text:
    FRANKLIN v. FRANKLIN
    Court of Chancery of New Jersey
    June 28, 1948.

      John E. Toolan and Hulyer E. Romond, both of Perth Amboy, for petitioner.
    Kristeller & Zucker and Herman E. Dultz, all of Newark, for defendant.
   TOMASULO, A. M.

The above matter involves three separate appeals and' comprises another phase of a litigation instituted by the husband against his wife for a divorce on the ground of desertion. The original divorce petition was dismissed by the court under decree dated October 23, 1946, which decree, inter alia, provided: “It is Further Ordered that the petitioner pay to the defendant or to her solicitors the annual sum of $3000.00 in equal monthly installments of $250.00 commencing upon the date this Decree, as and for the support and maintenance of herself and William Albert Franklin, the infant son of said marriage, in her custody, until the further order of the Court.”

This decree was affirmed by the Court of Errors and Appeals, 52 A.2d 841, in its entirety.

After the dismissal of the husband’s divorce petition, the wife continued to reside in the State of Virginia with the child of the marriage and the husband continued to reside in Woodbridge, New Jersey. It appears that thereafter, the husband and wife were involved in a proceeding in Virginia which resulted in the confinement of the wife in a mental institution. She was subsequently released through habeas corpus proceedings brought by her. The commitment of the wife to the mental institution took place on or about January 20, 1948. On January 19, 1948 the husband instituted habeas corpus proceedings involving William A. Franklin, the son of the marriage, in which proceedings, the wife was directed to produce the infant before the judge of the Fairfax County Court (Virginia).

Sometime between January 19, 1948, (the date of the institution of the habeas corpus proceedings by the husband), and January 30, 1948, the date on which the wife was released from the mental institution, the husband acquired physical possession and custody of the child.

On February 16, 1948, the wife filed a petition in this court in which the foregoing facts are recited in addition to an allegation in which she states as follows: “Defendant is fearful, in view of the acts of the petitioner herein set forth and more particularly described in the affidavit hereto annexed and made a part hereof, that the petitioner will leave the State of New Jersey so that he cannot be held to perform the obligations of the final decree in this cause and will remove the child, William Albert Franklin, without the jurisdiction of this honorable court so that the defendant will be unable to obtain the relief to which she is entitled, and will be unable to obtain support and maintenance for herself and the infant child of the said marriage which has heretofore been ordered in her custody.”

Upon the basis of the foregoing petition, the wife prayed:

(1) That her husband be adjudged in contempt of this court in that he refused and neglected to comply with the order of the court and permitting the custody of the said infant child, William A. Franklin to remain with the defendant as ordered in the final decree and that he be punished accordingly, and,

(2) That a writ of ne exeat be issued to prevent the petitioner from departing from New Jersey.

An order to show cause was entered upon the foregoing petition by which the husband was directed to show cause why he should not be adjudged guilty of contempt of this court in accordance with the prayer of the petition. Included in the order to show cause was an order granting the writ of ne exeat.

On June 21, 1948, after considering the petition and proofs filed in support of their respective positions, and the oral arguments as well as briefs of counsel, an order was entered determining that the husband was not guilty of contempt of the court as charged in the petition filed by the wife, and discharging the order to show cause dated February 16, 1948. Thereupon, the husband made application for an order dismissing the writ of ne exeat, and after again considering the proofs before the court, as well as oral arguments and briefs of respective counsel, an order was entered on June 29, 1948 discharging the writ of ne exeat and directing the sheriff to release the husband from custody. On June 7, 1948, the wife had, through counsel, made application to stay the dismissal of the writ of ne exeat pending the outcome of the appeal respecting the contempt proceedings referred to above. The application to stay the dismissal of the writ of ne exeat was made in the form of a letter which follows at length:

“Dultz, Miller, Gelfond & Zeller Counsellors at Law

972 Broad Street Newark 2, N. J.

June 7, 1948

Hon. Nicholas A. Tomasulo,

Advisory Master,

Chancery Chambers,

Newark,

N. J.

Re: Franklin v. Franklin 155-375

Dear Advisory Master:

Since your conclusions filed in the above entitled matter denying Mrs. Franklin’s application to hold her husband in contempt of court, we have been served by the office of John E. Toolan, Esq., that an application is to be made to ‘dismiss and discharge the writ of ne exeat república issued against the petitioner William Robert Franklin, by order of this court dated February 16, 1948.’

In view of the fact that we have been authorized to take an appeal from your Honor’s ruling as soon as the order ■is entered, I wish you would be good enough to withhold your decision on the dismissal of the ne exeat in case you are inclined to do so, until the Court of Errors and Appeals decides the contempt proceedings.

This letter is written to you following the case of Tracy vs. Tracy, 140 N. J. Equity 496.

Thanking you for any consideration that is extended to us, we are,

Yours respectfully,

Kristeller & Zucker, Esqs.,

By Herman E. Dultz,

Of Counsel.”

On July 9, 1948 an order was entered denying the aforesaid application to stay the discharge of the writ of ne exeat. From this order a Notice of Appeal was filed on July 27, 1948.

The third order being appealed from is an order entered on July 21, 1948 in which the court denied an application of the solicitor of the wife for a counsel fee of $1,000 for services rendered in the proceedings instituted in this court resulting in the order issued on February 16, 1948 requiring the husband to show cause why he should not be adjudged in' contempt. From this latter order a Notice of Appeal was filed on July 28, 1948.

The general rule respecting one’s liability for contempt of an order of a court is: “To justify adjudging one guilty of contempt for the alleged violation of an order, the order must be so clearly expressed that when applied to the act complained of it will appear .with reasonable certainty that it has been violated. Hence, a party cannot be punished for contempt for failure to obey an order which is contradictory, or for failing to do something not specified in the order.”

This rule is based upon sound logic since it requires' that an order alleged to be violated must be specific, clear and precise, so that one need not resort to inference or implications to ascertain a duty or an obligation. A command must be expressed rather than implied. McCaleb v. McCaleb, 177 Cal. 147, 169 P. 1023; Berry v. Midtown Service Corp., 2 Cir., 104 F.2d 107.

It is universally established that the power to punish for contempt is inherently necessary to enable courts to preserve their own dignity and to administer justice. State v. Howell, 80 Conn. 668, 69 A. 1057. In re Jibb, 121 N.J.Eq. 531, 191 A. 552.

Contempt presupposes an order of a court of competent jurisdiction, since an adjudication of contempt may be predicated only on contumacious disregard of some writ, precept, decree, order or command. In re Roberts, 133 N.J.Eq. 122, 30 A.2d 900. And contempts have been classified as being either criminal or civil, the purpose of criminal contempt being to vindicate the authority of the lawr, while the purpose of civil contempt is to compel obedience. Markle v. Local Union No. 641 et al., 131 N.J.Eq. 202, 24 A.2d 364. So also, civil contempt may consist in failing to do something ordered by a court for the benefit of an opposing party. Lief v. Lief, 14 N.J.Misc. 27, 178 A. 762. From a reading of these cases, it is obvious that the gravamen of contempt is a disobedience of an order, for one can neither obey nor disobey a directive which is non-existent. To determine whether a contempt has been committed the writ should be the criterion for the party who is enjoined because it embodies the order of the court. Richard v. West, 3 N.J.Eq. 456, and the writ should always be plain and certain on its face so that the party may understand it without any reference to the bill filed. Richard v. West, supra.

Thus, when those enjoined by a decree in Equity are charged with having violated it, its violation must be made to clearly and satisfactorily appear by the person asking for its enforcement. Sullivan v. Jones & Laughlin Steel Co., 222 Pa. 72, 70 A. page 775 and a Chancellor will not punish unless the guilt of the enjoined be clearly established. Probasco v. Probasco, 30 N.J.Eq. 161, because the entry of an order of injunction is in some respects analogous to the publication of a penal statute in that it is notice to the party that certain things must be done or not done under a penalty to be fixed. The language of such notice should not be stretched to cover acts not fairly and reasonably within its meaning. Wisconsin Central Railroad Co. v. Smith, 52 Wis. 140, 8 N.W. 613.

An examination of the decree of dismissal in the divorce proceedings brought by the husband upon which the instant contempt proceedings were based, discloses no order which directs the husband to engage or not to engage in the course of conduct of which his wife complains. To be sure, the actual physical custody of the child remained with the wife, but this was not the result of any custody award or order made by this court. Neither of the parties made an issue of custody in the divorce proceedings and the wife retained the custody of the child after the divorce proceedings were dismissed, as theretofore. There was no order prohibiting or enjoining the husband from doing what he did unless such an injunction can be read into the decree by implication or inference. In a proceeding such as this, I am reluctant to do so and I have therefore concluded that no contempt has been committed by the husband and consequently, the order to show cause is dismissed.

Since counsel fees (which are the subject matter of the third appeal) were sought in the contempt proceedings which were hereinabove dismissed, it is perhaps well to dispose of this question now. An award of counsel fees against a successful litigant has, even though permitted by statute, R.S. 2:29-132, N.J.S.A., been determined to be a matter of discretion. Hilton v. Hilton, 89 N.J.Eq. 422, 105 A. 65.

In the exercise of my discretion, I was not moved by the extraneous allegations and proofs in this matter which related to the proceedings in Virginia excepting insofar as they had a bearing on the question of contempt. If the wife had been interested only in procuring the custody of the child, this could have been accomplished through a direct proceeding brought by her for that purpose in which she could, upon satisfying the court of the correctness of her position, obtain an adjudication respecting the custody of the child. This she did not do; instead she chose, in my judgment, a proceeding which suggests a frame of mind on her part, borne of animus, vindictiveness and vengeance. Under such circumstances I do not believe that the husband should be called upon to contribute to the cost of unsuccessfully prosecuting a mis-conceived remedy. I therefore deny counsel fees.

