author: Berry, V. C.

text:
    In the matter of John S. Martin, Amalgamated Clothing Workers of America, Bruno Bellia, John Sala, also known as Joseph Sala, also known as Joe Scala, Ignazio Pullaro, Tony Scarpini and Salvatore Lopresti, charged with contempt of an injunctive order of the court of chancery granted in the cause of “Sigmund Eisner Company, a corporation, complainant, v. Amalgamated Clothing Workers of America et al., defendants.”
    [Decided February 27th, 1934.]

      Mr. Bichará M. Stout (Mr. William, J. O’Eagan), for the-defendants.

      Mr. Merritt Lane, for the court.
   Berry, V. C.

(Orally.)

This is a proceeding in the nature of a criminal contempt-growing out of the issuance of an order to show cause in the-suit of Sigmund Eisner Company against Amalgamated Clothing Workers of America and others, and which order to show cause was advised by Vice-Chancellor Stein, and imposed certain restraints upon the defendants and those acting-in concert with them. That order was advised on the 23d day of August, 1933. On the 28th day of August, and after service of the order to show cause containing the injunctiverestraint, proceedings in contempt were instituted in this-court against the respondents in this proceeding, and numerous other respondents-, alleging violation of the restraints imposed by the order to show cause. Orders to show cause why the respondents in those petitions should not be adjudged in-contempt of court were issued and served. Apparently little-attention was paid, either to the original order to show cause or the orders to show cause issued in the first contempt proceeding, because two days later, the present proceeding was instituted and six of the so-called strikers, or representatives-of the Amalgamated Clothing Workers of America, and the Alamgamated itself, were charged with violation of the restraints imposed by the original order to show cause, notwithstanding the fact that the same parties were already under charge of having previously violated that order.

This is a criminal proceeding The contempt charge, if it is proved, is a criminal offense. It is because of the nature of the offense charged and the seriousness of the matter, not only to this community but to the State of Hew Jersey and to the country at large, and of the consequences which might result to the respondents themselves, from a conviction upon the charges, that I have allowed the widest latitude possible in the presentation of the defense, and particularly is what I have said applicable to the latitude allowed counsel in his remarks here this morning. I may say, however, that I was perfectly amazed that any officer of this court should advance as an argument against a conviction in this cause, some of the arguments which were voiced here to-day. It is only because of the nature of this proceeding that I permitted him to continue. Apparently, and this is the only excuse that can be offered for the advancing of such arguments, counsel has entirely misconceived the nature of the proceeding and the issue. The issue here is not the rights of employer and employe as related to each other; it is not the rights of the respondents to exercise any assumed or fancied rights under the HI E. A.; but the issue is plain, and stands out boldly, and is only this: Has the order of this court been violated to such an extent as constitutes a contempt of the court and its processes? That is the only issue here. Whether or not the original order to show cause was rightly issued—and I think it was—or whether it contained restraints broader than the circumstances warranted—and I think it did not—is entirely beside the question.

This court is an arm of the state government. Our government is divided into three separate and distinct branches, the executive, the legislative and the judicial. Heither of those branches has any right to encroach upon the prerogatives of the other. This court is of the judicial branch of the government. Courts are not servants of the people. The legislature may be said to be, in a sense, the servant of the people. The executive, to a degree, may also be said to be the same, but to a less degree than the legislative branch of the government; but the judicial branch of the government is an arbiter of disputes between citizens, or of disputes which may arise between citizens and the government itself. If orderly government is to continue, then the judicial branch of that government and its proeessess must be respected; otherwise anarchy will prevail. It is not only the person who presides in a court who stands back, or who should stand back of its decrees; it is the entire government of the state itself, and all the power of that government, wherever it rests, because this court may call upon, if necessary, the entire forces of the government to carry out such decrees. It is important, therefore, if orderly government is to continue, that the orders and decrees of this court must be respected and obeyed. Because that is so, I say that the issue here is not whether the original order issued was providently issued, or whether the restraints imposed were broader than they should have been. Orderly procedure demanded, if there was any such thought in the minds of respondents or of counsel, that prompt application be made to the court to modify its previous order. Ho such application was made. The order stands to-day as it was issued, and has been continuously in force from the date of its issue.

The law of this state has been laid down repeatedly by this court and the court of errors and appeals, so that no person need be ignorant of his or her rights in matters of this kind.

Let me say now, in terms which may not be misunderstood, that the H. R. A. legislation does not in the least affect the law of this state as previously laid down in our decisions, neither statute law nor the law as expounded by the courts themselves; nor could it. This is a constitutional government, and the laws which are enacted must conform to the provisions of our constitution. If not, they are nugatory. But no additional rights have been granted to labor by the H. R. A. which would authorize or justify in any degree the threats and acts of intimidation and violence complained of here. So much for the issues and the position which this court must assume.

That brings me to the question of the guilt or innocence of the respondents to this proceeding. As to some of the respondents, no defense whatever is interposed. The Amalgamated Clothing Workers of America presents no defense; it is not even represented here in this proceeding. The respondent Sala did not take the witness stand to deny any of the charges against him; nor did the respondent Lopresti. The respondents Martin, Bellia, Pnllaro and Scarpini did take the witness stand, but none of them denied some of the charges in the petition. The only charges which have been denied by any of these respondents, except Martin, are the charges of actual violence or the creating of any disturbance, a very small part of the charges which have been preferred. The main charge forming the basis of this proceeding is the violation of that portion of the restraining order which prohibited picketing in and about and around or near the factory of the complainant in the original cause. By their failure to deny such charges, those respondents who took the witness stand must be taken as having admitted the truth of the testimony offered on behalf of the prosecutors in this proceeding. The testimony with respect to that portion of the charges is overwhelmingly in support of them, and they must be taken to have been proved with respect to all of the respondents except Martin, as to whom I shall have something to say in a moment. It would be a waste of time for me to recount and repeat in detail the testimony which has been given in support of the charges of violation of the court’s order. I shall not attempt to do so. The record speaks for itself.

With respect to the respondent Martin, the only charge against him which finds any basis in the supporting testimony or in the evidence submitted on behalf of the prosecutors, is that he acted in concert with the picketers and those who were in charge, and directed it. When he took the stand in his own defense, his testimony was such, and I think by design, as would create the impression that he was merely an onlooker and had nothing to do, particularly with this affair, except in the capacity of a publicity agent. My own examination of him on the witness stand convinced me that he was nothing 'of the kind. In fact, he admitted that he was one of the principals in advising the so-called strike, and be was undoubtedly one of the men back of the activities of the so-called strikers and directing their movements. But the only charge which has any basis in the evidence in this proceeding is that he violated the order with respect to picketing. The only testimony, as I recall it, to that effect was the testimony, of Mr. Greenblatt. My own examination of Mr. Greenblatt finally placed Mr. Martin at a position some two hundred feet away from the picket line, and while the circumstances are suspicious, and while I might perhaps be justified in assuming that his purpose in being there was to aid in the direction of the activities of the so-called strikers, yet there is some doubt in my mind, and as this is a criminal proceeding, I am obliged to give him the benefit of that doubt. I therefore pronounce the respondent Martin not guilty of the charges preferred against him in this proceeding.

I pronounce all of the other respondents guilty.

I do not propose at this time to impose sentence on these respondents because there are other contempt proceedings here to be disposed of, but those respondents whom I now pronounce guilty will stand at the bar and will not depart this court without leave.

John Sala (takes position at bar).

Bruno Bellia (takes position at bar).

Ignazio Pullaro (takes position at bar).

Tony Scarpini (takes position at bar).

Salvatore Lopresti (takes position at bar).

The Amalgamated Clothing Workers of America, not being present or represented, cannot very well stand at the bar.

You five men have been adjudged guilty oí contempt this court, and you will be required pending the imposition of sentence, to post bail. You will, therefore, not depart from this court room without special leave of the court, and you are now placed in the custody of the sergeant-at-arms. The amount of bail to be fixed will be the same amount of bail as was fixed in the attachment with respect to each of you, which was issued in this proceeding.

The respondents Bellia and Sala are required to furnish bail in the sum of $2,500 each.

The respondents Lopresti, Scarpini and Pullaro, $1,000 each.

You may furnish that bail at any time during the day, and you will be allowed a reasonable opportunity to procure such bail. The sergeant-at-arms will arrange with you, if necessary, for you to leave here in the custody of an officer, if it is necessary for you to leave here for that purpose, and you may furnish the bail any time during the day.

September 11th, 1933.

The respondents being called to the bar for sentence on September 14th, 1933, the court made the following statement :

The court: The duty which now devolves upon me is, I think, perhaps the most unpleasant duty I have had to perform since I have had the honor of sitting in this court. I perform that duty, not reluctantly, but regretfully.

We can all recall that when we were children it was sometimes necessary for our parents to take disciplinary measures with us and punish us for violations of rules of conduct laid down by them, or rebellious conduct indicating a challenge of their authority. We now are but grown-up children. The punishment which was imposed upon us as children by our parents was not imposed in any spirit of vindictiveness or with any desire to punish for the sake of punishing, but merely that we as children might be better children and learn to recognize and obey the authority of the parent.

