author: Pbb Ctjeiam.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. WILLIAM THOMAS, PLAINTIFF IN ERROR.
    Argued October 5, 1932
    Decided March 3, 1933.
    Before Justices Bodine and Donges.
    For the plaintiff in error, Archie Elkins.

    For the defendant in error, John Drewen.

   Pbb Ctjeiam.

The defendant was convicted of robbery. On October 21st, 1931, Samuel Nelson, an employe in the Oyster Bay Restaurant, Journal Square, Jersey City, New Jersey, was assaulted while making up the payroll and robbed thereof. He later identified the defendant as his assailant. Another witness had seen the defendant, shortly before the commission of the crime, standing in the premises not far from the office where the payroll was being made up. The defendant, previously employed in the restaurant, was out of work at the time of the crime. - He offered a number of witnesses whose testimony tended to show that he was not at the scene of the crime at the time of its commission but was in Newark. The verdict is not contrary to the weight of evidence. The state-offered proof which clearly established the defendant’s guilt. The identification of the defendant was complete and definite.

The trial judge, in the course of his charge, said it often happened that a person charged with crime, having no defense, says, “the best thing I can do I will present an alibi.” He then directed the jury to scrutinize the testimony of the witnesses adduced on behalf of the state and the defense with utmost care. Heading all that he said on the subject, it is apparent that the defendant was in no respect prejudiced.

The charge, in so far as it respects the alibi, sufficiently conforms with the rule followed in this state. At the same time, we wish to observe that the language of Mr. Justice Garrison in Sherlock v. State, 60 N. J. L. 31; 37 Atl. Rep. 435, has stood the test of time and need not be clarified or improved upon. The trial judge in this case did say in effect that this was a case where it was the duty of the state to prove the personal presence of the defendant at the seat of the crime, and that the effect of testimony to the contrary might create such a degree of uncertainty as to the whereabouts of the defendant that the jury could not be satisfied beyond a reasonable doubt of his guilt as charged. There is nothing in the language of the court that would suggest that the burden of proof had shifted, which, of course, was the vice in the charges in the authorities cited in behalf of the defense. The charge, as a whole, clearly leaves it to the jury to determine all disputed questions of fact. State v. Dragone, 99 N. J. L. 144; 122 Atl. Rep. 878.

The rulings of the trial judge on the admission and exclusion of evidence were not harmful and appear to have been made in pursuance of the exercise of a sound discretion. The-facility with which travel may be made between Newark and Jersey City is certainly a matter well known to every observant person, so that proof of the frequency of the operation of trains between the two places could do no harm.

It seems also evident that statements made by the witness Nelson not in the presence of the defendant would be inadmissible. His acts and observations, when he identified the defendant, were, of course, material and if evidenced by declarations such matters could have been brought out upon cross-examination, but precluding him from telling what he said on a previous occasion is not error in the absence of a showing of other facts and circumstances which might have made his declarations relevant on the issue being tried.

The comments made upon the evidence by the trial judge seem to fall within the rule which has long existed in this state. State v. Dragone, 99 N. J. L. 144; 122 Atl. Rep. 878.

The other assignments of error merit no further discussion. The judgment will be affirmed.


source: Caselaw Access Project

author: Pee Cubiam.

license: Public Domain

text:
    THE TOWNSHIP OF WYCKOFF IN THE COUNTY OF BERGEN, WALTER W. HARTWIG ET AL., PROSECUTORS, v. WILLARD I. HAMILTON ET AL., RESPONDENTS.
    Submitted October 14, 1932
    Decided March 3, 1933.
    Before Justices Bodine and Donges.
    For the township of Wyckoff, John B. Zabriskie.

    For the state water policy commission, J. Raymond Tiffany and William A. Stevens.

    For the village of Bidgewood, Thomas L. Zimmerman, Jr.

   Pee Cubiam.

The writ was allowed to review the action of the members of the state water policy commission in granting the application of the village of Ridgewood for the diversion of one million gallons of water daily, for the purpose of obtaining an additional source of water for immediate needs and to take care of the future needs of the municipality and surrounding territory supplied by it.

The state- water policy commission was created under the provisions of chapter 267 Pamph. L. 1929, p. 631. Section 8 of the act, in part, provides as follows: “The decision of the commission and its action on any application may be reviewed by certiorari proceedings.”

The question before us is whether the commission was justified in the action taken. Collingswood v. Water Supply, 84 N. J. L. 104; 86 Atl. Rep. 660; 85 N. J. L. 673; 90 Atl. Rep. 277. Our examination of the record leads to the conclusion that the action was well taken.

The prosecutors argue that the evidence does not disclose that the taking of the additional water is justified by public necessity. Although Ridgewood is seventy per cent, built up, it is still a growing community and its present wells are insufficient for its probable future needs. The testimony discloses that further operations within its boundaries would be of little, if any, advantage. A deeper well sunk in one of the existing areas produced no appreciable advantage. An adequate supply of pure water is of too much public importance to permit of a failure to anticipate reasonable future needs. The conclusions of officials charged with a duty to provide therefor cannot be set aside where the evidence sustains their findings. As we examine the record there was ample testimony adduced to support the findings. The mere suggestion that the future demands may be less does not alter the probability that they will be larger. The testimony of the witnesses called in support of the application is convincing. Experts never agree. The probabilities of the correctness of the conclusions of the engineers called by the applicant as to subsurface condition seems to us well authenticated. At all events, we are concerned only that the evidence supports the conclusions of the commission. This it does.