This brings me to the remaining question embraced in the second appeal. As will be noted, a reference to the record discloses that on June 21, 1948 an order was entered dismissing the contempt proceedings against the husband.

Upon receipt of the court’s conclusions in connection with the contempt proceedings, the solicitor for the husband made an application upon proper notice, to dismiss and discharge the writ of ne exeat theretofore issued. Thereupon the solicitors of the wife made what the court entertained as an application to stay the dismissal of the ne exeat proceedings; the order for dismissal of the ne exeat proceedings not yet having been entered although the respective solicitors had been advised of the court’s decision to dismiss the writ of ne exeat.

The basis of the application for the stay was a contemplated appeal from the order of the court dismissing the contempt proceedings entered on June 21, 1948, as is apparent from a reading of the letter, supra. The authority cited in this letter in support of this application, Tracy v. Tracy, 140 N.J.Eq. 496, 54 A.2d 818. An examination of the Tracy case reveals that it involved an application for a stay of an order which was the subject matter of the appeal. The obvious purpose for the requested stay in the Tracy case was to maintain and preserve the status quo of that phase of the litigation pending the appeal. In the instant case the stay requested by the solicitors of the wife related to the proposed entry of an order dismissing the writ of ne exeat pending a contemplated appeal from the order dismissing the contempt proceedings. This was not the situation presented in the Tracy case. I therefore concluded this was unauthorized by the holding in the Tracy case and consequently I advised the order dismissing the writ of ne exeat.


source: Caselaw Access Project

author: -BrCHAYAY, V. C.

license: Public Domain

text:
    Herbert Zelley, trading as Zelley Motor Company, complainant, v. Mae Shisler and Clifford Shisler, defendants.
    [Decided December 3d, 1924.]
    Specific Performance' — Decree Against One Defendant But Not Against the Other.
    On final hearing.

      Messrs. Wells & Tomlinson, for the complainant.

      Mr. George M. Hillman, for the defendants.
   -BrCHAYAY, V. C.

Complainant’s bill is for a decree for specific performance of a contract alleged to have been made by both defendants with complainant. The proofs at the hearing entitle complainant to decree against the defendant Mae Shisler, but are, in my opinion, insufficient to establish either that the defendant Clifford Shisler was an actual party to the contract, or that he has estopped himself from denying that he was a party to the contract. As to him, complainant is' not entitled to1 relief.

Under the circumstances of the case no costs will- be allowed to either party.


author: Buchanan, V. C.

text:
    Sofokles Rendo, complainant, v. John Stillano, defendant.
    [Decided December 3d, 1924.]
    Dismissal — Complainant's Motion Resisted by Defendant Who . Claims a Right of Action Has Accrued to Him Because of Bill and Restraining Order — Motion Granted — Defendant’s Counsel Fee Taxed in Costs.
    On complainant’s motion to dismiss bill.

      Mr". John L. Jleher, for the complainant.

      Mr. James J. McGoogan, for the defendant.
   Buchanan, V. C.

On the day set for final hearing, but prior to the commencement thereof, complainant moved to dismiss his hill on paianent of costs, which motion was resisted by defendant. I am unable to see that the cause comes in anywise within the class of exceptions to' the general rule. See In re Welsh, 98 N. J. Eq. 808 (at p. 306); McCarren v. Coogan, 50 N. J. Eq. 268. Defendant argues that complainant, bv the filing of his bill and the restraining order issued, has interfered with a sale of the subject-matter involved, and that a right of action has thereby’ enured to defendant against complainant, since the latter, by moving to- dismiss, admits that he was not entitled to the restraint. This does not seem to me to- bring the case within the principle of the exception to- the general rule, and even, if my opinion were otherwise, it could not avail defendant, because, admittedly, it is not yet certain whether defendant will suffer loss or damage as the result of the restraint.

The motion will be granted; a. counsel fee of $350 will be allowed" to- defendant, to he taxed in the costs.


author: Pee Gubia m.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOHN J. CHILDS, PLAINTIFF IN ERROR.
    Submitted December 10, 1023
    Decided November 21, 1924.
    Crimes — Breaking and Entering — Receiving Stolen Goods — Taking of Liquor — -Both Charges in Indictment — Assignments of Error Showed No Error in Conviction — Sentence Imposed Erroneous Since Verdict Did Not Specify the Court in Indictment and Error May Be Corrected in Court Below.
    On writ of error.
    Before Justices Kalisch and Katzenbach.
    Eor the plaintiff in error, Walter .Comer (Ulysses G. Glyron, of counsel).
    Eor the defendant in error, Louis A. Repel to.

   Pee Gubia m.

This case has been brought to- this court by a writ of error directed to- the Court’ of General Quarter Sessions of the county of Atlantic. The writ brings irp for review the conviction of John Childs under an indictment which charged him with — (1) breaking and entering by night; (2) breaking and entering by day; (3) entering without breaking; (41 larceny above $20; (5) receiving stolen goods. The facts revealed by the-testimony are briefly, as follows:

On February 4th, 1923, Mrs. Nunzio Patroni left her home at 102 North Cambridge avenue, Yentnor, New Jersey, at two p. ii. She returned on the same day at ten forty-five p. M. The following morning she discovered that her house had been broken into-. An iron bar which did not belong to her, and had not been on the premises, was found in the house. This bar had been used to- pry open a window, as marks made by the bar appeared upon the window. A quantity of liquor, worth several hundred dollars, which Mrs. Patroni had stored in a room, and which she had been advised by her physician- to- personally use, was stolon. In the roc-m where the liquor had been kept a certificate bearing the name and seal of the registrar of vital statistics of Atlantic City was found. This certificate showed that a child had been born to- one- John Childs, and his wife, Anna. John Childs had been formerly employed by Mrs. Patroni. Mrs. Patroni to-dk the birth certificate to the Yentnor city hall and gave it to a detective. A search warrant was issued and premises of Childs at 403 North Ohio avenue and 1619 Arctic avenue were searched. The liquor of Mrs. Patroni was found in the premises belonging to Childs. Childs admitted that he had recently procured the birth certificate, a3id in the presence of a detective looked in his pocket for it. Childs was, subsequently, indicted, tried and convicted. He was sentenced to serve a term in the New Jersey state prison at hard labor of not less than five years, and not more than ten years. The case is before this court upon a strict bill of exceptions, and also' under the one hundred and thiidy-sixth section of the Criminal Procedure act.

The assignments of error are two in number. They deal with — first, the admission in, evidence of the birth certificate, and second, the admission in evidence'of the iron bar. Error in the admission in evidence of these articles is not pressed in the brief of the plaintiff in error. The assignments might bé considered as abandoned. As both articles were found upon the premises, and the birth certificate was connected with the defendant and admitted by him to have been delivered to him, it was not error to have admitted the birth certificate in evidence. While the iron bar was not shown to belong to the defendant, yet it was shown that it had not been npon the premises prior to the entering thereof. It was therefore admissible in evidence upon the question as to whether or not the house had been entered

There was no exception, not even a general one, taken to the charge of the court. The first specification for reversal deals with that portion of the charge of the trial judge which instructed the jury, as follows: “Under the indictment, if you are satisfied beyond a reasonable doubt, you may convict the defendant of either one of the counts alleged in the indictment, which you think the evidence adduced on the part of the state has satisfied you beyond a reasonable doubt that he is guilty of as to that particular count in the indictment.” The objection made to this portion of the charge is in the use of ihe word “satisfied.” The plaintiff in error contends that the word “convinced” should have been used. The word “satisfied,” in the sense in which it was used in the criticized portion of the charge, means the same as “convinced.” In Anderson's Dictionary of the Law the word “convince” is stated to mean “to overcome or subdue; to satisfy the mind by proof,” and “satisfy” is stated to mean “to supply fully with what is required; to free from doubt or uncertainty; to set the mind at rest; to convince.” The use- of the word “satisfied” was equivalent to- the use of the word “convinced.” We cannot see how the plaintiff in error was harmed or prejudiced by what the court said in the. quoted passage. It could not have misled the jury.

The second specification of cause and reason for reversal is based upon the following portion of the charge: “Possession of stolen goods by a defendant is not sufficient evidence to convict a defendant of having committed the crime of stealing the goods, but possession of stolen goods by a defendant, without satsfactory explanation on his part as to- ho-w he came in possession of stolen goods, is evidence of guilt on the part of the defendant, but not enough evidence itself for you to convict the defendant of having committed the crime of stealing the goods.” The plaintiff in error concedes that the first and third propositions embody correct statements of the law, and that the second proposition is correct in the application to the counts in the indictment charging theft of the goods, but contends that it .is erroneous as applied to- the count in the indictment charging the defendant with receiving stolen goods. A reading of the passage in connection with' what follows in the charge shows that it was not intended to apply to the count charging the defendant with receiving stolen" goods, and we cannot see how the jury were left to infer that the possession of the liquor was sufficient in itself to warrant the conviction of the plaintiff in error of receiving stolen. goods, as contended in the brief filed in behalf of the plaintiff in error. Upon any subject the charge of ihe court must be considered as a whole. If the charge as whole makes the law plain to the jury, an excerpt from the charge, apparently susceptible of another meaning, if if stood alone, is not erroneous. State v. Friedman, 120 Atl. Rep. 8.

The plaintiff in error next alleges that the following portion of the charge was erroneous: ■ “But the possession of stolen goods, taken with other corroborative facts and circumstances in the case, is evidence enough on which to. convict a defendant if you are satisfied beyond a reasonable doubt by the evidence produced on the part of the state that the defendant is guilty.” Counsel contends that this passage means that on the count for receiving stolen goods the defendant below could be convicted upon the possession of the goods with other corroborative facts, and circumstances applicable to other counts of the indictment. We do not think this passage of the charge should be so construed. The other corroborative facts and circumstances were those applicable to the charge of receiving stolen goods. This is the inference which the jury would naturally draw from the language of the court. We cannot see how the defendant was prejudiced by what the trial judge said in this regard. What we have said in the preceding paragraph as to taking into consideration the whole charge applies to the portion of the charge now under consideration.