I do not suggest that I to-day stand in the position of a parent toward you men, or that you occupy the position of children, speaking as an individual; but the court does, in a measure, occupy that position; and you, as respondents convicted of having challenged the authority of the parent ■or court, stand in the position of rebellious children. It is not with any spirit of vindictiveness that I now undertake to perform the duty which is cast upon me by the law. I perform that duty, as I have already said, regretfully but not reluctantly. And so the parent, in the punishment of his -children, performs his duty, not reluctantly, but regretfully, .and yet with a determination that the parental authority shall be recognized and obeyed. It is with that same determination that the lawful authority of this court, and of the government of which this court is a part, shall be recognized, and the rules of conduct laid down by it shall be obeyed, that I now perform the duty cast upon me by the law.

It is particularly difficult to perform such duty in matters of this kind, especially where those at the bar are of foreign birth, and may not, despite the years that they have lived here, thoroughly understand the nature of the government of their adoption. This government is not a government of men, but a government of laws. In a despotism, a despotic-government, the laws are made by the individual monarch for his own benefit, the protection of his rights and the subjugation of his subjects; but in a republic such as that in which you live, and of which you are adopted citizens, the laws are made for the protection of your rights and those of your fellow citizens. But all rights of the individual are relative, not as in a despotic government, absolute; and the-rights of one citizen must be measured and modified by those-of others. Despite the fact that all of you men have resided in this country for more than a score of years, I doubt whether all of you yet understand the principles of the government of your adoption, or the rights of the citizens of this republic. It is because of that question which is in my mind that the-punishment which I am about to impose will perhaps be-more tempered with mercy than is warranted by the circumstances of this case. But Montesquieu, in his great work “The Spirit of the Law,” has said that “the severity of punishments is fitter for despotic governments, whose principiéis terror, than for a monarchy or a republic, whose spring is honor and virtue.” And I would rather err on the side of leniency than severity.

So, in meting out sentence to you men to-day, it is not' my purpose to measure that sentence in terms of terror or fears, but rather in terms of discipline which may produce that virtue which constitutes good citizenship.

I regret that nowhere in this proceeding has there been the-slightest indication on the part of any one of you of any regret for the disobedience of the orders of this court. The contumely which you showed to the court by the violation of its order you have confined to exhibit here in this court room. The authority of this court has been challenged by you up to this very moment, without any words of explanation or mitigation and without any sign of repentence; without any sign of compunction, and without any suggestion of an apology for what you have done. Under these circumstances, I can but assume that your attitude to-day is exactly the same as that taken by you when the original restraining order which you have been convicted of violating was served upon you. This is cause for regret.

In every moment of this kind there are always those who take the lead and those who follow like sheep following the shepherd; and so, in this case, there were leaders in the .attitude of contempt assumed by those who violated the restraining order of this court, and there were followers who followed like dumb animals, and perhaps without any clear understanding of the purpose of their following or of the reasons lying back of it. Two of these leaders stand before me to-day convicted of having challenged the authority of this court and disobeyed its decree. They, too, I think, had leaders, but unfortunately those leaders are not here. They were wise enough to keep out of the jurisdiction of this court .and use you, Mr. Sala and Mr. Bellia, as catspaws in their game, as you, too, have used these other three men who stand beside you as catspaws in your game. It is you, Mr'. Sala and Mr. Bellia, who must bear the brunt of the punishment which is to be imposed this morning, because you were the leaders, the inciters, the men who stood back of this disobedience on the part of the other three, who are behind the challenge of the authority of this court, and when I speak of the authority of this court I mean the authority of the government itself under which you live. You others, Pullaro, Lopresti and Scarpini, although you have shown no spirit of regret or contrition, and no disposition even now to recognize the authority of the government under which you live, are not as blamable as your leaders, because I believe your understanding is less, and that you have been led astray, in a sense unwittingly; still you have lived under the protection of this government long enough to recognize the fact that it is a government of laws and not of men and that rights guaranteed you by the laws of this republic are only relative, and that others as well as you have rights which must be equally protected by those laws.

The punishment which I shall now impose upon you is imposed as an admonition to you not to again challenge the authority of this court nor to again disobey the rules of the government under which you live; and it is also imposed as an admonition to others who might be minded to do as you have done. It will be greater than it would have been had you shown a more contrite spirit; but much less than the circumstances warrant were I minded to make the punishment fit the crime.

Mr. Sala and Mr. Bellia, I sentence you and each of you to imprisonment in the county jail of Monmouth county for a term of ninety days beginning to-day.

Mr. Pullaro, Mr. Lopresti and Mr. Scarpini, because I believe you to be less guilty than these your leaders, I sentence you and each of you to imprisonment in the county jail of Monmouth county for a period of thirty days.

Sergeant, I now place these respondents in your custody, with instructions to have them conveyed forthwith to the county jail of this county and delivered to the sheriff.

There is one other respondent in this proceeding which was found guilty of contempt of court and upon which sentence of the court must now be passed and that is the respondent the Amalgamated Clothing Workers of America. It is a corporation, and it has been well said that a corporation has no soul; neither has it any personality upon which the punishment of the court may be inflicted. Of course, a corporation always assumes the character of its leaders and officers. The attitude of this corporation toward this court and toward constituted authority generally, is well shown by the remark which its representative made to the witness Clancy in Washington when this controversy was before the federal labor board. That remark indicated that that representative did not recognize any authority in this court, which means that he did not recognize constituted authority in government; that he proposed to be a law unto himself, and that he would not obey any orders which might be issued in any court unless it pleased him to do so. It is unfortunate for the corporation, but fortunate for him, that he is not here subject to the jurisdiction of this court in this proceeding. The corporation which he represented, however, and for which he spoke, is technically here, and stands convicted of contempt of court. There is but one way to reach that corporation and that is through, figuratively speaking, its pocketbook. The sentence of this court, therefore, is that the Amalgamated Clothing-Workers of America, for its contumacious conduct, pay a fine of $1,000 to the State of New Jersey, and process may-issue accordingly.

September 14th, 1933.

ADDENDUM.

Note—An appeal to the court of errors and appeals having been taken by all of the respondents and that appeal having been withdrawn or dismissed by consent of counsel, the-individual respondents, some in person and all by counsel, appeared in open court on February 15th, 1934, and petitioned the court for a reconsideration and vacation or modification of the sentences heretofore imposed. After argument, by Mr. William J. O’Hagan for the individual respondents, Mr. Harry Weltehek, for the respondent The Amalgamated Clothing Workers of America, and Mr. Merritt Lane, for the-prosecution, the court made the following statement:

“In considering the applications for a reconsideration of the sentences imposed upon these respondents at the conclusion of the contempt proceedings, or a vacation of those sentences and the imposition of new or modified sentences, it. should be borne in mind that those sentences were imposed as a punishment for acts committed prior to their imposition, and not for contempt subsequent thereto. The only reasons advanced for the vacation or modification of those sentences are grounded in the alleged exemplary conduct of the respondents pending the appeal. The subsequent conduct of these respondents, in my judgment, is the result of the contempt proceedings. This enforced conduct has not purged them of their contempt, and I believe I have nothing to add to, nor should it be necessary that I add anything to what I said at the time these sentences were imposed. I have thought about this matter very considerably since that time, and I have never been able to bring myself to any conclusion but that if I erred at all in the imposition of the sentences then imposed, it was upon the side of clemency rather than of severity, and there will be no change in the sentences which have already been imposed. You may take an order directing the surrender of these respondents—those of them who are required to surrender to the sheriff, for the serving of the sentences imposed; and with respect to the union respondent, you, Mr. Lane, have not suggested the form of order which you desire, but I suppose it is one of sequestration or something of that kind. What suggestion have you to make as to the form of order which should issue against the Amalgamted ?”

Mr. Lane—I should ask for an order that would provide that if it does not pay, then within a certain limited period of time, a receiver be appointed for all of its rights and credits in this jurisdiction, or sequestered, whichever your honor chooses to call it, and that its subsidiary locals in this jurisdiction be restrained from paying out any moneys of any kind under that description.

Mr. Weltchek—Will your honor fix a reasonable time in which counsel can arrange for the payment of the fine? It won’t be necessary for a receiver to be appointed.

The court—How much time do you want?

Mr. Weltchek—I think five days.

The court—-Then the order will provide that the fine be paid within five days, and if payment be not made within that time, a writ of sequestration may issue.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DANIEL DONOVAN, PLAINTIFF-APPELLEE, v. CITY OF BAYONNE, DEFENDANT-APPELLANT.
    Submitted October term, 1933
    Decided February 20, 1934.
    Before Brogan, Chibs' Justice, and Justices Trenchard and PIeher.
    Por the appellee, Feinberg & Feinberg (John W. Ochford, of counsel).
    Por the appellant, Alfred Brenner.

   Per Curiam.

This is an appeal from a judgment of the Hudson County Court of Common Pleas directed in favor of the plaintiff and against the defendant for the sum of $13,447.63.

The defendant, city of Bayonne, is governed by the provisions of the Walsh act, commonly called “commission form of government.” The complaint charges that the director of parks and public property, being authorized by the governing body to lay out an athletic field in one of the parks of the city, ordered the plaintiff to furnish labor and equipment for doing this work and agreed to a price for the services of steam shovel, trucks and men. The plaintiff further alleges that in pursuance of this agreement he furnished the equipment and the necessary labor and that no part of his bill was paid.

The defendant, answering, says that the amount involved in this undertaking, being in excess of $1,000, was not susceptible of private letting but was one requiring advertising and an award of the contract to the lowest bidder.

The plaintiff started on this work on June 10th, 1931. Later he presented his first bill for labor and the services of his equipment. On July 3d, 1931, the governing body of the city of Bayonne refused to pay this first bill.

