this case, it is apparent that the cause of cancer is unknown to the medical profession and that the malignancy of a tumorous growth can only be determined scientifically through what is known as a biopsy of portions of the growth secured therefrom, by means of a bronchoscopy while the patient is alive, or upon a post mortem.

On behalf of the respondent the following witnesses were called: Dr. George D. White, Dr. Albert S. Edel, chemist and toxicologist, Dr. William H. Longley, Jr., Dr. Berthold S. Pollock, Dr. Mervin Barrone (bronchoscopist), Dr. Joseph Koppel and Mr. Herbert M. Kaufman. Dr. White testified as a physician and a chemist. Prom the testimony of this witness, it appears that the chrome manufactured by this respondent is bichromate of soda and that it is an oxidizing agent and in its manufactured condition before coming into contact with moisture and organic matter is the sesqui oxide; and that in contact with moisture and organic matter oxidation takes place in which an excess atom of oxygen is given xxp reducing the higher to a lower oxide known as valance 3 which is inert. In this process of oxidation the organic matter joins up with the excess oxygen and is burned. That this sesqui oxide is characterized by deliquescence, in the language of the witness “it wants to grab water.” This witness further testified that air is never perfectly dry and always has enough moisture to make these small crystals of bichromate sticky and that as soon as they become sticky they become adherent to the mucous membranes and that they contain mueine and other organic xnatter where this transformation from the higher to the inert oxide would take place and that because of the cilia of the epithelium of the nose and the natural curvature of the posterior nares, such crystals breathed in would be deviated from side to side and the carbon of the organic matter being “grabbed” by the anhydrous crystals, the oxidation formerly described by the witness takes place reducing the crystals to an inert lower form.

This witness gave as his opinion both as a physician and as a chemist that he knew of no authority for the conclusion that bichromate could produce a carcinoma or a malignant growth in the lung, and that if any such authority existed it would solve the problem of cancer.

Dr. Albert S. Edel called as a witness for the respondent was qualified as a chemist and toxicologist and testified that he had experience with chrome cases where it was alleged that persons died of chrome poisoning, that he had examined after post morieras the vital organs such as liver, kidney, spleen, &c., and had never found chrome present. This witness also testified that while bichromate of soda was toxic if taken internally in sufficient quantity, it was not industrially toxic.

Dr. William H. Longley, Jr., a witness previously called on behalf of the petitioner was called to testify on behalf of the respondent. He testified that he was a resident physician at the Medical Center when Elmer Lancaster was in that institution during his last illness and that he was the physician who certified to the cause of death as evidenced by the death certificate previously referred to. This witness also testified that for the scientific determination of the malignancy of a tumor a microscopic examination of a detached portion of the growth would be necessary, and that in the instant case although a bronchoscopy was performed no portions of the tumor located below or near the corina were secured and that there was no post mortem.

Dr. Berthold S. Pollock sworn on behalf of the respondent being a medical practitioner of many years experience and having specialized in lung diseases and the entire respiratory tract in relation thereto produced an illustration drawn to scale showing the entire respiratory organs from the posterior nares through the epiglottis, the traches, the bronchi, to their final determination in the alveoli. This illustration showed these organs as though opened for inspection of the interior and depicted graphically the bifurcation of the trachea into the bronchi on which illustration location of the tumorous growth in the left lung of the deceased could be located with relation to the corina. This witness further testified that assuming the bronchoscopies performed on this deceased showed no pathology above the corina, or as being clear down to the corina at the bifurcation of the trachea, that there was no evidence of a causal relation between the carcinoma, if one in fact existed, and the employment of Lancaster as a chrome worker.

Dr. Joseph Koppel, a witness sworn and called on behalf of the respondent likewise using the illustrated chart produced by Dr. Pollack gave as his opinion that the absence of any pathology in the respiratory tract as far as the corina justified the conclusion that the lung condition of the deceased had no relation to chrome inhalation.