The final contention made by the plaintiff in error is that the sentence imposed in the court below is erroneous. The plaintiff in error was tried upon an indictment containing five counts. These counts have been stated. The jury returned a general verdict of guilty. The court in pronouncing the sentence did not say upon which particular count of the indictment sentence was imposed. This should have been done. The crimes for which the defendant was indicted, with the exception of that of receiving stolen goods, were high misdemeanors. The crime of receiving stolen goods is a misdemeanor. The correct practice is laid down in the' case of State v. Verona, 93 N. J. L. 390. This was a case where the defendant was convicted of larceny and receiving. The sentence imposed was a minimum term of two years and a maximum term of seven years. Chancellor Walker, in delivering the opinion of the Court of Errors and Appeals, said: “The two counts in the indictment are repugnant, because a person cannot be guilty of stealing certain property and also of receiving that same property from another who stole it, knowing it to have been so- stolen. And even if they were not positively repugnant, the practice is to sentence on one count — the one containing the offense of the highest grade. State v. Dugan, 65 Id. 65; affirmed, 65 Id. 684. Here neither was higher than the other, judged by the penalty impósable. Yet the judge imposed a higher penalty than could be legally inflicted for a misdemeanor, and imposed a sentence of imprisonment for the maximum penalty for a high misdemeanor — seven years. This error, however, may be corrected either in this court or in the court below.” We are of the opinion that the error1 in the sentence in the present case should he corrected in the court below.

The judgment of conviction is affirmed and the case is remanded to the Court of General Quarter Sessions of the county of Atlantic for the purpose of resentencing the defendant in the manner herein stated.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    Louis Lembo, petitioner, v. Patton Paint Company, respondent.
    Alleged Injury to Finger — Failure to Notify Employer Within Statutory Time.
    On determination and rule lor judgment.
   * * * iphg petitioner, Louis Lembo, appeared and testified that on April 15th, 1924, he had squeezed or pinched the end oí the second finger of the left hand while pushing o-r moving a barrel; that he did not report the occurrence to anyone at that time; that on April 16th he went to his foreman, Theodore Miller, and informed Mr. Miller that the •second finger of the left hand was sore and swollen, but made no mention to him of having sustained an accident; that he then went to Miss Cranz, in charge of the first aid. and made no mention to her of having sustained an injury— simply said that the finger was sore and swollen; that he was referred to Dr. Port the same day, and he testified that he made no mention to Dr. Port of having sustained an injury; that he admitted that the first time he claimed to have sustained an injury was on August 11th, 1924, when he called at the office of the Patton Paint Company and notified Mr. Caifrey that he had injured the finger while in their employ.

In view of the admissions on the part of the petitioner in his testimony, and on motion of the representative of the respondent that the petition be dismissed because of the failure of the petitioner to have complied with the statute, which requires notice of injury or accident being given within ninety days after the occurrence of the said accident or injury.

I, therefore, find and determine that the petitioner herein failed to give to the respondent notice of accident or injury within the period of ninety days, as provided for by statute, and on this 29th day of November, 1924, it is. ordered that judgment be entered in favor of the respondent, and against the petitioner, and that the prayer of the petitioner be denied and the petition dismissed.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    Thomas Simpson, petitioner, v. Elwood Vertty, respondent.
    Loss of Fingers by Circular Saw — Employment at Time of Accident Disputed — -Rate of Wages to be Determined. — Respondent Claims Previous Discharge of Employe.

      Mr. Charles A. Malloy, for the petitioner.

      Mr. Hyman Herr, for the respondent.
   ' This is a case coming up for determination under the provisión of the Workmen’s Compensation act, in which the petitioner seeks compensation for 'temporary disability and permanent injury resulting from the amputation of two1 fingers by a circular saw. The fact of the accident and resulting injury are not disputed. The questions to- be decided are: Was the petitioner in the employ of the respondent at the time of the occurrence, and, if so-, what was his rate of wage?

With respect to the former question, there can be no- doubt that the petitioner, Mr. Simpson* entered into- employment for Mr. Vertty. The fact that someone else met the petitioner at the train, and had the preliminary interview with him, is irrelevant, since upon reaching the farm Mr; Vertty retained him, and an agreement was effected for $20 a month with lodging and board. This agreement seems to- have been tentative for one month, at the expiration of which time Mr. Vertty expressed his. dissatisfaction with the- results, and directed the- petitioner to leave. This Mr. Simpson was disinclined to do. The respondent would have it appear that the petitioner had been duly and fully discharged. The petitioner wo-uld have us believe he had not been actually discharged but retained in the employment. On the stand the wife of the respondent rather reluctantly admitted that the petitioner had been allowed to remain, to render such sendee as he was able to perform in exchange for board and lodging, no- money value being placed on this remuneration. Ero-m the' general trend o-f all the testimony, I am forced to the conclusion that this is the correct version of the situation, and, if so, the act establishes the value of the board and lodging at $5 per week, whieh must be considered the wage rate in this case.

It is argued by respondent’s attorney that this injury occurred as the direct-result of Mr. Simpsone disobedience of orders to keep away from the saw. In view of the case of Kolaszynski v. Klie, 102 Atl. Rep. 5, the validity of this defense is of doubtful merit. However, considering the conflicting testimony with regard to Mr. Simpson’s presence at -the place where the wood sawing was being done, it seems uncertain as to just what was said, and what attitude the respondent took. He may have given peremptory orders for the petitioner to go elsewhere, and if there was testimony indicating this it was by the respondent’s wife or her brother, and hence not entirely disinterested. Enrtbermore, it is to be noted that, while this respondent is nnable to read or write, he is of rather exceptional personality, impressing one as being unusually forceful, and I cannot escape the conclusion that had he actually giren an order he would hare been satisfied with nothing short of complete observance thereof. I incline to the belief that his address to the petitioner was more in the line of an admonition, and that since the petitioner’s contract of employment contemplated his performing about the farm such service as he could render, he did not take himself outside the scope of his employment by assisting at the wood pile.

The statute provides that compensation shall be equal to the wage, if same be below $8 per week. The compensation rate will therefore he fire dollars ($5) per week in this case. An order will be drawn up for compensation for the temporary disability and permanent injury experienced.

W. E. Stubbs, Deputy Commissioner of Compensation.


author: Hakby J. Goar, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    Anthony Chiarella, petitioner, v. Colgate & Company, respondent.
    Hernia — Proof Not Conclusive as Required by Statute.
    On petition for compensation. Finding of fact and determination. Dismissal. ■
   * * * This is a cause wherein the petitioner claims that on the 19th day of February, 1924, he sustained a hernia as the result of heavy lifting while in the employ of the respondent. The only undisputed facts in the case axe that the petitioner did complain to his boss on that day of a pain in the groin. He was thereupon examined by respondent’s physician and found to have a hernia. He was unable to do any more work, and on March 6th, 1924, he was operated upon for a hernia. Petitioner testified that the pain, which compelled him to stop work, came upon him in the afternoon of February 19th, while he was engaged :n unloading box shooks from a freight car, and that he had never previously had any such pain. The statute requires “conclusive proof” in cases of this class “that the hernia was immediately caused by such sudden effort or severe strain that — first, the descent of the hernia immediately followed the cause; * * * third, that there was such prostration that the employe was compelled to cease work immediately; fourth, that the above facts were of such severity that the same was noticed by the claimant and communicated to the employer within twenty-four hours after the occurrence of the hernia; fifth, that there was such physical distress that the attendance of a licensed physician wa's required within twenty-four hours after the occurrence of the hernia.” This burden of proof was not sustained. It appeared from the testimony of petitioner's own physician, as .well as that of respondent’s physician, that the hernia probably antedated February 19th, 1921. Moreover, a fellow-workman of the petitioner and his immediate boss both testified that he had complained to them of having a pain in his groin at various times prior to February 19th. The latter testified also, that the petitioner did not unload any boxes on that date, but that he quit work before the actual unloading began. It appears, therefore, that the testimony of petitioner’s, own physician indicates ihat the hernia, was of some standing and was not induced on the day in question by any sudden strain, and petitioner’s own testimony to the contrary is contradicted by two other witnesses. The petitioner failed to satisfy arre of the requirements, of subdivision (x) in paragraph 11 of the Workmen’s Compensation act quoted above.

For the above reasons I find in favor of the respondent, Colgate & Company, and against the petitioner, Anthony Chiarella, and dismiss the petition.

Hakby J. Goar, Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    Stanley J. Treichel, petitioner, v. Ford Motor Company, respondent.
    Determination of Extent of Permanent Disability — Injury to Arm in Falling.
   This case coming before me at a formal hearing on October 15th, 1934, the petitioner being represented by William II. Smith, Esq., and the defendant being represented by George H. Anderson, Esq., I hereby determine as follows:

1. It was agreed and stipulated between the attorneys of the respective petitioner and respondent that the petitioner was injured in an accident arising out of and in the course of his employment with the respondent on March 35th, 19,34; that the. petitioner was earning $36 per week as his wages as a maintenance man, and that bn said March 25th, 1924, the petitioner slipped on the floor on which there was wet paint, causing him to fall against a radiator pipe, as a result of which there is a permanent disability.