Later it appears that the defendant municipality advertised for bids for this work on July 21st, 1931, and that on October 6th, 1931, all the bids received were rejected. The plaintiff' had precise knowledge of all this because he submitted a bid. Notwithstanding that the defendant refused to pay the plaintiff’s first bill and that bids for the very work that he was doing were sought by public advertising and the bids received in response thereto rejected, the plaintiff continued unto the end of the work without receiving any payment.

It appears that the governing body had adopted a resolution in connection with the laying out of this athletic field and had recognized that an emergency existed in the city of Bayonne because of the great amount of unemployment in that city. The idea of the governing body in these circumstances was that the creation of an athletic field should not, as usually happens, be let out as one contract to a bidder who would bring in his own laboring force, but that the people of Bayonne should be hired to perform the labor and placed, for the duration of that work, upon the payroll of the director in charge. This was as far as the resolution on the emergency, existing in the situation, went. It did not purport to let down the bars on expenditures in excess of $1,000, which were necessary for the doing of this work. This would have been contrary to the provisions of the statute (Pamph. L. 1925, ch. 137), and while under certain circumstances the statutory provisions may be suspended by the governing body, that did not happen in this case. In fact, the exact opposite is true since the resolution provided that there would have to be competitive bidding for truck hire, &e., in excess of $1,000.

With these facts and circumstances before it, the court directed a verdict in favor of the plaintiff for the full amount of his claim. In this the court below fell into error. The provisions of the statute, cited above, provide that a municipality “shall not enter into any contract for the doing of any work * * * the hiring of teams or vehicles where the sum to be expended exceeds $1,000 unless after public advertisement the same shall be awarded to the lowest bidder.”

We think that the action of the director of the department of parks and public property, in hiring the plaintiff, was without legal sanction; it was neither authorized nor ratified by the governing body. It was plainly in violation of the statute.

The judgment under review therefore will be reversed, and a venire de novo awarded.


author: Pee Curiam.

text:
    ALFRED J. BOHNY, PLAINTIFF-APPELLEE, v. ASSOCIATED DYEING AND PRINTING CORPORATION AND CHARLES A. ENSSLE, DEFENDANTS-APPELLANTS.
    Submitted October term, 1933
    Decided February 20, 1934.
    Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    Por the appellee, William. V. Rosenkrans (Samuel Baten, of counsel).
    Por the appellants, Emanuel Shaviclc (Paul Riitenberg, of counsel).
   Pee Curiam.

The plaintiff below had a judgment for personal injuries and property damage arising out of a collision between his automobile and the defendant’s auto truck. One party defendant was designated in the process as “Associated Dyeing and Printing Corporation” when, as a matter of fact, it should have been designated as “Associated Dyeing and Printing Company, Incorporated.” The driver of the truck that was involved in the accident was named as the other defendant.

We gather from the record that this mistake in the name of the party defendant was not discovered by anyone before or at the trial and not until after judgment had been awarded the plaintiff. We further gather that it is not disputed that there was a concern known as Associated Dyeing and Printing Corporation which had, prior to the time of the accident, gone into bankruptcy proceedings and had conveyed its assets to the Associated Dyeing and Printing Company, Incorporated, which conveyance also was made before this automobile accident.

This case was tried by the court without a jury and after judgment was entered plaintiff’s counsel, on notice and affidavits, asked to have the judgment amended “by changing the name of the defendant * * * for the reason that the Associated Dyeing and Printing Company, Incorporated, was erroneously named in the summons and complaint and pleadings in the cause as Associated Dyeing and Printing Corporation,” which amendment the court allowed on July 10th, 1933. This action on the part of the trial court is made a ground of appeal, the appellant contending that it was error for the trial court to have granted the order amending this judgment. The appellant urges that the trial court had no authority to make the order at the time it was made, pointing out that the judgment was recovered on May 23d, 1933, and that notice and grounds of appeal were served upon the respondent the following day and filed in the office of the clerk of Passaic county on June 5th, 1933.

From the record before us, we consider that it is undisputed that the truck, which occasioned the injury and damage to the plaintiff, was in fact the property o£ the Associated Dyeing and Printing Company, Incorporated, and, further, that Enssle was its employe. The appellant takes the position, under this point, that the mere filing of the notice of appeal, after judgment in the court below, ousted the trial court of all control over that judgment. It will not be denied that had a motion been made at the trial to correct the stated corporate name of the defendant, before or during the trial, such motion would have been granted as o£ course; nor is it disputed but that the actual defendant was in court, although brought in by an inaccurately stated title; nor is it claimed that its rights in any way suffered by the formal error in stating its name. It is not argued that there is a scintilla of evidence in this appellant’s favor on the merits of the case which was not presented to and received the attention of the court, or that any evidence in its favor existed which was not brought out at the trial. We think the amendment was purely formal and that no substantial right of the appellant was infringed by the order of amendment. Considering the issue very sharply, it seems to us that the action of the court below, in making the amendment, was not harmful to the defendant nor indeed was it error. The amendment was made during the term of the court in which the case was tried. Courts have control over their own judgments. After appeal has been taken, a court may still amend its judgment where the amendment is formal only. 23 Cyc. 862; Fraley v. Feather, 46 N. J. L. 429; 15 R. C. L. 681, § 132; Kindel v. Beck, &c., Lith. Co., 24 L. R. A. 311

Here the appellant indisputably was the successor to the old corporation which had almost the same name before it went into bankruptcy. It was its successor in fact, if not in law. The affidavit on this motion for amendment, submitted by the president of the real corporate defendant, says, “the present company purchased its assets from the receivers of the Associated Dyeing and Printing Corporation.” He likewise admits that James Wiley, the treasurer of this present dyeing and printing company, was likewise the treasurer of the bankrupt company of similar name. The appellant further argues that the effect of the amendment was to add a new cause of action and substitute a new party defendant after the trial. We think this contention is unsound because in this case the real wrongdoer, as it develops, defended the case.

Our conclusion is therefore that there is no substance to this, the appellant’s first point. A trial court may correct a formal error during the term in which the case was tried. This appellate court has power to make the amendment if the trial court had not done so. We think the case of Holt v. United Security Life Insurance and Trust Co., 76 N. J. L. 585; 72 Atl. Rep. 301, in point. There the court said:

“Moreover, the objection, if it were valid, relates to the merest matter of form, not at all affecting the fair trial and determination of the real question in controversy; and therefore if it had been deemed tenable it ought simply to have led to an amendment in the trial court, or, failing that, in this court, under the very liberal policy prescribed by our Practice act respecting amendments. Pamph. L. 1903, p. 572, § 126; American Life Insurance Co. v. Day, 10 Vr. 89, 91; Farrier v. Schroeder, 11 Id. 601; Blackford v. Plainfield Gaslight Co., 14 Id. 438, 442; Ware v. Millville Fire Insurance Co., 16 Id. 177, 179; Finegan v. Moore, 17 Id. 602, 604; Jones v. Cook, 25 Id. 513, 517; Monmouth Park Association v. Warren, 26 Id. 598, 601; Vunk v. Raritan River Railroad Co., 27 Id. 395, 399; Excelsior Electric Co. v. Sweet, 28 Id. 224, 226.”

The appellant urges as the second ground for reversal that the trial court erred in denjdng defendants’ motion to direct a verdict. Let us consider the proofs.

The plaintiff was driving his car northerly on what is called Goffle road which is in the borough of Prospect Park. The defendant’s truck, driven by Charles A. Bnssle, was running on North Sixth street, down grade. These two streets, being used by the respective parties driving motor vehicles, cross each other at right angles. There is a traffic light at this intersection. When the plaintiff entered the intersection, he testified the light facing him was green. This testimony was corroborated. Plaintiff also testified that he looked to the right and left before entering the intersection, saw nothing on either side, and then suddenly this accident occurred, the-defendant’s truck smashing into the plaintiff’s automobile and causing personal injuries to the plaintiff and damage to his car. Under these circumstances, a situation arose which would support an inference that the defendant was negligent and that the plaintiff was free from contributory negligence. In any event it presented a jury question. Podolsky v. Sautter, 102 N. J. L. 598; 103 Atl. Rep. 199; Hammersma v. Smith, 110 N. J. L. 523; 165 Atl. Rep. 555.

The judgment will be affirmed, with costs.


text:
    WALTER HEENAN, PLAINTIFF-APPELLANT, v. HORRE COAL COMPANY, A CORPORATION, DEFENDANT-RESPONDENT.
    Submitted October term, 1933
    Decided February 20, 1934.
    Before Brogan, Chief Justice, and Justices Trenciiard and I Ik her.
    Por the appellant, Bennett A. Robbins (Edward A. Markley, of counsel).
    Por the respondent, Charles F. Howell (Robert H. Brenner, of counsel).
   Per Curiam.

This is an appeal from the judgment of the Hudson County Court of Common Pleas on a verdict directed by the trial judge in favor of the defendant and against the plaintiff. These facts and circumstances appeared. The plaintiff below (appellant here) was unquestionably a trespasser on the property of the defendant coal company and had gone to the coal yard of the defendant to pick up and collect loose coal. He was ordered off the premises by the watchman and proceeded to go, the watchman who ordered him, following. As he left the property the watchman fired a shot from a revolver into the back of the plaintiff.

This suit is brought on the ground, first, that the defendant was answerable for the willful and wanton injury inflicted on the plaintiff by its employe.

The trial court directed a verdict in favor of the defendant upon the theory that the watchman was acting outside the scope of his employment when he shot the plaintiff and that the shooting took place immediately off the premises of the defendant.