Dr. Mervin Barrone sworn and. called as a witness on behalf of the respondent was qualified as a medical practitioner connected with the Medical Center in Jersey City and so far as the present case is concerned, acting as an expert on bronchoscopy and that on two occasions in the month of October, 1936, he performed a bronschoscopy on each occasion for the purpose of diagnosing the ailment of Elmer Lancaster; that on neither occasion was he able to secure any of the tissue of the tumorous growth which he saw in the left lung of the patient below or on the level with the corina; that on these occasions there was no pathology above the corina and that Ms examination would have disclosed any chrome ulcers or irritation had they existed.

Mr. Herbert M. Kaufman being sworn as a witness on behaif of the respondent testified that he was a chemical engineer and the plant manager at the Jersey City plant of the respondent; that among other things the respondent manufactured bichromate of soda and had not manufactured bichromate of potassium at any time during four or five years last past; he explained the character of the work done by Elmer Lancaster.

In rebuttal the petitioner recalled Dr. George D. White and examined him regarding plant dispensary records and treatments of Elmer Lancaster while in the employ of the respondent, and it was during this testimony that the evidence respecting a nasal septum perforation was brought out. Giving to the testimony of the petitioner and her witnesses both on the main case and in rebuttal and to petitioner’s exhibits their broadest scope and effect, that evidence is so preponderatingly outweighed by the evidence produced by the respondent that it is impossible to conclude that the carcinoma of the bronchus and subsequently pulmonary edema was either produced or exacerbated from contact with or inhalation of chrome or that there was any causal relation between the employment of the deceased in the plant of the respondent and his death. On the contrary, I am convinced and so find from the preponderance of the evidence that assuming Elmer Lancaster to have died of a carcinoma of the bronchus in the left lung according to the clinical diagnosis of his disease, there is no evidence of the cause or origin of the disease from which he suffered, nor that Elmer Lancaster contracted chrome poisoning in the course of his employment with respondent resulting in the death of Elmer Lancaster as alleged in the petition and sought to be established by the evidence.

After carefully considering all of the testimony and other evidence admitted in the case, I have come to the conclusion that petitioner has failed in her burden of proving that her husband, Elmer Lancaster, came to his death from either an accident or a compensable disease arising out of or in the course of his employment.

John C. Wegner, Referee.


author: Oliphant, C. C. J.

text:
    Mercer County Circuit Court.
    MARY ELLEN REYNOLDS, PLAINTIFF, v. JOHN E. REYNOLDS, Jr., DEFENDANT.
    Decided December 21, 1937.
    For the plaintiff, Josephson & Josephson.

    For the defendant, Joseph D. Kaplan.

   Oliphant, C. C. J.

This matter has been submitted to the court for determination upon the pleadings and briefs filed by the respective counsel.

The cause was originally entered and filed in the Court of Chancery. By an order made by that court on March 16th, 1937, the cause was transferred, with the record thereof and all papers filed therein, for hearing and determination in the Mercer County Circuit Court, “for the reason that the Court of Chancery had not jurisdiction of the subject-matter of the cause, the said cause being cognizable at law.”

The complaint seeks the construction of the last will and testament of John B. Reynolds, deceased, who died testate on July 25th, 1933, and whose will was duly probated in the Mercer county surrogate’s office.

The pertinent provisions of the will are as follows:

“Second: I give, devise and bequeath to ray beloved wife, Mary Ellen Eeynolds, my house and lot wherein I reside known as No. 856 Strawberry street, Trenton, New Jersey, to have and to hold the same to her own use forever.
“Third: In view of the fact that I have heretofore transferred to my said wife, Mary Ellen Eeynolds, two hundred (200) shares of the Standard Oil Company of Indiana and also considering that I have heretofore conveyed to my said wife a lot located at the corner of Maplewood and Brunswick avenues, Trenton, New Jersey, it is my wish and express desire that the foregoing transfer and conveyance together with the aforesaid devise shall be by her received in lieu of her dower in my estate.”

By the fifth paragraph of the will, the residuary estate was devised to John E. Eeynolds, Jr., the defendant herein.