2. The only question to decide in this case was the amount of total permanent disability. Dr. Hblden and.Dr. Kessler, appearing for the respondent, testified that in their opinion his right arm was fifteen per cent, totally permanently disabled. Dr. Kessler further testified that he had been treating him fox a period of almost five months, at the rate of three times a week. Dr. ICummel, for the petitioner, testified that he treated 'the petitioner, and his estimate of permanent total disability was fifty to sixty-five per cent.. Dr. John Bassin also testified for petitioner, and in his opinion said that the disability was from fifty to sixty-five per cent.

October 25th, 1924.

3. After taking into consideration the testimonies of the various doctors in the matter, and the testimony of the petitioner himself, I hereby find and determine that at the present time he is entitled for total permanent disability twenty-five per cent, of the right arm, winch amounts to fifty .... weeks at $17 per week, and is also further entitled to temporary disability from the elate of the accident to October loth, the date of the hearing. Seventy-five dollars to be paid by the petitioner as an attorney fee.

Harry J. Goas, Deputy Commissioner.


author: Harry J. Goas. Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    Frank Mickens, petitioner, v. Paterson Milk and Cream Company, repsondent.
    Traumatic Right Inguinal Hernia — Result of Injury in Course of Employment.
    On petition for compensation. Determination of facts and rule for .judgment.

      Messrs. Mendelsohn & Mendelsohn, for the petitioner.
   * * * This is a case wherein the petitioner seeks compensation for a traumatic right inguinal hernia sustained by him as. a result of an accident arising out of and in the course of his employment on February 16th, 1924.

The petitioner, amongst other things, testified that on the day of the accident, and for a long time prior thereto, he was employed by the respondent at $30 per week as a driver and deliverjanan; that as such it was part of his duties to load and unload the respondent’s milk trucks; that on the day of the accident — an icy and slippery day — he was unloading cans of milk from one of the respondent’s trucks-which was standing in its yards; that while he was> standing on the running board of the truck, which was icy and slippery, and was in the act of swinging a can of milk, weighing about one hundred and twenty pounds, from the truck to the ground, he slipped, the can of milk striking him a. terrific blow on the right side of his body, hurling him to- the ground and then falling on top of him. That when struck he felt a ripping or tearing in his right side in the spot where struck, and upon placing his hand on the spot felt a big lump there • that the pain was intense, and he then became unconscious; that when he was revived he found himself in bed, having been carried up- from the place of the accident by Richard Parr, who was working with him at the time on the truck; that he felt sick at the stomach and vomited and had in-, tense pain in the region where he had been struck, where the lump had appeared and which was discolored blue; that his wife placed hot applications to the spot and gave him aspirin tablets every couple of hours, and as many as twelve a day, to> relieve his pain and suffering; that Jacob Deitsch, the president of the respondent, called to see him a couple of hours after the accident, and, when requested to send a doctor, promised to send for Ms insurance company’s doctor; -l hat after numerous such requests Jacob Deitsch finally had him carried from his bed to one of the respondent’s trucks and conveyed to Dr. Russell’s office, where he was •found to he suffering from a right inguinal hernia; that he was, after this examination, carried back to his bed, where he remained for about nine daj^s; that he was unable to work until about September following the accident; that he was treated twice by Dr. Russell and twice by Dr. Thomas A. Clay, who also found him to be suffering from a right inguinal hernia; he was not operated upon; that he was always in good health, and prior to his employment by the respondent had undergone a physicial examination at the hands of Drs. Townsend and then Dr. McAllister, both of who found him to be in perfect health; that he was always able to perform his work at the respondent’s business with ease and without any distress, and that on the day of the accident, and right up to1 the time of the accident, he was in good and perfect health. In these respects he is corroborated by the testimony of his wife. Dr. Thomas A. Clay also testified that he found the petitioner to be suffering from a rigid, inguinal hernia, which was of a traumatic nature.

* * * It is therefore, on this 18th day of November, 19.24-, ordered that judgment enter in favor of the petitioner and against the respondent, and that the respondent pay unto the petitioner as compensation for the traumatic right inguinal hernia sustained by him as a result of the accident, twenty weeks at the rate of $17 per week, and also- the sum of $15 for a truss.

It is 'further ordered that the respondent make an immediate payment to the petitioner of the aforementioned sum of $.155, being $340 as compensation for twenty weeks, and $15 the reasonable cost of a truss.

It is further ordered that, in addition to the foregoing, the respondent pay to- the attorneys for the petitioner the sum of $75 for their services in this proceeding, and also the costs cf these proceedings for stenographer, which are hereby fixed as the sum of $10.

Harry J. Goas. Deputy Commissioner.


author: John J. Stahl, Referee.

text:
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    Thomas Benjamin, petitioner, v. Warner Sugar Refining Company, respondent.
    Injury to Eye — Conflicting Medical Testimony — Extent of Injury Determined.
    On petition for compensation. Pinding of facts and determination. Rule for judgment.

      Mr. Robert W. Thompson, for the petitioner.

      Mr. Richard W. Baker, for the respondent. •
   * * * 1. That the petitioner, Thomas Benjamin, was employed by the respondent, Warner Sugar Refining Company, at their plant in Edgewater, New. Jersey, as an operator on an electric granulating machine, and that he met with accident on the 25th. day of January,. 1924, arising out of and in the course of his employment, and that the accident consisted of a piece of wire flying out of the machine while the same was in operation, striking petitioner in the left eye.

* * * 4. That the petitioner received wages from the respondent at the rate of $33 per week.

5. That, as a result of the said accident, petitioner sustained a severe laceration of the-cornea of the left eye, resulting in an infection of the said eye, which has destroyed the sight of same to the extent of ninety-five per cent, loss of vision. The medical testimony is very conflicting. Dr. Armoury, produced in behalf of the petitioner, testified that a laceration of the cornea, resulting in an infection and causing an inflammatory condition of the eye, such as the petitioner suffered, would be a competent and contributing cause for petitioner’s present diminutive vision of the eye. Drs. Nettle and Sherman, in behalf of the respondent, testified that the laceration and infection of the eye would not in itself cause a loss of vision, but that, as a matter of fact, the petitioner is suffering from an atrophy of the optic nerve, of which, it is their opinion, is of long standing, and not the result of this accident. However, I find, as a fact, that the petitioner, before this accident, never had any eye trouble, and was always able to work on machines requiring good eyesight, and that the petitioner was actually employed by the respondent on such machines for the past six years. That, as a result of this accident, I find that the petitioner is unable to pursue any such work, requiring the operating of power or electric machines, due entirely to the loss of vision of his left eye. I find as a fact that the respondent refuses to take him back in their employ at his former occupation, and that the petitioner is now being employed as a porter in New York City, being the only kind of work he can safely perform.

6. That, as a result of the accident, the petitioner suffered a temporary disability which lasted from January 25th, 1924, to ¿Vpril 5th, 1924, and a permanent disability of the left eve equivalent to ninty-five per cent, loss of vision of the said eye.

7. That the petitioner's attorney, Robert W. Thompson, Esq., as entitled to an allowance of counsel fee, which I fix in the sum of $75, to- he paid by the respondent.

8. Costs will be allowed the petitioner.

It is therefore, on this 8th day of December, 1924, ordered that judgment final he entered in favor of the petitioner, Thomas Benjamin, and against the respondent, Warner Sugar Refining Company, in the sum of $17 per week for ten weeks, as and for temporary disability, covering the period from January 25th, 1924, to April 4th, 1924, and in the sum of $17 per week for a period of ninety-five weeks, for permanent disability, being ninety-five- per cent, loss o-f vision of the left eye, and, in addition thereto;, the sum of $75 to be paid to- Robert W. Thompson, Esq., attorney of petitioner, as a counsel fee, besides costs.

John J. Stahl, Referee.


text:
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    Theresa H. Bolos, petitioner, v. Trenton Fire Clay and Porcelain Company, respondent.
    Employe Killed While Riding on Running-Board of Employer’s Truck — Question of Right on Truck — Accident Occurred While on Way to Resume Work After Noon Hour — Question of When Employment Beginsl — Question of Fault of Employe.

      Mr. Herbert W. Baclces, for the petitioner.

      Mr. Aaron V. Dawes, for the respondent.
   This is a claim coming up for determination under the provisions of the New Jersey Workmen’s Compensation act of 1911, and subsequent amendments, in which a statement of the facts are about as follows:

On and previous to- May 8th, 1924, the petitioner’s husband was employed by the Trenton Eire Clay and Porcelain Company, a subsidiary of the- J. L. Mott Company, as a helper on one of its trucks used chiefly in work about the yards of the plants. These trucks were nightly housed in a garage on the property of the J. L. Mott Company, and behind or near the garage, on the same property, was a stable where, according to the testimony, some of the men were accustomed to eat their lunches. The garage was. a short distance removed and on the opposite side of the public street from the gateway, giving entrance to the yard of the respondent’s plant.

The driver of the truck, ou which the decedent was helper, stated that when the noon whistle blew he understood his asistant to say he was going home for dinner. The widow, however, testified that lie did not come home, but that their daughter, as was her custom, took her father’s lunch to. him at the stable. This phase of the matter is unimportant, since the chauffeur of the truck, from which the decedent fell, testified that about the time of the blowing of the whistle terminating the lunch hour he saw the petitioner’s husband coming from the stable to- the garage, where he mounted the running-board of the truck that this chauffeur was driving, for the purpose of riding to the other yard, where he had left the car on which he worked when the noon whistle blew Claim is made by the respondent that in so doing the decedent disobeyed orders relative thereto1. This contention is without merit in view of testimony by the assistant executive manager that the order consisted of the posting of printed notices some years previous to this occurrence, and that he could not. state whether or not at this time these notices are still in evidence. There is no evidence to- show that the decedent could read the English language, or that he had ever been personally instructed not to ride on the running-board of a truck. Indeed, there was direct testimony that men have at times ridden on the running-board of vario-us trucks. Little weight can he given to this contention, especially in view of the decision in the case of Kloaszynski v. Klie, 102 Atl. Rep. 5.