Four grounds for reversal are set down by the appellant which resolve themselves into but one point, namely, the court should not have directed a verdict because under the facts in this case a question for the jury was presented. We think that the appellant is right in his contention and that the court fell into reversible error in directing a verdict in favor of the defendant.

The plaintiff himself was the only witness in support of his claim. Mr. Horre, president of the defendant corporation, was the only witness for the defendant. The watchman who did the mischief was not called as a witness although the record shows he was in court at the trial of the case. The plaintiff testified that he knew the watchman. Seader, as having been watchman for a space of three years; that the said watchman had used a gun previously at the coal yard, the plaintiff explicitly saying, “he used to shoot to scare us.” This shooting of the plaintiff took place on December 28th, 1931. Plaintiff, in his direct testimony, further said that this same watchman, on another occasion, just prior to Christmas, had shot at him. The plaintiff also testified that for several years he knew that this watchman use to chase people out of the coal yard.

On the night in question, it appears that the plaintiff was ordered by the watchman to leave the property. He started to obey and was in the act of leaving when he was shot in the back.

Mr. Horre, for the defense, admitted that Seader was employed as a watchman; claimed he was not provided with a revolver; that the watchman had charge over all of the property of the defendant; the watchman took the revolver from a desk in the office; the revolver was the property of the defendant, and Seader apparently used it. Mr. Horre further said that he didn’t know whether the watchman had a revolver or not nor did he know that he ever fired it at anyone and disclaimed giving orders to this watchman to carry or not to carry a revolver or to eject trespassers. In other words, the watchman seems to have been without any specific instructions from anyone as to what he was to do except, as Mr. Horre said, to be watchman.

On motion for a directed verdict, the plaintiff’s story is of course to be taken as true together with all of the legitimate inferences that the testimony will support and applying this rule to the facts in this case we think it was error to direct a verdict. In passing upon motions to direct a verdict the court cannot weigh evidence but must take as true all testimony which supports the view of the party against whom the motions are made. Skiba v. Hmieleski, 106 N. J. L. 597; 150 Atl. Rep. 334; Andre v. Mertens, 88 N. J. L. 626; 98 Atl. Rep. 693; Hammersma v. Smith, 110 N. J. L. 523; 165 Atl. Rep. 555. The plaintiff’s story was that the defendant’s watchman had frequently ejected people from the premises and had shot off his revolver from time to time; further, that he had fired at this plaintiff only a short time before. Unquestionably the conduct was willful, wanton and malicious and the defendant is responsible therefor if such conduct was within the scope of the employment. Under the facts and circumstances of this case we think that issue should have been sent to a jury for determination. Carey v. Hamburg American, &c., 72 N. J. L. 56 (at p. 57); 60 Atl. Rep. 179 ; 1 West Jersey and Seashore Railroad v. Welsh, 62 N. J. L. 655; 42 Atl. Rep. 736.

The judgment of the Hudson County Court of Common Pleas is therefore reversed, and a venire de novo awarded.


author: Ackeeson, S. C. C.

text:
    BERTHA KLORMAN, PLAINTIFF, v. WESTCLIFF COMPANY, INCORPORATED, A CORPORATION OF NEW JERSEY, HENRIETTA SCHNEIDER AND JOHN J. SCHNEIDER, DEFENDANTS.
    Decided February 3, 1934.
    For the plaintiff, George Rothstein.

    For the defendants, Platoff, Saperstein & Platoff.

   Ackeeson, S. C. C.

This action is upon a bond to recover a deficiency resulting from the foreclosure of the accompanying mortgage, and the matter now comes before me upon plaintiff’s motion to strike out the separate answer of the defendant Westcliff Company, Incorporated, and the joint answer of the defendants Henrietta Schneider and John J. Schneider upon the grounds that said answers and the defenses contained therein and the objections in point of law raised thereby are sham or frivolous.

The decision of this motion hinges upon the sufficiency of the first separate defense contained in the answer of the corporate defendant, Westcliff Company, Incorporated, and upon the sufficiency of the first and second separate defenses contained in the joint answer of the defendants Henrietta Schneider and John J. Schneider.

The first defense in the answer of the corporate defendant and the second separate defense in the joint answer of the two individual defendants are identical, and allege that these defendants, who are obligors on the bond in suit, were not joined as parties in the proceedings to foreclose the accompanying mortgage pursuant to the requirements of chapter 231 of the laws of 1932 (Pamph. L. 1932, p. 509), which act became effective June 14th, 1932, and amended sectiob 2 of the so-called “Mortgage act” (Pamph. L. 1880, p. 184, amended by Pamph. L. 1881, p. 184), by inserting therein the following provision:

“That no action shall be instituted against any party answerable on the bond unless such party is joined in the proceedings to foreclose the said mortgage.”

The bond which is here involved was executed by these defendants jointly on January 3d, 1939, prior, it will be noted, to the enactment of the above mentioned amendment, and it is not disputed that the mortgaged lands were conveyed by these defendants to a third party and that the present defendants were not made parties to the foreclosure proceedings. It follows, therefore, that if the above mentioned amendment is operative so far as the bond and mortgage here in question are concerned, these defendants may properly plead as a complete defense to the present action, that they were not made parties to the foreclosure proceedings.

The only reason urged by the present plaintiff against the validity of this defense is that the above mentioned amendment is unconstitutional in so far as bonds and mortgages executed prior to its enactment are concerned, i. e., violative of article 4, section 7, paragraph 3 of the constitution of the State of New Jersey, which prohibits laws impairing the obligation of contracts or depriving a party of any remedy for enforcing a contract which existed when the contract was made.

Turning to the cases relied upon by the plaintiff in support of her contention, we find that in the case of Baldwin v. Flagg, 43 N. J. L. 495, the second section of the “Mortgage act” (Pamph. L. 1881, p. 184), was construed, and the court said that the act was violative of the aforesaid provisions of the constitution so far as prior bonds and mortgages were concerned, for the reasons that the act not only postponed the obligee’s remedy on his bond until the foreclosure proceedings were terminated, but also impaired the value of the mortgage security by subjecting the purchaser’s title to conditions of redemption after sale which must diminish the vendible value of the mortgaged premises.

In the case of Morris v. Carter, 46 N. J. L. 260, the court merely held that the limitation in the second section of said act, that suits on bonds should be commenced within six months from the date of the sale of the mortgaged premises, is so connected with the other parts of the act (already declared unconstitutional in the case of Baldwin v. Flagg, supra), as to be inseparable, and, therefore, unconstitutional as to antecedent obligations. It is to be particularly noted that the court did not hold that such a limitation of time in which to bring an action on the bond, if not connected with the other parts of the act already declared unconstitutional so far as previously existing obligations are concerned, would have been in itself unconstitutional. It is doubtful if the court would have so found in view of the cases of Barnaby v. Bradley, 60 N. J. L. 158; 37 Atl. Rep. 764; Warshung v. Hunt, 47 N. J. L. 256; affirmed, 48 Id. 613; 9 Atl. Rep. 199, which held in effect that the legislature may pass statutes of limitation which shall apply to existing contracts, if a reasonable- time within which to bring suit is allowed.

Nor is the recent case of Vanderbilt v. Brunton Piano Co. et al., 111 N. J. L. 596; 169 Atl. Rep. 177, at all in point. There the court was called upon to pass upon the constitutionality of chapter 82 (Pamph. L. 1933), which permits the setting up in a suit on a bond the fair market value of the mortgaged premises, in reduction of a deficiency on the mortgage debt fixed by a foreclosure sale under chapter 157, Pamph. L. 1880, as amended by Pamph. L. 1881, ch. 147. In holding this legislation unconstitutional, so far as previously executed bonds and mortgages are concerned, the court said:

“It is apparent that when an obligee on a bond has, as an incident to his contract, the right to recover a liquidated sum, first by receiving the proceeds from the sale of the pledged property and supplementary by a personal action, and a statute is thereafter passed, the direct effect of which is to provide an opportunity to the debtor for reducing the sum recoverable, his contract is impaired.”

In all three of the above cited cases the legislation referred to, impaired the obligation of contracts or deprived a party of a remedy which had previously existed, and did not involve merely a matter of procedure. The court in the case of Baldwin v. Flagg, supra, laid down the following test by which the constitutionality of such legislation may be gauged:

“It is perfectly clear that any law which enlarges, abridges, or in any manner changes the intention of the parties, resulting from the stipulations in the contract, necessarily impairs it, and the manner or degree in which this change is effected can in no respect influence the conclusion. Any deviation from its terms, by postponing or accelerating the period of performance which it prescribes, imposing conditions not expressed in the contract, or dispensing with the performance of those which are part of the contract, however, minute or apparently immaterial in their effect upon it, impairs its obligation.”