Plaintiff contends that by virtue of the proper and legal construction of paragraph 3 of the will, the same constitutes a devise by implication of the lot of land therein mentioned to the plaintiff, Mary Ellen Eeynolds. The defendant in its answer neither admits nor denies this allegation, but relies entirely upon the true construction of the will effecting the devise in question.

The law upon the subject of implied devises is well settled. As said in Holton et al. ads. White, 23 N. J. L. 330, “the general policy of the law and the leaning of courts is against the doctrine of implied estates under devises in wills, and has tended rather to limit than extend it.”

In Hurlbut v. Hutton, 42 N. J. Eq. 15 (at p. 28); 6 Atl. Rep. 286, we find Chancellor Runyon speaking as follows: “To create a devise by inference, the implication must be a necessary one, there must be such a strong probability of an intention to devise that an intent to the contrary cannot be supposed. 2 Row. Dev. 199. Said Lord Eldon, in Dashwood v. Peyton, 18 Ves. 27, 41: T find no authority for holding a mere recital, without more, to amount to a gift or demonstration of an intention to give.’ Even where a testator in the codiciJ recites that by his will he has made a devise or bequest, which does not there appear, the codicil does not, by such recital, create that bequest or devise. Sir John Romilly, M. R., in Re Arnold’s Estate, 33 Beav. 163, 171. Where a testator bequeathed all his real and personal estate to a person whom he named, but stated that on his [the testator’s] death his father’s property would, under his father’s will, devolve upon his nephews, which was not the fact, for it formed part of the testator’s estate, it was held that the father’s property did not pass under the will. Circuitt v. Perry, 25 Beav. 275.”

In the instant case, there is no recital of a devise nor any expression or indication of an intention to devise. The will merely states that the testator had by another instrument conveyed the property to his wife, which in fact, he had not done.

The correct rule is stated in 69 Corp. Jur. 70, ¶ 1124, as follows: “Where a testator erroneously recites in his will that he has by the will given certain property when he has not effectually done so, such recital may be taken as sufficient evidence and expression of his intention to give by will, and the devise or bequest may be implied,” but “a gift,by will' will not be implied from an erroneous recital that he has, by some instrument other than the will, given property to a certain named person when in fact he has not done so.” In the case of Allenbach v. Ridnour, 279 Pac. Rep. 32; 51 Nev. 437, it was held that an undelivered deed did not become a part of a will as a devise after death, although the will referred to the deed as having been executed. To the same effect also is the opinion in Noble v. Tiplon, 219 Ill. 182.

The Court of Appeals of Maryland in Zimmerman v. Hafer, 32 Atl. Rep. 316, in a case akin to the present one held “the doctrine as to the effect of erroneous recitals in wills, is well established, namely, that if the erroneous recitals in a testamentary instrument be of a gift contained in this instrument, the recital may operate as being in itself a devise or bequest by implication of that very property. But where the erroneous recital refers to an estate created by other instruments, that recital cannot operate to create an estate by implication.”

Vice-Chancellor Buchanan in Peoples National Bank v. Tipper et al., 100 N. J. Eq. 431; 136 Atl. Rep. 187, said: “This court can construe and make definite an actual testamentary intent of the testator, where that intent has been placed by the testator in his will, either expressly or impliedly, however ineptly or ambiguously the phraseology in which such intent to dispose is clothed; but it cannot make a will, nor a testamentary disposition of any of testator’s property where the testator himself has made no such disposition nor attempted so to do.” These latter words undoubtedly mean that the court cannot make a testamentary disposition where the testator did not attempt to do so by the will itself.

The mere recital by the will that the testator had heretofore conveyed the lot in question to the plaintiff ’ shows no such intention on the part of the testator to devise the lot by his will, but simply recites a fact, probably at the time believed by him to be true, to wit, that he had conveyed the property to the plaintiff by deed, which in truth, had never been done.

I am of the opinion that under the facts and the law, there can be no devise of the lot of land in question to Mary Ellen Reynolds by implication, but that title to the said lot is in the defendant, John E. Reynolds, Jr., the residuary devisee.