Resuming the statement of the facts in this case, it appears that the truck, on the running-board of which the decedent was riding, left the garage, traversed the street to the- entrance to the yard where the decedent’s truck had been left, and that at the moment when the truck turned to enter the gate the decedent lost his hold or was thrown by centrifugal force from his position to the pavement, inflicting injuries from which he shortly died. It is established that the whistle to resume work had blown before the occurrence of this accident.

With regard to the legal phrases of this ease> it can be said with assurance that an employe’s employment begins after each recess, when he again comes under the jurisdiction of the employer. It can also be accepted that an employe comes under the jurisdiction of the master the moment he steps on the premises of his employer. No employer would, for a moment, subscribe to any other theory. In the present case, if the grounds on which the garage stood was not owned by thé subsidiary company who; employed this man, the fact remains that' the trucks were kept in this garage, which fact not only gave him rightful entrance to this place, but actually required him to go there in order to begin Ms day’s work. Furthermore, these employes had every reason to believe, and no means of knowing otherwise, than that all the property above mentioned belonged to the concern for which they worked. Fairness to this widow and the dependent children must dictate the finding that the deceased was on the property owned or controlled by his employer when the whistle sounded for work. That he was not at the exact point where he was expected to be at that moment is a matter which, it seems to me;, rightfully belongs to the disciplinary function of plant management, and should have been so dealt with by the officials had the employe remained within reach. Unfortunately, this cannot now be done. To attempt so to do would be to raise the question of fault as a determining factor. Manifest^, this would be unjust, as in no case can fault on the part of the employer subject him to a greater liability than that fixed by the statute. The loss of an arm by a circular saw which an employer has negligently left without the guard actually required by law, cannot react against said employer for an amount greater than the scheduled compensation. That being so', fault on the part of the employe cannot, in justice, be an excuse for penalizing the employe. A prime desideratum of the Compensation law is the elimination of fault as an element of -a case. Where a plant or company property is situated on both sides of a street, it must be conceded that the employe’s employment does not cease while he is proceeding from one such place to the other. The exact point of an accident under these conditions is irrelevant. This reasoning at once disposes of the contention of the respondent that this employe was not Where he should have been, and that he was riding on the running-board of a truck, and brings us face to face with the necessity of issuing an award in favor of the petitioner and her dependent children. An order will be drawn up accordingly.

W. E. Stubbs, Deputy Commissioner of Compensation.


text:
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    Thomas Gorman, petitioner, v. Curtis-Warner Corporation, respondent.
    Inj ury to Foot — Case Reported, Iodine Applied and Work Resumed — Pneumonia Developed and Finally Gangrene, Resulting in Amputation.
    On statement of facts, determination and order.

      Mr. Henry Carless, for the petitioner. ,

      Messrs. Edwards & Smith and Emile Niblo, for the respondent.
   . * * * 3. The said Thomas Gorman, on the said 18th day of January, 1924, was in the employ of the respondent as a carpenter at the wages of $55 per week, and was engaged •in the erection of a building at. Clinton avenue, in the city of Newark, and while engaged in said occupation a piece of timber four inches by four inches and about twelve feet long fell on petitioner’s left foot near the great toe. Said accident arose out of and the course of his employment with the respondent.

4. Mr. A. E. Leadbeater, the superintendent of the respondent, testified that Frank Caprino- was the timekeeper and the person to whom accidents to- employes while working for respondent should be reported. The petitioner testified that immediately ■ after the accident he went to the timekeeper at his office or shanty and reported the accident. That his left foot near the great toe was braised and the skin ruffled, and that iodine was applied. George Beck, a fellow-employe, testified that he saw the‘accident happen and saw the petitioner go to the timekeeper's office or shanty. These facts were not denied. The timekeeper stated that he, since making a prior statement, remembered that the petitioner came to him and that iodine was placed on his left foot; that he asked petitioner if he should make out a report, and tile petitioner said he did not think his injury was serious. I further find and determine that the said respondent had actual knowledge of said accident on the day of the happening thereof.

5. The petitioner continued working for the respondent until the 9th day of February, 1924. During that time he suffered pain in the left foot, followed by a, coldness and numbness so noticeable that at nighttime he could not keep his foot warm, and on several occasions placed his foot inside the oven of a kitchen stove to induce warmth in foot. On February 10th he became sick, which developed into- pneumonia, and on February 14th, 1924, was taken to St. Michael’s .Hospital, in the city of Newark. When he entered the hospital he complained about a coldness and numbness in his left foot. On February 18th, 1924, while in the said hospitai, gangrene developed in the great and first toe of petitioner’s left foot, which I find and determine resulted from the said accident and injury, which occurred January 18th. 1934.

6. By reason of said accident the petitioner’s great toe and first toe of the left foot became infected with gangrene, and the two said toes and part of said left foot were amputated, and petitioner was so injured that he was unable to follow his usual or any other occupation from the said 18th day of February, 1934, until the present time, and will be unable to follow his usual or any other occupation until December 33d, 1934, being a period of forty-four (44) weeks, for which he is entitled to compensation at the rate of $17 per week, amounting to $748.

7. Said accident and injury produced, in addition to said temporary disability, a permanent disability,-■which, consists of the loss of the two said toes and part of said left foot, which equals sixty per cent. (60%) of the loss of said left foot, for which said permanent disability he is entitled to seventy-five (75) weeks’ compensation at the rate of $17 per week, amounting to $1,275.

It is thereupon, upon this 21st day of November, 1924, ordered that compensation for forty-four (44) weeks temporary disability at $17 per week, and seventy-five (75) weeks permanent disability, which equals the loss of sixty per cent, of the-said left foot, at the rate of $17 per week, amounting in all to $2,023, be paid by the respondent to the petitioner.

It is further ordered that Henry Carless, attorney for the petitioner, be allowed as and for his legal services in conducting these proceedings the sum of $250, to< be paid by the respondent, and, in addition thereto^ the sum of $10 as stenographer’s fees, and also the costs allowed by law.

It is further ordered that judgment shall be entered against the respondent in favor of the petitioner in accordance herewith.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    Sarah B. Gladstone, petitioner, v. Trenton Lehigh Coal Company, respondent.
    Dependents' — What Constitutes Dependents — Basis of Compensation — ¡Employe Killed in Automobile Accident.

      21 r. Alexander Budnon, for the petitioner.

      2fr. Raymond E. Taylor, for the respondent.
   This is a workmen’s compensation ease in which the petitioner seeks to secure compensation under chapter 95, laws of 1911, for herself and daughters on account of the death o£ her son while employed by the above respondent.

The facts concerning the accident are disposed of by stipulation. The questions in the case are' — (a) who were dependents; (b) to what extent were they dependents, and (c) on what figure should the compensation rate he based.

Under the decisions one is dependent upon another when he looks to that other for the' ordinary necessities o£ life involving food, raiment and shelter. One is totally dependent only when he looks to another to supply all of these elements, and one is only partially dependent if that other person sup plies only some or a portion of these necessities.

In the present case the mother of the deceased owns the house in which the family lives. Neither she nor anyone else, therefore, depended upon the deceased for shelter, hut inasmuch as he supplied the money necessary for the food and to some degree the raiment to certain members of tbe family, they are to be considered as partial dependents in this case. The record shows that this should include: the petitioner in this cause, who was the mother of the deceased; Esther Gladstone, the youngest sister, and Mamie Gladstone, the oldest sister. This oldest sister, however, while actually a partial dependent, is not to be included in this action, she being over eighteen years of age at the time of the accident. She is mentioned here only because of the necessity of arriving at a weekly compensation rate. The1 record shows that Mamie, due to ill health, was able to work only .part of the time, when she earned $18 per week. The record does not clearly establish just how much she worked, but I think it is reasonable to assume that she was, in general, able to work about one-half of the time.

Jennie Gladstone seems not to have been living at home for at least six months prior to the accident. She cannot, therefore, be included in the list of partial dependents.

It appears, then, that the income of the family was the earnings of the deceased, $32, and the average earnings of Mamie, $9, making $41, upon which the family was maintained. Four persons were supported on this, .so that the upkeep of each may be stated as $10.25. Twice this, or $20.50, may be reasonably assumed to. be the contribution made by the deceased to the support of his mother and youngest sister. Mamie, the oldest sister, may be left out of the calculation, since, she earned just about enough to provide for herself, and her contributions were too small and irregular to. be considered a source of income.

Compensation, therefore, is payable at the rate of forty per cent, of $20.50, or $8.20, until Esther reaches the age of eighteen years, at which time the rate will drop to thirty-five per cent., or $7.17, for the remainder of the three hundred weeks. ■ •

W. E. Stubbs, Deputy Commissioner of Compensation.


author: Bfchaxax, Y. O.

text:
    Ella Jeannette Long, executrix, &c., complainant, v. Edward L. Katzenbach, attorney-general of the state of New Jersey, defendant.
    [Decided December 17th, 1924.]
    Wills — Construction—Creation of Life Estate With Power of Disposal, and Remainder to Charitable Uses With Power of Testamentary Appointment in Holder of Life Estate.
    On final hearing.

      Mr. Henry M.'Ilartmem, for the complainant.

      Mr. Edward L. Kcdzenbach, attorney-general, and Mr. Francis II. McGee, assistant attorney-general, for the defendant.
   Bfchaxax, Y. O.

ILimiah E. Martin died testate in 1922, the owner of a certain parcel of real estate, in addition to personal property of about $20,000. The real estate comprises a house and barn, the residence of testatrix, worth about $8,000. The bill is filed by the executrix to determine the uncertainty as to the true intent and meaning of the will so far as it relates to the disposition of this real estate.