Where, however, the legislation affects merely the procedure to be followed to secure a remedy under an existing right, it does not run counter to the above mentioned constitutional prohibition, and this is emphasized in the case of Pennsylvania Company for Insurance, &c., v. Marcus, 89 N. J. L. 633; 99 Atl. Rep. 405. This case arose after the passage of the 1907 supplement (Pamph. L. 1907, p. 563) to the “Mortgage act” of 1880-1881, which supplement provides for the filing of a written notice before the commencement of a deficiency action on a bond. The case involved a bond executed prior to the adoption of the 1907 supplement. A notice was filed by the plaintiff but it did not comply with the act of 1907. In that case, as here, the plaintiff relied upon the decision in Baldwin v. Flagg, supra, in support of its contention that the statute of 1907 was unconstitutional in so far as it required the filing of such a notice in the case of a bond which had been executed prior to the passage of the legislation. The court stated that the purpose of the 1907 act “is manifestly to give notice to parties interested of the intention to enter a judgment, or of the bringing of an action, which if prosecuted to judgment, would open the foreclosure sale of which the purchaser at the foreclosure sale or the obligor, if the judgment was entered by confession, would have no other notice.” After discussing the case of Baldwin v. Flagg, supra, the court distinguished the effect of the 1881 act and the 1907 act upon prior bonds, in the following language:

“Thus it appears that the act of 1881 is not one of procedure but one that related to the obligee’s remedy. Before that act he was not bound to first foreclose his mortgage, and the legislation necessarily postponed the date when it could be enforced according to its terms. No such condition is created by the act of 1907.

% }¡{ íjí % H* % #

“We are of opinion that the required notice is a matter of procedure, imposing no new burdens or restrictions which materially impair the value and benefit of the bond, for it does not modify the nature or extent of the remedy any more than would a statute requiring suit to be commenced by serving a complaint containing a copy of the bond, instead of by summons without such a copy, or the filing of a Us pendens before commencing an action.

“The right to enter a judgment is not taken away or postponed, and the due day of the bond is not extended nor the value of any security given by the contract affected, as was the situation in Baldwin v. Flagg. The obligee has all the remedies he was entitled to when the bond was executed, and there is no new limitation or curtailment of his remedy; all the act of 1907 does is to introduce a new method of procedure requiring the filing of what is said in Neu v. Rogge, 88 N. J. L. 335, to be a Us pendens. Legislation which merely requires the filing of a preliminary notice of this character in a remedial proceeding for the enforcement of a contract existing when the statute was passed, does not impose a burden or restriction impairing the value or benefit of such a contract.”

The purpose of the 1932 amendment which we are considering, is very similar to the purpose behind the 1907 act. The new act was passed for the purpose of giving obligors and those who have assumed payment of a mortgage debt, notice of a pending foreclosure. As Vice-Chancellor Backes so aptly states in Vanderbilt v. S. W. Holding Co., 112 N. J. Eq. 584; 165 Atl. Rep. 634:

“He” (obligor) “is made a party defendant because of the mandate of the 1932 act (Pamph. L., p. 509), to sound the tocsin that he may be held liable on his bond in a suit at law if deficiency ensues.”

See, also, Usbee Building, &c., v. Ocean Pier Realty Corp., 112 N. J. Eq. 580; 165 Atl. Rep. 580, where the court in referring to mortgagors and obligors who had parted with their title said, “they are proper parties for discovery, but not for relief. They are also proper parties under the statute as noticoes. Pamph. L. 1932, p. 509.”

So it will be seen that the purpose of the 1932 act is to give the obligor notice that the mortgage which accompanies the bond is being foreclosed in order that he may have an opportunity to minimize the amount of any future deficiency by protecting his interest in the property and bidding at the foreclosure sale.

The reasoning of the court in Pennsylvania Company for Insurance, &c., v. Marcus, supra, recently approved in the case of South Broad Building and Loan Association v. Brunetto, 112 N. J. L. 79; 169 Atl. Rep. 870, respecting the constitutionality of the 1907 act, is equally applicable to the 1932 statute. Plaintiff has not been deprived of any remedy for enforcing her bond which existed when the contract was made. The statute does not impair the obligation of her contract and it merely relates to a method of procedure. Measured by the test laid down in Baldwin v. Flagg, supra, the 1932 act is not unconstitutional with respect to the bond in question and the criticised pleadings, cannot, therefore, be stricken.

The objections in lieu of a motion to strike contained in both answers are framed under the 1932 act and must, therefore, stand or fall upon the constitutionality of that act with respect to the bond in question and cannot, therefore, be stricken out for the reasons hereinbefore given.

Turning now to the first separate defense set up in the joint answer of the defendants Henrietta Schneider and John J. Schneider we find that it raises the defense of usury. This seems to have been sufficiently pleaded in conformity with the requirements of Grand Inv. Co. v. Gross, 9 N. J. Mis. R. 981; 156 Atl. Rep. 280, and Kase v. Bennett, 54 N. J, Eq. 97, and, as defendants’ affidavits seem to verify the facts as pleaded, the defense cannot be considered sham.

Plaintiff, however, alleges that the defense is frivolous and argues that the individual defendants were merely sureties for the Westcliff Company, Incorporated, the corporate defendant, and as the corporation cannot plead usury by reason of Pamph. L. 1930, p. 459 (4 Comp. Stat., p. 5706), these defendants as sureties cannot do so under the authority of Freese, v. Brownell, 35 N. J. L. 285; Commercial Funding Corp. v. Melroy Construction Co., 106 N. J. Eq. 11; 149 Atl. Rep. 586. The first difficulty which confronts this theory is that the complaint does not allege that the Schneiders were sureties on the bond in question, but on the contrary the allegation is that they and the corporate defendant “executed their bond on that date” to plaintiff’s assignors. And, of course, the plaintiff cannot insist upon a different state of facts than set forth in her complaint. Smith v. Hopping, 88 N. J. L. 195; 95 Atl. Rep. 993.

Prior to the notice of motion herein, defendants craved oyer of the bond in question, and the copy which was furnished by the attorneys of the plaintiff in response thereto has been submitted to the court upon this motion, and, as it becomes a part of the record, it ínajr be considered a part of the complaint for the purpose of this motion. The Ordinary v. Executors of Smith, 14 N. J. L. 479; Earle v. Fidelity and Deposit Co. et al., 68 Atl. Rep. (N. J.) 1078. Inspection shows that the bond is executed by the corporation and the two individuals as the principal obligors, and nowhere does it appear that the relation of principal and surety existed as between the corporation and the individuals. Under such circumstances it would seem that the rule pronounced by the foregoing statute and cases should not be applied to these individual defendants, at least on a motion such as this. Furthermore, it is settled in this state that one who has contracted as a principal, but who is in fact or later becomes a suretjq cannot in a court of law claim any of the privileges belonging to the later character. Palmer v. White, 65 N. J. L. 69; 46 Atl. Rep. 706; Pintard v. Davis, 21 N. J. L. 632; Anthony v. Fritts, 45 Id. 1; Shute v. Taylor (Court of Errors and Appeals), 61 Id. 256; 39 Atl. Rep. 663; Hunt v. Gorenberg, 9 N. J. Mis. R. 463, 467; 155 Atl. Rep. 881. Per contra it would seem that the holder of a bond cannot assert that the relation of principal and surety exists as between co-obligors who signed as principals.

It is apparent from what has already been said that the answers in question cannot be stricken as either sham or frivolous and an order may be presented in accordance with the conclusions thus reached.


author: Bnowx, S. C. 0.

text:
    ISAAC ABRAMSON, PLAINTIFF, v. BELLA HEYMAN ET AL., DEFENDANTS.
    Decided February 23, 1934.
    For the plaintiff, Insley, Vreeland & Decker.

    For the defendants, Abner W. Weinberg.

   Bnowx, S. C. 0.

The defendants move to strike out the1 complaint filed in the above entitled cause on the grounds that it does not set forth a cause of action and that the action was instituted prematurely. The complaint charges that one Max and his wife being indebted to the Hew Jersey Title Guarantee and Trust Company in the sum of $10,000 executed to that company a bond conditioned for the payment of the indebtedness. To secure the payment of the bond Max and his wife executed to the title company a mortgage bearing even date with the bond. The title company assigned the bond and mortgage to the plaintiff. On September 9th, 1927, it is alleged that ÍTathan Feinberg and Jacob Heyman, who were at that time owners of the mortgaged premises, entered into a written stipulation for the extension of time within which to pay the indebtedness of $10,000 and in that agreement of extension the defendants Feinberg and Heyman agreed to pay the indebtedness according to “the other covenants and conditions of the mortgage and bond secrned thereby to remain in force, which the said owners hereby on their own behalf and that of their heirs and legal representatives assume and agree to abide by and perform.”

Jacob Heyman died testate and appointed in his last will and testament as executors the defendants Bella Heyman, Samuel Heyman, Isaac Heyman and Hathan Feinberg. Plaintiff claims the sum of $9,000 together with interest as due and owing on the bond and mortgage. The plaintiff presented to the executors a verified claim for the amount claimed to be due and the defendants disputed the claim and refused to pay. The defendants contend in their motion to strike that the plaintiff had no cause of action for the indebtedness except as might arise upon a deficiency after a foreclosure sale of the mortgaged premises as required by section 48 of the Mortgage act (3 Comp. Stat. 1910, p. 3421), and that the complaint in this cause does not disclose that the mortgage was first foreclosed and a sale of the mortgaged premises effected. The plaintiff contends that the motion should fail first because the motion is in the nature of a general demurrer and questions presented must be determined from matters disclosed in the complaint. It is also contended by the plaintiff that a suit upon a bond will lie against an estate without a previous foreclosure of the mortgage and that the present action is not a suit on a bond but is a suit on a collateral agreement.