There seems nothing in the record to indicate the probability that the wells contemplated will interfere with existing wells in Wyckoff township. The circumstance that assurances were made by engineers of the village of Eidgewood that any injuries would be compensated for does not furnish a basis for concluding that injuries would occur. Of course, the contemplated wells are to be very deep and will probably have little or no effect upon wells in higher strata.

We think, if it were a matter for us, that the weight of evidence sustains the action taken. Other reasons assigned by the prosecutor were not argued and are, therefore, abandoned.

The writ will be dismissed.


author: Pek Oukiam.

text:
    CENTRAL HOME TRUST COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. WALSH BAKERIES AND RESTAURANTS, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Submitted October 14, 1932
    Decided March 3, 1933.
    Before Justices Bodine and Donges.

      Por the plaintiff-appellant, Richard V. Stein (Raymond A. Leahy).
    Por the defendant-respondent, George R. Walsh.

   Pek Oukiam.

The plaintiff sued for the rent reserved in a written lease. The defendant answered that by reason of the occupation of a part of the premises for a speakeasy the covenant for quiet enjoyment had been breached, and by way of set-off claimed the recovery of the money deposited as security under the lease. The jury gave judgment in favor of the defendant. The plaintiff appeals.

The defendant maintained a restaurant and bakery in a part of the premises leased situate at 6 and 8 West Jersey street, Elizabeth. The lessor was the 96 Broad Street Holding Company. Defendant was notified that the lease had been assigned by Max Stitch and Emanuel Levy to the plaintiff, Central Home Trust Company. Pent was thereafter paid to that company.

It appears that a noisy and disturbing speakeasy, where beer and other intoxicants were sold, was maintained above defendant’s premises by someone. At all events, one Drake worked there and all his dealings were with one Stitch— whether Max or not does not appear. Hor is it clear what interest Stitch had in the original lease so that he could assign the same. There is testimony that he and plaintiff were mutually interested in the lease and the proofs are open to the inference that Stitch had set up the speakeasy.

“The failure to put an end to the use of other apartments in the building for immoral and illegal purposes after notice has been held a breach of the covenant for quiet enjoyment.” 36 C. J. 80. The landlord in the instant case appears to have had at least knowledge of the speakeasy and failed to do anything effective about removing the same. Of course, the violation occurred while the Hobart act was in force.

The plaintiff moved for the direction of a verdict in its favor on the following ground: “That there was no conneetion between the Central Home Trust Company and the speakeasy and nothing there can be binding on the Central Home Trust Company.” The court properly denied this motion because the proofs showed that the plaintiff’s officers had knowledge of the existing condition.

The plaintiff moved for a nonsuit on the set-off on the ground that it had not been shown that the $405 ever came into the hands of the present holder of the lease. This motion was improperly denied because the deposit was a pledge and there was nothing to show it had ever reached plaintiff’s custody. Kaufman v. Williams, 92 N. J. L. 182; 104 Atl. Rep. 202. That the landlord was obliged to give credit on the amount of the last two months’ rent, to the extent of the deposit, does not alter the situation so far as the proofs are concerned. The assignment of the lease was not in evidence. The plaintiff’s obligations do not appear. It only appears that upon notice defendant paid rent to the plaintiff rather than to its lessor.

So far forth as there is a proper exception to the charge of the trial judge the same appears faultless. A similar observation applies to the rulings upon the admission and rejection of evidence.

The motion to dismiss the appeal will be denied. The judgment was entered July 1st, 1932. The bond filed within time was for an insufficient amount. On motion, the Supreme Court remedied the defect. The propriety of its acts cannot be questioned before us, even though the order was by a single justice. The transcript was certified within time. A certificate made on the sixteenth of the month is made within fifteen days after the first day of that month.

The judgment in favor of the defendant on the counterclaim is reversed, to the end that there may be a new trial on the issue raised by the counter-claim. In other respects, the judgment is affirmed.


author: Eldredge, C. C. J.

text:
    THERESA M. DI LELLO AND ANGELO DI LELLO, HER HUSBAND, IN HIS OWN RIGHT, PLAINTIFFS, v. MANUFACTURERS’ LAND AND IMPROVEMENT COMPANY, A CORPORATION, DEFENDANT.
    Decided March 3, 1933.
    Before Henry H. Eldredge, Circuit Court judge.
    For the plaintiffs, Walter S. Keown.

    For the defendant, George H. Jacobs.

   Eldredge, C. C. J.

The plaintiffs in the above entitled suit seek to recover damages for,injury to Theresa M. Di Lello occasioned by a fall upon a sidewalk of the defendant on the 20th day August, 1930. The gravamen of the complaint is set out in paragraphs two and five thereof, as follows:

"2. Said defendant, as aforesaid, at the time and place hereinafter mentioned, as owner of said property was under a duty to keep the sidewalks on said property free of any unguarded obstructions and in a proper state of repair for use by the traveling public.”