In addition to a. number of small gifts, the will provides as follows, and these are the only portions material upon the present inquiry:

“Next. I give, devise and bequeath to my dearly beloved daughter, Ella Jeannette Long', all my remaining propeity wheresoever situated, both real and personal, for the use of herself and her husband, the Itev. Wm. A. Long', so long as they both shall live.
"I aliso direct that whatever may remain after the death of my daughter, Ella Jeannette Long, and her husband, Rev. Won. A. Long, shall be given to deserving charities. Such charities to be selected with thoughtful care by my said daughter and her husband.
“I further direct that they shall bequeath this money within one year after my death, or as soon as they become possessed of it. ■ I aliso direct that it shall be given in the name of W. H. Martin and wife. I suggest, but do not command, that this bequest be in New Jersey.”

There is no other clause effecting the realty.

Complainant, Ella Jeannette Long, is the sole surviving executrix, and is also the beneficiary named in the foregoing provisions. She is also the sole heir-at-law and next of kin of testatrix. Her husband, William A. Long, predeceased testatrix.

I have no doubt but that under the will (in view of the prior death of William A. Long) Ella Jeannette Long was given a, life estate in the residuary estate, feal and personal, including, of course, the residence property in question, with an added, unlimited power of disposal.

The gift, by the words of the will, is expressly a, life estate, and in such case the beneficiary does not take a fee or an absolute estate by reason of the superadded power of disposal. Wooster v. Cooper, 53 N. J. Eq. 682. In the present case the added power of disposal is not express, but, I think, is clearly implied. See Weaver v. Patterson, 93 N. J. Eq. 170, where the question and the authorities are considered at length. The words “whatever may remain,” in the present will, afford a stronger basis for the implication of the power of disposal than the wording in some of the other adjudicated cases, imparting a clear uncertainty as to whether anything will in fact remain.

I think it is also clear that testatrix intended to- give a remainder, after this life estate and power of disposal, to charitable uses, with power of testamentary appointment in Mrs. Long and her husband, or the survivor of them, to designate the particular charities to be contingent beneficiaries of the remainder.

The complainant, of course, has a power of sale of the real estate. Her absolute power* of disposal of the residuary estate necessarily includes a power to sell and convey the realty forming 'part thereof. Such power of sale would also be implied from the language of the testatrix, where, after providing for the disposition to charities of the contingent remainder of the entire residuary estate, she directs that the life tenants, in making this testamentary appointment of the charities, “shall bequeath this money,” indicating a power of conversion.

A decree will he advised in accordance with the views herein expressed.


author: Buchanan, Y. C.

text:
    Philip F. Kessler et al., complainants, v. Frederick Smith et al., defendants.
    [Decided December 24th, 1924.]
    Attaching Creditors — No Fi. Fa. Issued Out of Law Court — Under Existing Practice An Execution May be Issued Out of Chancery in This Case — Provisions of Decree.
    On final hearing.

      Messrs. Siamler, Siamler & Koestler, for the complainants.

      Mr. John F. Reger, for the defendants.
   Buchanan, Y. C.

Subsequent to the filing of -the conclusions in this cause (2 N. J. Mis. R. 1119), argument has been had as to the requirements that complainants give bond to secure the defendants $5,000 on sale of the interest conveyed by the conveyance under attack, a point that was not argued on the original hearing, and as to which the conclusions followed Horton v. Bamford, 79 N. J. Eq. 356.

Whether or not the course indicated in Horton v. Bamford be proper under certain circumstances, consideration convinces me that there is neither necessity nor propriety in such a requirement in the instant case, and that security should be required from complainants to defendants only as against the expenses of sale.

Complainants are attaching creditors. There is no fi. fa. issued out of the law court. In such case, under the existing practice, an execution may be issued out. of this court. The decree in the present case may so direct, providing for a sale of the equitable and legal interest of Frederick Smith in the lands in question, so1 that the purchaser may stand in the shoes of Frederick Smith and have the same; equitable rights to the new greenhouse, or the increased value by reason thereof, on a, partition or sale in partition, that Frederick Smith would have had prior to the conveyance now set aside in part. The fi. fa. will direct the payment first, out of the proceeds of sale, of $5,000 to the defendants. Charles and Alice Smith, and the balance to be subject, to' the attachment. Charles and Alice Smith can protect themselves by bidding at the sale, as. a, mortgagee or any other security holder would do1 at foreclosure sale.


text:
    Fred T. Walters et al., complainants, v. Milton Mirkin, defendant.
    [Decided December 24th, 1924.]
    Joint Adventure — Partnership Alleged But Claim Abandoned— Existence of a Business Arrangement of Some Sort Probable, but Definite Terms Impossible to Understand From the Evidence — If Action Lies, It Is At Law on Br.each of Contract.
    On final hearing.

      Mr. Henry H. Wiiislein, for the complainants.

      Mr. Sol Phillips Perlman, for the defendant.
   Buchanan, V. C.

The bill of complaint alleges a. partnership agreement between the . complainant Walters and the defendant as to certain dealings in 'real estate. At the hearing complainants tacitly abandoned the theory of partnership, but contend that there was a, joint venture between the two parties as to- certain parcels of real estate; that profits were made on the venture and kept by defendant, who is now asked to account to1 complainant Schlicher as assignee from Walters.

That negotiations were had and some sort of an understanding reached between Walters and Mirkin as to dealings ■in real estate I have no doubt from the evidence; but it is impossible from the testimony to say what were the definite terms and ejects of their conversations. Indeed, it is evident from the testimony of Mr. Walters himself, that his conception of the relationship between himself and Mirkin, and their mutual rights, and duties, was far from being clearly understood even by himself. This is, perhaps, not unnatural, for the law as to joint ventures is, neither completely settled nor commonly understood, and many, if not most persons, enter into some sort of joint interest in a speculative enterprise with no clear thought, or idea, in mind except a division of the anticipated profits, and, perhaps, also the furnishing of the capital, which then appears requisite for the transaction.

Certainly, no partnership was established by the proofs at the hearing. The most that might be found would be a general and indefinite agreement that the parties should thereafter become partners or joint adventurers as to certain transactions thereafter to be agreed on. I am unable to find from the evidence in this case satisfactory proof of the actual existence of a joint adventure. The defendant, Mir-kin (who was called as a witness, and his credibility thereby vouched for by complainants), contra,diets most of Walters’ testimony on this issue, and testifies' that his agreement with Walters was that if Walters found a customer who1 would buy the properties from Mirkin at $10,000 or over, he (Mir-kin) would give Walters half the profits. Admittedly, Mir-kin had bought the properties, with his own funds and in his own name for $6,750.

The testimony of Walters ls, indeed, substantially to the same effect, except as to, the existence of the condition that the sale price he $10,000. He says:

“He [Mirkin] told me lie had three properties he was looking at, and if he bought the property he would take me in on the profits if they were sold.
“He [Mirkin], immediately after purchasing the properties, came into my office and showed me the agreement. He showed me what the properties cost 'him and said, ‘Get busy and sell it.’
“He came back ,and handed me that agreement and said, ‘Go ahead and sell them, and we’ll split the profits.’
“He said he had three properties to buy, and when he bought them he would split the profits, if I done the selling.”

There is no proof whatever that Walters had anything whatever to do with effectuating the sale of the first of the properties to be sold, nor that he effected the sale of the second. Indeed, he says Mirkin told him he wouldn’t give him any of the profits when it should be sold, and he seems thereafter to have ceased efforts to' sell.

Walters has therefore failed to establish his alleged right to recover against Mirkin, and, moreover, it seems clear that his right of action, if it existed, would be at law and not of equitable cognizance^ for damages for breach of contract.

The bill, therefore, must be dismissed.


author: Pnit Cum am.

text:
    WILLIAM WORTHINGTON, PROSECUTOR, v. THE MAYOR, ETC., OF THE CITY OF SOMERS POINT, DEFENDANT.
    Submitted October term, 1924
    Decided December 31, 1924.
    Resolution of Common Council — Street Grading — Cost Will Exceed $500, and Bids Were Not Advertised For — Motion Vague and Indefinite — Taxpayer Has Right to Know Cost and Exact Part of Street To Be Graded.
    On certiorari.

    Before Justices'Kalisch, Black and Campbell.
    For the prosecutor, Clinton C. Shinn.

    For the defendant, Enoch A. Higbee.

   Pnit Cum am.

The certiorari in this ease was allowed to review a resolution of the common council of the city of Somers Point, passed on the 13th clay of June, 1924, in form as follows: “Motion made by Mr. Hentz, duly seconded and carried, that ‘Fourth street be graded, starting at New York avenue, at a cost of not exceeding $500, and that the same be graveled the same distance, gravel to be carted by Ireland at contract price.’ ”

The prosecutor writes clown six reasons for setting aside the resolutions:

1. Because such improvement should be authorized by ordinance under article 20 of Pamph. L. 1917, pp. 319, 370.

2. The cost of grading and graveling Fourth street will exceed $500.

3. The common council did not advertise for bids. Comp. Slat., p. 1021, § 43.

4. The motion is vague and indefinite; it does not indicate whether said grading and graveling be extended in a northeasterly direction or in a southwesterly direction.

5. The motion does not establish what portion of Fourth .street is to b.e improved by the grading and graveling thereof.

6. The motion in' divers other respects is illegal.

We think, for these reasons, the motion or resolution should be set aside. A taxpayer has a right to* know what the contemplated improvement is to cost and the exact part of Fourth street proposed to be graded and graveled.