The statutory defense that is attempted to be asserted on the motion to strike is properly a matter of defense and should be made the subject-matter of a plea. Callan v. Bodine, 81 N. J. L. 240; 79 Atl. Rep. 1057; Knabe v. Hudson Bus Transportation Co., 111 N. J. L. 333; 168 Atl. Rep. 418. Under the authority of Weatherby v. Weatherby’s Ex’rs, 63 N. J. L. 445; 43 Atl. Rep. 683, it was decided that if, under order to limit creditors, a verified claim on the bond of a deceased obligor is presented to his legal representatives and they serve notice disputing the same, a suit may be brought on the bond, without first foreclosing an accompanying mortgage, notwithstanding the statutory requirement that in all cases where a bond and mortgage shall be given for the same debt, all proceedings to collect said debt shall be first to foreclose the mortgage, and after sale, then to proceed on the bond for deficiency, ft appears by the complaint that the plaintiff has presented his verified claim to the executors of the obligor and that they have disputed the claim and refused to pay. In the Weatherby ease the motion to strike out was denied and that will be the order in the case sub judice.


author: Pee Cueiam.

text:
    LIDA TULLY AND EDWARD J. TULLY, PETITIONERS-DEFENDANTS, v. GIBBS & HILL, INCORPORATED, RESPONDENT-PROSECUTOR.
    Argued October 4, 1933
    Decided March 1, 1934.
    Before Brogan, Chief Justice, and Justices Trenchard .and Heher.
    For the prosecutor, Cohen <& Klein (Philip Klein, of counsel).
    For the defendants, Harry Unger.

   Pee Cueiam.

This writ of certiorari brings up for review a judgment of the Hudson County Court of Common Pleas affirming the finding and determination of the workmen’s compensation bureau in a workmen’s compensation case. The following are the facts:

Thomas P. Tully was employed by the prosecutor, Gibbs & Hill, Incorporated (contractors at this time and place for the Pennsylvania Railroad Company), as a watchman and on the morning of June 22d, 1932, was found dead at or near the place of his employment on tracks of the Pennsylvania Railroad Company, at a point known as Journal Square, Jersey City. His death resulted from electrification, brought about by contact with a “third rail.” His body was discovered at about six o’clock in the morning of the day in question. Ho eye witness of the occurrence was produced at the hearing.

The prosecutor of the writ has set down sixteen reasons for reversal. However, the case is argued under three headings. First, that the accident did not arise out of the employment; second, that the trial court erroneously permitted a witness, Clark, to answer a question on his direct examination as to what the duties of the deceased were and, third, that the amount allowed in compensation is erroneous.

It is not disputed but that the deceased died of an accident. The prosecutor contends that the accident did not arise out of the employment. It is necessary to briefly discuss the facts and circumstances surrounding the occurrence. The property of the employer, which it was the decedent’s duty to guard, was placed on the northerly side of what may be called the Pennsylvania railroad “cut” in the vicinity of Journal Square. It consisted of cables, a hoist and a pump. The first three sets of rails on the northerly side of this railroad right of way are not electrified but are used for steam trains; the next seven sets of rails are used by Hudson and Manhattan railroad trains, and all are equipped with a “third rail” with the exception of one set of rails furthest south.

The decedent was found with his left shoulder in contact with a “third rail,” his right shoulder being caught under the guard of the same rail. The medical testimony establisted that his death was due to shock. During the night, according to the evidence, there was a heavy downpour of rain.

On this first point, much testimony has found its way into the record as to what the decedent was doing immediately prior to or at the time he met the accident which caused his death. It is suggested that he may have gone to the car seeking shelter from the heavy rainstorm; or that the decedent may have considered the Hudson and Manhattan railroad ear, which apparently was lying there for the night, an advantageous spot from which to keep watch over the equipment that he was engaged to watch and which was located at three different points on the north side of the railroad “cut;” or it was further suggested, that the deceased may have been going to or returning from a toilet on the southerly side of the right of way at the time that he met his death.

Prom the facts and circumstances in this case, we think that the deputy commissioner was justified in drawing the inference that the accident to the decedent arose out of the decedent’s employment. Muzik v. Erie Railroad, 85 N. J. L. 129; 89 Atl. Rep. 248; De Fazio’s Estate v. Goldschmidt Detinning Co., 87 N. J. L. 317; 88 Atl. Rep. 705.

When an employe, as here, is found dead from accident and there is no evidence offered as to just how the death occurred, the court will presume that the accident causing the death was one that arose out of and in the course of the employment. Here it was perfectly consistent with the performance of his duty, under the circumstances that prevailed, that the deceased should be where he was at the time of the occurrence which resulted in his death. Zabriskie v. Erie Railroad, 85 N. J. L. 157; De Fazio’s Estate v. Goldschmidt Detinning Co., supra.

The second ground for reversal is that the court permitted the witness, Clark, to answer a question concerning the duties of the deceased. This ground for reversal has no merit for two reasons, the first being that this error, if indeed it was error, was harmless for the reason that the testimony which the prosecutor here complains of was put into the record later by counsel for the prosecutor in the examination of one of his own witnesses, and, secondly, the record before us does not disclose any proper ground for appeal. At the trial, counsel stated that he objected to the question. This without more-does not make for a proper ground of appeal. The court is entitled to be informed of the reason for the objection to a question or an answer and if the reason for the objection is-not stated there is of course nothing for the appellate tribunal to review. Schreiner v. New York and New Jersey Tel. Co., 82 N. J. L. 743; 82 Atl. Rep. 887; Booth v. Keegan, 108 N. J. L. 538; 159 Atl. Rep. 402; Belperche v. Erie Railroad, 111 N. J. L. 81; 166 Atl. Rep. 463; State v. Donnelly, 26 N. J. L. 465 (at pp. 511, 512).

As to the third point, it is sufficient to say that we find no-error in the computation of the compensation as allowed by the deputy commissioner, which was affirmed by the Common Pleas Court.

The writ will therefore be dismissed, and the judgment below affirmed, with costs.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. THOMAS SCOTT, PLAINTIFF IN ERROR.
    Submitted October term, 1933
    Decided March 1, 1934.
    Before Beogan, Chief Justice, and Justices Teenchaeb and Heheb.

      For the plaintiff in error, Abraham J. Isserman (Sol D. Kapelsohn, of counsel).
    For the defendant in error, Douglas M. Hicks and J oseph II. Edgar.

   Pee Cueiam.

The plaintiff in error, Thomas Scott, was convicted in the Middlesex Quarter Sessions Court of the crime of subornation of perjury, the indictment containing two counts. The first count charged that the defendant, Scott, did suborn one Edward Cichorek to commit perjury at the trial of several persons for the crime of riot. The said Cichorek appeared as a witness for the state. He himself was under indictment for rioting but was not being tried at this time since he had obtained a severance.

The second count charged Scott with inducing one Stephen Odor to commit perjury at the trial of an indictment at which Odor, like Cichorek, appeared as a witness for the state. The indictment recited that Odor was also under indictment for rioting but had secured a severance. This recital is of some importance as will presently appear.

Three points are urged for reversal under the assignments of error. The first is that the court erred in refusing to direct a verdict of acquittal in the case of the plaintiff in error in that neither count in the indictment charged a crime because in neither count is it alleged that the perjured testimony was material to the issue nor, as it is argued, does the materiality of the testimony appear by necessary implication. The indictment is further attacked as vague and uncertain.

We see no merit to this first point.

The case comes up on a strict bill of exceptions. As to the merit of the argument, it is elementary that false swearing, in order to constitute perjury, must be to a fact material to the issue. This being true it follows that to constitute the crime of subornation of perjury the suborner must have induced false swearing to facts that were themselves material to the issue.

Now it is set forth in the indictment that Cichorek, in the evidence which he gave as a state’s witness, willfully, corruptly and falsely swore, “I saw a bunch of fellows throw bricks but I don’t know who they are,” the charge being that this testimony was false and that the defendant below, Scott, procured, suborned and persuaded Cichorek to give this false testimony. Now while the indictment does not state that this testimony was material to the issue, yet on the trial of an indictment for the crime of riot the materiality of the testimony quoted above, which was set forth in the indictment, is obvious.

The same attack is made on the second count of the indictment that it, too, did not allege the materiality of the testimony charged in the indictment to be perjured and induced by the plaintiff in error. Necessarily we are of the same mind with regard to the challenge to this second count since it is identical Avith the attack against the first count. In neither attack do we find any merit.

The second point made by the plaintiff in error is that the indictment was fatally defective; that it didn’t charge a crime and therefore should have been quashed. This, we find to be without substance because of the provisions of section 44 of the Criminal Procedure act (2 Comp. Stat., p. 1834), which reads as follows:

“Every objection to any indictment, for any defect of form or substance apparent on the face thereof, shall be taken, by demurrer or motion to quash such indictment, before the jury shall be sworn, and not afterwards; and every court before which any such objection shall be taken for any such defect, or before whom any person may be tried, may, if it be thought necessary, cause the indictment to be forthwith amended in any particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared, or be postponed at the discretion of such court as hereinbefore provided in case of amendment for variance. Pamph. L. 1898, p. 881.”

It is of course true that section 44, supra, does not prevent an attack on an indictment, after the jury has been sworn, where the indictment, does not charge a crime (State v. Cal lary, 108 N. J. L. 463; 159 Atl. Rep. 161; State v. Flynn, 76 N. J. L. 474; 72 Atl. Rep. 296; State v. Boyd, 87 N. J. L. 560; 94 Atl. Rep. 807; State v. Quinn, 108 N. J. L. 467; 158 Atl. Rep. 834), and that an indictment may not be then amended to charge a crime where none was charged in the indictment as it stood, but that is not the situation here since we are of the opinion that the indictment under attack did charge a crime, namely, subornation of perjury and that the challenge to its sufficiency fails because, as we have said, the materiality of the perjured testimony is apparent on the face of the indictment.