It is set aside> with costs, so ordered.


author: Pee Oukiam.

text:
    ISADORE DOBEN, RELATOR, v. BOARD OF HEALTH OF THE CITY OF PATERSON ET AL., DEFENDANTS.
    Submitted October term, 1924
    Decided December 31, 1924.
    Ordinances — Permits to Engage In Business of Slaughtering Poultry — Ordinance Gives Board of Health Discretion in Issuing Permits — Mandamus Refused.
    On mandamus.

    Before Justices Kalisch, Black and Campbell.
    For the relator, Randall B. Lewis.

    For the defendants, Edward F. Merrey.

   Pee Oukiam.

A rule to show cause was allowed in this case July 31st, 1924, why a peremptory or alternative writ of mandamus should not issue, compelling the board of health of the city of Paterson and Frederick P. Lee, health officer of the city to grant and, issue to the relator a permit to engage in the business of preparing live fowl for sale, or selling live fowl, or slaughtering poultry at No*. 292 Godwin street, Paterson, New Jersey, upon paying the required fee of $25 for such permit, under an ordinance of the city of Paterson. Section one (1) of said ordinance provides "such permit ma.y be issued by said board of health upon the1 payment of: $25.” The board has a discretion in the matter of issuing or refusing permits.

Wc think a writ of mandamus should be denied, and it is so ordered.


author: Per Curiam'.

text:
    NELROSE REALTY COMPANY, RELATOR, v. WILLIAM C. HOPPE, INSPECTOR, ETC., RIDGEFIELD PARK, DEFENDANT.
    Submitted October term, 1924
    Decided December 31, 1924.
    Ordinances — Zoning—Alternative Writ Issued so That Facts May Be Presented to Court.
    On mandamus.

    Before Justices Kaltscii, Black and Campbell.
    For the relator, Maley & Male.y.

    For the defendant, Morrison, Lloyd & Morrison.

   Per Curiam'.

The relator in this ease applied to the inspector of buildings in the village of Ridgefield Park for a permit to erect a one-story brick building, to contain three stores, on his lot forty feet by one hundred feet on the westerly side of Tea-neck road, eighty feet south of Cedar street, in accordance with the Ridgefield Park building code. The permit was refused on the ground that the plans submitted by the relator did not comply with subdivision JD of section eight (8) of the zoning ordinance, which refers to the height and area regulations controlling district B zones. We think an alternative writ should issue in tins case, so that the facts may he presented to the court on which a record can be made, if it is desired, and such will be the order of the court.


author: Pee Ctjeiam.

text:
    THEODORE BACHE, PROSECUTOR, v. THE TOWN OF PHILLIPSBURG, DEFENDANT. JOHN SEARLES, PROSECUTOR, v. THE TOWN OF PHILLIPSBURG, DEFENDANT.
    Submitted October term, 1924
    Decided December 31, 1924.
    Ordinances — Conviction Before Mayor For Violation of Bill Posting Ordinance — Appeal to Common Pleas — Certiorari—Review May Be By Appeal or By Certiorari But Not By Both.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.
    Eor the prosecutors, John M. Cody and Thomas P. Fay.

    Eor the defendants, Sylvester C. Smith, Jr.

   Pee Ctjeiam.

The writs of certiorari bring np the- convictions of the prosecutor before the mayor of the town of Phillipsburg for the violation of an ordinance No-. 269, known as the bill-posting ordinance on June 30th, 1922. Notice of appeal to the Warren County Court of Common Pleas was served and a bond furnished. The appeal was noticed for trial on September 26th, 1922, before the Warren County Court of Common Pleas.

The writ of certiorari was allowed October 5th, 1922. The prosecutors write down twenty-seven reasons for setting aside the convictions, but we think the case is controlled by what this court said in the case of Furman v. Motley, 67 N. J. L. 174. The prosecutors were entitled to have the judgments of the mayor reviewed, either by appeal or by cerliorari as they should select, but not by both methods. Having selected the remedy by appeal, their right to review by certiorari no longer exists, State v. McCarty, 2 N. J. Adv. R. 8; State v. Court of Common Pleas, No. 249, May term, 1924. Moreover, the prosecutors having failed to file a brief, it will be presumed that the further prosecution of the certioraries are abandoned. Points not argued will not be considered; they will be presumed to have been abandoned.

The certioraries are dismissed and the judgment of conviction in each case is affirmed, with costs.


author: Per Curiam.

text:
    HAROLD HAUCK, PETITIONER, v. CLIFFORD MacEVOY COMPANY, DEFENDANT.
    Submitted October term, 1924
    Decided December 31, 1924.
    Workmen’s Compensation — Review of Findings by Compensation Commissioner By Common Pleas Court, and Findings Sus>tained — Conflict in Testimony Regarding Cause of Infection —Case Tried With Care in Each Instance, and Finding Sustained.
    On certiorari.

    Before Jnstices Kalisch, Black and Campbell.
    For the petitioner, William II. Smith.

    For the defendant, Collins & Corbin.

   Per Curiam.

Tlie certiorari in this ease was allowed to review a judgment of the Essex County Court of Common Pleas- affirming a judgment of Harry J. Goas, a deputy compensation commissioner in a workman’s compensation case.

The defendant files- seven reasons for a reversal of the judgment of the Court of Common Pleas directed in tire main to the point, that the judgment was not justified by the evidence. The accident happened on July 6th, 1922, at about four p. m., in the Newark Centre Market. The petitioner was standing on a plank which broke and threw the petitioner to the ground about fourteen feet below. The petitioner sustained injuries about the face and right hand. There is a conflict of testimony as to whether the infection was causel by a boil or whether it came from the injury. Judge Porter reviewed the case at some length in his findings in the Court of Commpn Pleas, affirming the judgment of the deputy compensation commissioner. With these findings we are satisfied. The case has been tried with care, not only in the first instance, but on review.

The judgment of the Court of Common Pleas of 'Essex county is affirmed, with costs.


author: Pee Cubiam.

text:
    HOWARD ROBINSON, PETITIONER, v. AUTO CAR SALES AND SERVICE COMPANY, DEFENDANT.
    Submitted October term, 1924
    Decided December 31, 1924.
    Workmen’s Compensation — Review of Compensation — Commission's Findings By Common Pleas Court — Sufficiency of Evidence and Allowance for Medical Services Disputed — Judgment Sustained.
    On certiorari.

    Before Justices Kalisch, Blacic and Campbell.
    For the petitioner, Francis A. Gordon.

    For the defendant, William P. Braun.

   Pee Cubiam.

' The certiorari in this case was allowed to review a judgment of the Court of Common-Pleas of Union county, affirming a judgment of James O. Boyd, a deputy compensation commissioner in a workman’s compensation case. Howard Robinson, the petitioner, was injured on October 2d, 1922, while endeavoring to crank a car in the garage. The car started, rolled forward, pushing him against the rear of another ear directly behind him, causing the injury. The principal contest, both before the deputy compensation commissioner and in the Court of Common Pleas, was as to the sufficiency of the evidence to support the judgment rendered. The attack is also specifically made upon an allowance of $250 for medical services. Our reading of the testimony leads us to the same result as that reached by the Court of Common Pleas, viz., the judgment should he affirmed, and it is hSreby affirmed, with costs.


author: Pee Cdeiam. .

text:
    NELROSE REALTY COMPANY, RELATOR, v. CARL R. FRANKE, INSPECTOR, ETC., TOWNSHIP OF TEANECK, DEFENDANT.
    Submitted October term, 1924
    Decided December 31, 1924.
    Ordinances — Zoning—Case Within Rule in Ignaciunas v. Risley Case.
    On mandamus.

    Before Justices Kalisch, Black and Campbell.
    For the relator, Maley Malay.

    For the defendant, Fredemcic W. Mattoclis.

   Pee Cdeiam. .

. A rule to show cause was allowed in this case directed to Carl E. Franke, inspector of buildings of the township of Teaneck, Bergen county, New Jersey, why a peremptory writ of mandamus should not be issued, commanding him to issue a permit for the erection of a building in accordance with the plans and specifications filed by the relator.

We think the facts of this case fall within the principle laid clown in the case of Ignaciunas v. Risley, 1 N. J. Adv. R. 1023; affirmed, 2 Id. 852, which case is controlling.

A peremptory writ is ordered upon paying of the legal fees.


text:
    NEW JERSEY SUBURBAN WATER COMPANY, RELATOR, v. JOSEPH O. RIORDAN ET AL., DEFENDANTS.
    Submitted October term, 1924
    Decided December 31, 1924.
    Contracts. — Municipal—Water Contract Between Municipality and Water Company — Extension of Existing Contract — Alternative Writ of Mandamus Allowed.
    On mandamus.

    Before Justices Kalis ch, Black and Campbell.
    For the relator, Thomas J. Brogan.

    For the defendants, Hugh G. Barrett and Marie A. Sullivan.

   Per Curiam.

On the 26th of September, 1924, a. rule to show cause was allowed in this case directed to- Joseph P. Riordan and Francis J. McDonald, the mayor and town clerk, respectively, of the town of Harrison, New Jersey, why a. peremptory writ of mandamus should not issue commanding them to execute the agreement presented to them by Hugh C. Barrett, corporation counsel of the town of Harrison, under and by virtue of the resolution of the town council, passed July 15th, 1924, to extend the contract of September 15th, 1903, between the New Jersey Suburban Water Company and the town of Harrison for'a period of fifteen years, from the date of expiration of said contract, upon the same terms and conditions as are contained and set forth in the said agreement of September 15th, 1903, excepting as to. the rates to be charged for the water furnished by the said company to. the town of Harrison.