The second count charges that the defendant, Scott, did corruptly suborn * * * Stephen Odor to willfully commit perjury in that; the said Stephen Odor and others having been indicted on October 7th, for the crime of riot * * * and that the said Stephen Odor having been granted a severance appeared as a state’s witness and testified falsely, &c.

The point upon which this assignment of error is based is that the recital in the indictment that Stephen Odor had been indicted for riot was not true and, from the record before us, it seems that as a matter of fact no indictment had been returned against the said Odor. Hone the less, that misstatement in the indictment is beside the question. The gravamen of this indictment is that Scott suborned Odor to commit perjury on the trial of an indictment where several persons were on trial for riot. Whether or not Odor was under indictment himself and secured a severance, makes no difference. The delect is formal, not material. It does not go to the merits of the charge against Scott, the plaintiff in error. The issue is—did Odor commit perjury and was Scott the suborner of that perjury? The misstatement in the indictment was apparent on its face. Objection should have been made before the jury was sworn and if made the defect could have been remedied, without harm to the defendant below. At all events, such formal defect, as we view it, cannot be invoked as a ground for reversal.

The judgment of conviction is therefore affirmed.


author: Beown, C. C. J.

text:
    Hudson County Circuit Court.
    PETER MAKOHON AND MICHAEL SIMBALA, PLAINTIFFS, v. MILLERS NATIONAL INSURANCE COMPANY, A CORPORATION, DEFENDANT.
    Decided March 3, 1934.
    For the plaintiffs, Turteltaub & Turteltaub.

    For the defendant, Lionel P. Kristeller.

   Beown, C. C. J.

The defendant moves to set aside the service of a summons and complaint in the above entitled cause on the ground that the service was improperly made. In the complaint venue is laid in the Hudson County Circuit Court and it is alleged that the defendant company issued a policy of insurance in June, 1933, to the plaintiffs insuring them against loss by fire to personal property; that the property was destroyed by fire and under the terms of the policy the defendant is liable for the loss which it refuses to pay. The service endorsed on the summons discloses that the sheriff of the county of Mercer on the 28th day of December, 1933, effected service by leaving a copy of the summons and complaint with the commissioner of banking and insurance of the State of New Jersey, at Trenton, New Jersey, with the service fee of $2. The Corporation act (2 Comp. Stat. 1910, p. 1626, § 43a), provides in part that:

“* * * in case the agent of any such corporation designated by any such corporation as the agent upon whom process against the corporation may be served shall die, or shall resign, or shall remove from the state, or such agent cannot with due diligence be found, it shall be lawful, while such default continues, to serve process against any such corporation upon the secretary of state, and such service shall be as effective to all intents and purposes as if made upon the president or head officer of such corporation * * *.”

Under an act entitled “An act to provide for the regulation and incorporation of insurance companies and to regulate the transaction of insurance business in this state” (2 Comp. Stat. 1910, p. 2855, § 59), it is required that a foreign insurance company shall file its certificate of organization with the department of banking and insurance and by filing such certificate the company shall thereby:

“* * * constitute the commissioner of banking and insurance and his successor in office its true and lawful attorney, upon whom all original process in any action or legal proceeding against it may be served and, therein shall agree that any original process against it which may be served upon said commissioner shall be of the same force and validity as if served on the company, and that the authority thereof shall continue in force irrevocable so long as any liability of the company remains outstanding in this state; the service of such process shall be made by leaving a copy of the same in the office of the commissioner of banking and insurance with a service fee of $2 * *

In the case sub judice the commissioner of banking and insurance was appointed the statutory agent of the defendant upon whom process may be served as required by statute. In the case of Valentine v. Franklin Surety Co., Inc., 11 N. J. Mis. R. 822; 168 Atl. Rep. 35, a writ of certiorari was presented to the Supreme Court to review the question of the refusal of the District Court of the city of Orange to set aside the service of a summons upon the commissioner of banking and insurance as attorney for two foreign corporations doing business in this state. In that case it was stated that:

“The record does not disclose that process was served as required by the statute. 2 Comp. Stat., p. 2855, § 70 (3) and p. 2857, § 64.”

It was also held that the process which the commissioner, as attorney may accept, is the process which “may be served” and “is served” and that the jurisdiction of the District Court of Orange was co-extensive with the confines of the county of Essex and that process of that court did not run into the county of Mercer. Evidently what was intended in the Valentine case where reference is made to section 70 of the Insurance act, was to refer to section 59 of that act as section 70 of the Insurance act provides for the filing of annual statements and does not relate to service of process. The constitution of the State of New Jersey, section 5, article 6 (1 Comp. Stat., p. 1106), provides in part as follows:

“The Circuits shall be held in each county of this state, by one or more of the justices of the Supreme Court, or a judge appointed for that purpose; and shall in all cases within the county, except in those of a criminal nature, have common law jurisdiction concurrent with the Supreme Court; * * *.”

The question of jurisdiction of county courts was clearly discussed by Chief Justice Beasley in the case of Dufford v. Decue, 31 N. J. L. 302. In referring to the constitutional provision concerning the jurisdiction of county courts he said:

“And yet, by the force of this rather indefinite language, it was never supposed that either the Common Pleas or the county Circuits were possessed of any more than a concurrent, common law jurisdiction with the Supreme Court, within the limits of their respective counties in the ordinary line of actions, inter partes. It is certain that no greater power than this was ever claimed for them. In a defined measure they each shared, practically, with the Supreme Court, a portion of its ordinary jurisdiction and this was all, for, so far as is known, no attempt was ever made to bring before either of these tribunals any matter which was not embraced within the limit of this power. * * * I think, therefore, that it is. clear that at the time the new constitution was framed, these general terms, so often used in conferring on the local courts a partial jurisdiction co-extensive with that of the Supremo Court, had acquired a definite and settled meaning, and that such meaning was, that the inferior courts shall have a concurrent cognizance over actions arising within the county, in the usual course of law between the parties.”

The service of process in the case sub judice is comparable to the service effected in the Valentine case, supra, and will be set aside for the reasons stated in that case. In arriving at this decision the court is mindful of the decision of the Hew Jersey Supreme Court in the case of Gabriel v. Mason Art, Inc., 2 N. J. Mis. R. 50; 125 Atl. Rep. 125. The appellant company in that case was a domestic corporation and it was practically conceded at the time of the service of the summons on the secretary of state that the company’s office was in the city of Hew York and that it had no designated agent in this state upon whom summons could be served. Suit in that case was brought in the District Court for the First Judicial District of the county of Hudson. The contention was made that notwithstanding service of process upon the .secretary of state it was made without lawful authority because such service could only be properly made at Trenton in the county of Mercer as the District Court’s territorial jurisdiction was limited to the confines of Hudson county. The court held that the statute (2 Comp. Stat. (1910), p. 2855, § 43a) was general in its terms and refers to service of process against corporations in the condition described by the statute and that it made no difference what the territorial limits of the jurisdiction of the court may be, so long as the trial court has jurisdiction over the subject-matter in controversy and to construe the statute as limiting the service of the territorial jurisdiction would defeat the plain legislative intent. It further appeared in that case that the question of jurisdiction was waived by the appearance of the parties and the trial of the ease on its merits. The Gabriel case can be distinguished in some particulars from the case sub judice. In the latter ease there was no trial on the merits and there was no general appearance that would amount to a waiver of any jurisdictional defect in the service of process. Section 43a of the Corporation act (2 Comp. Stat., p. 1626) refers to a situation that is different from that expressed in section 59 of the Insurance act. 2 Comp. Stat., p. 2855. Section 43a of the Corporation act provides for service being effected where the agent upon whom process may be served shall die, or shall resign or shall remove from the state or such agent cannot with diligence he found. The effect of section 43a of the Corporation act is that where there is no agent in the state representing the corporation process may be served upon the secretary of state. Under section 59 of the Insurance act, a different situation is presented. There the commissioner of banking and insurance is designated as the agent upon whom process may le served at the very time of the company being authorized to do business in this state. Section 43a of the Corporation act is remedial in its nature and general in its terms while section 59 of the Insurance act refers particularly to the appointment of a statutory agent or “lawful attorney” designated to represent the insurance company. Eegardless of any opinion this court might have concerning the distinguishable points in the cases to which reference has been made it is the duty of this court to avoid an application of a principle of law that will tend toward uncertainty and confusion and to be guided and controlled by the latest decision of the upper court. 15 C. J. 956. This is particularly true where the latest decision deals with precisely the same statutory subject-matter as involved in the question presented for determination.

The motion to set aside the service of the summons will be granted.


author: Holland, J.

text:
    Morris County Common Pleas Court.
    BLANCHE BARKMAN, PETITIONER-APPELLANT, v. ABE MEYER, RESPONDENT-APPELLEE.
    Decided February 23, 1934.
    For" the petitioner-appellee, King & Vogt (Elmer King)..

    For the respondent-appellant, Reginald V. Spell.

   Holland, J.

John Barkman had been employed for five years or more as a dairyman on the appellant’s farm in Chester; he worked from half past four in the morning to five- or six o’clock in the afternoon. Each morning at seven o’clock, after milking cows and doing farm work, he went for breakfast to his home about half a mile beyond the appellant’s-property; sometimes he rode home on the truck of his employer, and sometimes he walked home along the public road. Each morning he took home with him as part of his employment, two or three regular dairy pails to be washed and cleaned at his home, which pails were to be returned to the-farm later in the day for further milking use, and also took with him five quarts of milk as a part of his compensation;, each morning after breakfast he walked back to the farm along the public road. On the morning in question he followed the usual work and breakfast routine, and while walking on the public highway back to the farm after breakfast, was accidently struck by an automobile owned and operated by a third person, and soon thereafter died.

In the hearing had before the workmen’s compensation bureau, compensation was awarded to the widow and children.. An appeal is taken from this award, and the appellant contends that the accident did not arise out of and in the course of deceased’s employment, arguing first, that the deceased was not on his employer’s premises; second, that he was killed by an independent agency on the public highway, and third, that he was engaged in no work for his employer.

The first and second points are disposed of by the decision in the case of Zabriskie v. Erie Railroad Co., 86 N. J. L. 266; 92 Atl. Rep. 385. The decedent in that case was str-uck by an automobile on a public street and thrown or carried over on a railroad track where he was again struck by a north-bound train, and the court held:

“The difficulty in the case arises from the fact that the place where the deceased was struck was a public street, and that he was struck by an independent agency, to wit, an automobile driven by a stranger and lawfully in said street. Hence it is argued the deceased was not and could not have been injured by any cause for which the master was responsible, or to which he was subjected by the conditions of his employment. But we consider this argument also to be without support. It is not only conceivable, but it is a matter of daily occurrence that employes are required to do their work under conditions which render them liable to injury by outside agencies.”

Similar rulings have been adopted in many other cases. Newark Paving Co. v. Klotz, 85 N. J. L. 432; 91 Atl. Rep. 91; Bolos v. Trenton Fire Clay and Porcelain Co., 102 N. J. L. 479; Ramsey v. Leahey, Ibid. 513; 134 Atl. Rep. 919.

The contention made in the third point, that the decedent was engaged in no work for his employer, cannot be sustained. It was undisputed that one of the obligations of the deceased’s employment was to take home with him after each morning’s milking two or three regular dairy pails to be washed and cleaned at his home; on the fatal morning he carried home with him besides his five quarts of milk two regualr dairy pails to be so washed and cleaned. This service to the master had nothing to do with, and is not to be confused with, the carrying home of the five quarts of milk allowed the deceased as a part of his compensation. The washing and cleaning of the milk pails at home, whether done by the deceased or his wife, was a necessary and essential duty to be performed as a part of the contract of employment; and since he was thus obliged to carry these pails to his home, the deceased was necessarily engaged in the service of his employer in both going home and coming back, whether riding or walking, whether he carried his milk (or money) compensation with him or not.

The case at bar is distinguished from the ease of Palacomo v. Garfield, 8 N. J. Mis. R. 757, which is urged by the appellant in support of his third contention. In that case, during the lunch and recreation hour which was allowed by the rules of the employer, the workingman was entirely free, was permitted to go wherever he wanted to and had no obligation, duty or service of any kind to be performed so far as his employment was concerned; and the deputy commissioner held that the contract of employment was temporarily suspended. In the instant case, while the physical labor of milking cows and doing farm work temporarily abated, the decedent was, nevertheless, under the duty to render another service to his master in connection with the washing of the dairy pails, and the contract of employment thereby continued on in full force.

In Rachels v. Pepoon, 5 N. J. Mis. R. 122; 135 Atl. Rep. 684; affirmed by the Court of Errors and Appeals, 104 N. J. L. 183; 139 Atl. Rep. 923, the court held in a ease where the working man was injured while en route from Passaic to Hoboken, where the work was actually located, that the accident causing the injuries arose out of and in the course of his employment, and said:

“Under the facts in this case, we think his service began when he left Passaic and proceeded toward Hoboken. While his actual work began in the latter place, yet to reach there was an act within and necessary in his service toward his employer.”

In O’Mara v. Kirch, 106 N. J. L. 151; 147 Atl. Rep. 511, it was held that the death of the decedent, who was employed as a groom and caretaker with an agreement to be transported to and from church on Sundays as a part of his compensation, and who on a Sunday was killed in an automobile collision, was caused by an accident which arose out of, as well as in the course of the employment, and the court cited with approval the English case of Richards v. Morris, L. R. (1915) 1 K. B. 221, in which a similar rule was adopted.

Under the Workmen’s Compensation act a working man is not required to be physically engaged in actual labor for his employer in order to come within the provisions of the act, as contended in the third point; the courts have held it to be sufficient, if, as in this case, he was in the service of his employer; if, as here, the accident arose out of and in the course of the employment. Byrant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458.

The judgment below is affirmed, with costs.


author: La Corte, J.

text:
    First Judicial District Court of Union County.
    K. G. O. CONSTRUCTION COMPANY, A CORPORATION OF NEW JERSEY, PLAINTIFF, v. GEORGE W. KING, Jr., DEFENDANT.
    Decided February 23, 1934.
    For the plaintiff, John J. Stamler.

    For the defendant, G. Addison Swift.

   La Corte, J.

This is an action by the plaintiff (landlord) against the defendant (tenant) for non-payment of rent alleged to be due it for an apartment rented to the defendant by the plaintiff under a lease. The defendant claims he owes nothing because he was forced to vacate his apartment before the lease expired on account of the schreechiness and the annoying loquacity of a parrot owned and kept by another tenant adjoining his apartment which disturbed the peace and quiet of his home life. It is further contended by the defendant that a clause in the lease executed between the parties hereto forbidding the habitat of domesticated animals in the apartment house in question was for the benefit of the tenant, and that it became and was the duty of the landlord to cause the said tenant to vacate or to forfeit said tenant’s lease or to compel him to get rid of or in some way suppress the cause of the annoyance to the quiet enjoyment of the defendant’s home.

Eminent counsel on both sides pleaded their case very well and the Honorable C. Addison Swift, attorney for the defendant, contended on the one hand that the parrot was such a domesticated animal as was described in the lease and that failure on the part of the landlord to get rid of it by causing its owner either to vacate, or to get rid of same, constituted not only a breach of the lease, but that its failure to act constituted a constructive eviction óf the defendant, and therefore defendant was not liable for the payment of rent for the unexpired term under the lease Mr. John J. Stamler, attorney for the plaintiff landlord, contended that the parrot in question was a bird and not a domesticated animal, and that the acts of the bird or of the tenant next door who owned the bird could not and should not deprive the landlord of the rent justly due it for the unexpired term of the lease. The apartment house in question contained about twenty families.

The matter coming on to be heard before the court, sitting in the dual capacity of judge and jury, and after listening to the testimony presented on both sides by learned counsel, the court finds as follows:

■ “At first blush,” as the poet Pope might say, this is a ease that could be appropriately designated in the language of our immortal Shakespeare, .“much ado about nothing,” hut the earnestness of counsel, and the parrot’s continual interference with the processes of thought on the part of some or most of defendant’s guests while playing at that delightful pastime—contract bridge—plus the fact that the constant schreechiness of the parrot might entail a loss of money to either party, have constrained the court to give it an unusual amount of attention.

The court took great pains to delve into the legal tomes of this state for the purpose of discovering the exact legal or judicial status of a parrot. It failed to find any judicial or legal status for a parrot—the so-called “cause” of the trouble in the case. And in order to prevent some other judge from growing pale while ransacking our court decisions from its very beginning to the present time, this court doth now hereby solemnly declare that a parrot is a domesticated animal.

The court doth further find that the parrot in question was very schreeehy, querulous, and extremely loquacious though not given (mirabile dictu!) to indulging in profane or indecent language. This virtue was graciously, and generously accorded the parrot by the uncontradicted testimony of the defendant and all his witnesses. The parrot, in this regard, had been well trained. Its foster parents had given much time, effort and thought to its proper bringing up. In their zealousness to make the parrot the talkative member of the family, they had forgotten in their education of him to teach him some of the nicer requisites of our present-day social customs.

In this day and age it is not good manners for a bystander or onlooker to interrupt or interfere in a card game, particularly so if it is contract bridge. And to speak much above a whisper is not to be tolerated from anyone much less from an animal who has had heretofore no judicial or legal status.

The court finds that the parrot was ill-mannered, in disrupting the train of thought of the card players, and that when the parrot attempted continuously to speak above the voices of the players themselves, he brought himself within the realm of judicial censure.

The court cannot refrain from judicially reprimanding the foster parents of the parrot for neglecting to teach the parrot when and when not to speak, or when and when not to inject his inharmonious, raucous, and monosyllabic words upon the unlistening ears of pensive, and serious-minded card players. This penchant to break up card games on the part of this particular parrot or on the part of social parrots in general is judicially frowned upon. The court finds the conduct of the parrot and of its foster parents in this case was grossly indiscreet and eminently anti-social.

The court regrets very much that these facts, important as they may seem to be, are not sufficient in law to render a verdict for the defendant, but finds itself constrained by the laws of this state to find for the plaintiff on the ground that the landlord is not responsible for the acts of a third party tenant.

The court further finds that the clause in the lease forbidding the habitat of domesticated animals in the apartment house by any tenant under pain of forfeiture of the lease was put in the lease by the landlord, and was for his own particular benefit, and certainly not for the benefit of the defendant (tenant) in this suit, nor for the other tenants who might have occupied the apartment house in question at the time complained of.

The court finds, therefore, that there is due the plaintiff, K. G. 0. Construction Company, from the defendant, George W. King, Jr., the sum of $130 and costs.