Our reading of the record in this case and the respective briefs of counsel lead us. to the conclusion that an alternative writ of mandamus should issue directed to the said Joseph P. Riordan and Francis J. McDonald, the mayor and town clerk, respectively, of the town of Harrison, defendants, and such is the order of the court.


text:
    JOHN C. CLAYTON, RELATOR, v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF MONMOUTH, DEFENDANT.
    Submitted October term, 1924
    Decided December 31, 1924.
    County Officers — Physician to County Jail — Sheriff Cannot Appoint Without Statutory Authority — No Such Authority Exists] — Mandamus Will Not Lie to Compel Freeholders to Pay Salary to Physician So Appointed.
    On mandamus.

    Before Justices Kalisch, Black and Campbell.
    For the relator, Geran & Matlaclc.

    For the defendant, William A. Stevens.

   Per Curiam.

A rule to show cause was allowed in this case, directed to the board of freeholders of Monmouth county, to1 show canse why a peremptory or alternative writ,of mandamus should not issue commanding the said board to pay a voucher of the relator for $250, being three months5 salary, as the physician of the common jail of Monmouth county. The relator, Dr. John O. Clayton, was appointed as such by the sheriff of the county on November 1st, 1923. The question involved is, who has the right to make such appointment? It is conceded there is no statute giving the sheriff expressly such power, and we have been unable to' find any. The sheriff has uo such power unless it is conferred by authority of the legislature. We think he has no' such power. A writ of mandamus will therefore be denied, with costs, and it is so ordered.


text:
    BENJAMIN F. WOODING, PROSECUTOR, v. ALEXANDER MacALISTER ET AL., DEFENDANTS.
    Submitted October term, 1924
    Decided December 31, 1924.
    Physicians — License to Practice — Licenses Issued at Discretion of Board of Medical Examiners — License Refused on Ground That Applicant From Another State Was Licensed By That State On Applicant's College Diploma, and Not On Examination.
    On mandamus.

    Before Justices Kallsch, Black and Campbell.
    For the prosecutor, Elmer T7. Iiomine.

    For the defendants, Edward L. Katzenbach, attorney-general, and Grover G. Rickman, assistant attorney-general.
   Per Curiam.

A rule to show canse was allowed in this case1, directed to the members of the state board of medical examinéis of the State of New Jersetp to show cause why a peremptory or alternative writ of mandamMS should not be issued commanding and enjoining them to issue to the prosecutor a license to practice medicine and surgery in New Jersey.

The record shows that the prosecutor, Dr. Wooding, was licensed to practice medicine and surgery in the State of Colorado on July 1st, 1890. His Colorado license states that the license was granted by registration of his medical diploma from, the Rush Medical College. It was not by examination, and for this reason the New Jersey state board of medical examiners refused him a- license to practice in New Jersey on March 26th, 1924. As a justification of such refusal the board invokes the statute of New Jersey (Pamph. L. 1921, pp. 702, 705, § 4, ch. 221), which provides “that he (i. e., the applicant) has been examined and licensed by the examining and licensing board of another state of the United States, or by the national board of medical examiners, &c.” The act further provides the board (i. e., the medical board) “may, in the discretion .of the said board of medical examiners of this state, grant a license to practice medicine and surgery.” It is quite clear there is a discretion- rested in the board to grant or withhold a license under the statute, hence.

The application for a writ of mandamus is therefore denied.


author: SMATHERS, J.

text:
    Atlantic County Court of Common Pleas.
    Albert Dutton MacDade, executor of the estate of Charles J. Reilly, deceased, plaintiff, v. Mary Reilly and Carroll W. Brown, defendants.
    Gifts — From Husband to Wife — To Establish, There Must Be Clear Evidence of Delivery With Intent to Divest — Joint Ownership In Lands As Tenants By the Entirety — Land Sold and Money Deposited In Name of Husband — Wife Entitled, to Accounting By Husband’s Executor.
    On action at law. In replevin.
   SMATHERS, J.

The executor of Charles. J. Reilly, deceased, instituted the above suit against Mary Reilly, widow of tbe deceased, and Carroll W. Brown, alleging that the defendants had possession of a certain Packard automobile belonging to the deceased, Charles J. Reilly, at the time of his death.

The widow, Mary Reilly, answering, alleges a. gift of the said Packard automobile to her by her husband in his lifetime. The only evidence offered by the defendant Mary Reilly, to support the contention of a gift" of the said Packard automobile to her by her husband, was' that the Packard car was kept in Carroll Brown’s garage, and that she was in possession of the keys to- the car, and that the keys were not found by her or stolen by her. This testimony signally fails to- establish a gift of the- Packard automobile by the deceased husband, Charles J. Reilly, to his widow, Mary Reilly, the defendant.

“To- establish a gift from a. husband to his wife, there must be clear evidence of the delivery of the property with the intent of divesting the husband of all dominion over it, and vesting title in the- wife.” Farrow v. Farrow, 72 N. J. Eg. 421.

The opinion of the court is that Albert Dutton MacDade, executor of the/ estate of Charles J. Eeilly, deceased, plaintiff, is entitled to an order against Mary Eeilly and Carroll W. Brown, defendants, for the possession of the Packard automobile described as five-passenger, single six Packard touring car, 1921 model, manufacturer’s No.'U.4095, motor No. U.4273 E. '

The defendant, Mary Eeilly, widow of the deceased husband, by way of counter-claim against the executor of the estate of Charles J. Eeilly,'deceased, alleges that she and her deceased husband, prior to August 24th, 1922, held a certain parcel of real estate in Atlantic City in their joint names as tenants by the entirety; that on the 24th day of August, 1922, she and her deceased husband conveyed the said property held by them, as tenants by the entirety, to one Abe Zable; that a deposit of two thousand ($2,000) dollars.was given by the said Abe Zable to her deceased husband, Charles J. Eeilly, at the time of the execution of the agreement for the sale of the said property, which said deposit was deposited by the said Charles J.. Eeilly, deceased, in his lifetime to his individual account; that on the 24th day of August, 1922, settlement was made at the South Jersey Title and Einance Company, whereupon the said Charles J. Eeilly, deceased, and Mary Eeilly, his wife, executed and delivered to the South Jersey Title and Einance Company a deed for the said property “held by them as tenants by the entirety, and that on the same date the South Jersey Title and Finance Company issued its check payable to the said Charles J. Eeilly and Mary Eeilly in the sum of eleven thousand one hundred and seven dollars and seventy-one cents ($11,107.71); and that the said Mary Eeilly endorsed said check, and the said check was taken by her said husband, Charles J. Eeilly, deceased, to the Chelsea Safe Deposit and Trust Company, and deposited by the said Charles J. Eeilly, deceased, to his individual account; that she, as widow and survivor of the said Charles J. Eeilly, deceased, claims one-half of the proceeds of the sale of the property held by her deceased, husband, Charles J. Reilly, and her, as tenants by the entirety, and also claims the whole of the proceeds of the sale of the property by reason of the fact that she survived her said husband.

The executor of the estate of Charles J. Reilly, deceased, contends that there wa.s a gift of the proceeds of the sale of the property held by Charles J. Reilly, deceased, and Mary Reilly, as tenants by the entirety, when Mary Reilly endorsed the said check, representing the proceeds of the sale of the realty, and delivered it to her husband, and permitted it to be deposited by him in his individual account..

In the case of Buttlar v. Buttlar, 67 N. J. Eq. 136, which said opinion was subsequently affirmed by the court of errors and appeals, it was held that a husband and wife having an estate in land by the entirety, where one of the parties obtained an absolute divorce, the result of the divorce decree was to change the estate to a. tenancy in common.

Following the reasoning of this decision, the conclusion of the court in the present case is that when Charles J. Reilly, decased, and his wife, Mary Reilly, met at the South Jersey Title and Finance Company, on the 24th day of August, 1922, and voluntarily signed and executed a deed convoying the property they held as tenants hv the entirety to one Abe Zable and possessed themselves of the proceeds of the sale, they divested themselves of the estate by the entirety, and by their voluntary act destroyed the estate by .the entirety and the right of survivorship, and became tenants in common in the proceeds of the sale of the realty. Each entitled to onelialf of the proceeds of the sale of the realty.

Counsel for the executor contends that when Mary Reilly endorsed the said check made payable to' her deceased husband, Charles J. Reilly, and her, and delivered the said check, so endorsed by her, and permitted the deceased husband to have the check deposited to his individual account, she, as a matter of law, gave the said check, or the proceeds represented by the check, to her deceased husband.

The law in this state does not support such a contention. In the first place> there is no1 evidence in the case to1 support the contention of counsel for the executor. The presumption of law is against a gift from a, wife to her husband-of her separate estate. A husband, who having received money from his wife, who alleges a gift of the money, is required to prove -by clear evidence the delivery of the property with the intent of divesting all dominion over it and vesting title in himself. There is no such proof in the present case.

"Mere possession by an endorsee of a negotiable note^ regularly endorsed by the payee, is, in ordinary cases, all that is required to make a complete case for the endorsee. Here, however, the parties were, in consequence of their matrimonial connection, incompetent to enter into a legal contract with each other. Notwithstanding tire capacity of a married woman to acquire^ use and dispose of property has been very greatly enlarged, still the statute making the enlargement declares, ‘nor shall anything herein enable husband or wife to contract with or to sue each other, except as heretofore/ The purpose of this provision has been defined. Chief-Justice Beasley, speaking for the supreme court, says its ‘object -was to leave the husband and wife, touching their capacity, to bargain together on the ancient footing of the common law/ ” Farmer’s Executor v. Farmer, 39 N. J. Eq. 212.

My conclusion, therefore, is that there was no' gift of the proceeds of the sale of the realty by the wife’s endorsement and delivery of the check.

Judgment, therefore, will be entered in favor of the wife, Mary Reilly, and against Albert Dutton MacDade, executor of the estate of Charles J. Reilly, deceased, for six thousand five hundred and fifty-three dollars and eighty-six cents ($6,553.86), representing one-half of the proceeds of the sale of the realty held by them as tenants by the entirety.