“5. At the time and place aforesaid, said defendant, Manufacturers’ Land and Improvement Company, negligently, carelessly and improperly allowed to and did permit to exist in the cement or concrete sidewalk, which extended on and along its said property as aforesaid, a raised and broken condition; in that said defendant, as aforesaid, allowed said cement or concrete sidewalk to become so raised and broken and so negligently allowed and permitted said cement or concrete sidewalk to become so dangerous that it imperiled the lives of the traveling public .at large, that had a right to pass on and along said sidewalk; in that said defendant, as aforesaid, negligently and carelessly knew and had knowledge of the dangerous condition of the said cement or concrete sidewalk, viz., the raised, uneven and broken condition of said sidewalk and the height of same in comparison with the level of said sidewalk and negligently failed to repair the same; in that said defendant, as aforesaid, knowing and having knowledge of the dangerous condition of said cement or concrete sidewalk, negligently failed to have any notice, warning, signal or other device placed upon or about said cement or concrete sidewalk for the purpose of warning the said public at large, so that while the said plaintiff Theresa M. Di Lello was lawfully walking on and along the southerly side of the said Ferry avenue, between the points of Eighth and Ninth streets, public highway of the city and county of Camden and State of New Jersey, which was the property of the said defendant, as aforesaid, without seeing the raised, broken and uneven condition of the said cement or concrete sdewalk she fell and tripped over same and injured herself.”

Two motions are now before the court. First, counsel for the defendant moves to strike the complaint on the ground that it discloses no causes of action, and second, counsel for the plantiff moves to amend the complaint by adding to paragraph 5 thereof the following:

“And further the said defendant negligently, carelessly and improperly constructed or caused to be constructed the said concrete sidewalk abutting on the premises owned by the said defendant, either through itself or by and through its servants, agents or employes, so that by reason of said improper, negligent and careless construction, the said cement or concrete sidewalk became raised, broken and in an improper condition, by reason of which the plaintiff fell and tripped over the same, thus injuring herself.”

These two motions will be treated together. Without an amendment to the present complaint, we think that there can be no doubt that the first motion would prevail. In fact, counsel for the plaintiffs did not argue that this complaint could stand. Should there be any. attempt to sustain it, a complete answer is to be found in Rupp v. Burgess, 70 N. J. L. 7; 56 Atl. Rep. 166, in which Chief Justice Gummere said:

“The first count plainly discloses no cause of action. It is based upon the assumption that the owner and occupant of premises abutting upon a public street is under a legal duty to keep in repair the sidewalk in front of his property. But no such obligation rests upon him unless by virtue of the requirements of a city or municipal ordinance * * * and even when the duty of repairing sidewalks is imposed upon the abutting owner by statute or ordinance, failure'to perform that duty does not render the owner responsible to individuals for injuries received by them resulting from defects in the sidewalk due to want of repair. The only liability which rests upon the property owner for non-performance of such a duty is the penalty provided by the statute or ordinance.”

To the same effect see Rose et al. v. Slough, 92 N. J. L. 233; 104 Atl. Rep. 194, and Sewall et al. v. Fox et al., 98 N. J. L. 819; 121 Atl. Rep. 669.

There are cricumstances where the abutting owner may be held liable for failure to repair, as where he constructs in or on the sidewalk something for his own private use, such as a drain, and injury results from his failure to maintain. No such circumstances are set out in the present complaint. The charge merely is failure to repair and maintain. Hence, there is nothing to take the case out of the general rule.

It follows, then, that counsel for the defendant is entitled to have the complaint stricken on the ground that it sets up no cause for action, unless the second motion be granted and the amendment permitted.

It is to be noted that the injury was received on the 20th day of August, 1930, so that considerably more than two years have elapsed since the happening. Had the application to amend been made prior to the expiration of the two-year period, there could be no question as to the court’s power to permit such amendment and it would not matter that the amendment set up a new or different cause of action (sections 23 and 24 of the supplement to the Practice act, Pamph. L. 1912, pp. 381, 382), and even after the expiration of the statutory period the amendment may be permitted if it merely expands or amplifies what was alleged in the cause of action already asserted. Swank v. Pennsylvania, Railroad Co., 94 N. J. L. 546; 111 Atl. Rep. 44.

In the present suit, the original complaint, in short, charges failure to keep the sidewalk in repair, while the amendment charges failure to properly construct. The question then before this court is to determine whether the amendment sought sets up a new or different cause of action.

It is apparent that it is frequently difficult to determine where the line is to be drawn between what constitutes the same cause of action and a new or different cause. There is, however, a very helpful and comprehensive test found in O’Shaughnessy v. Bayonne News Co., 109 N. J. L. 271; 9 N. J. Mis. R. 345; 154 Atl. Rep. 13, in which the court says:

“It is quite generally held that if the identity of the transaction formed the cause of action originally declared upon is adhered to, and amendment is not ordinarily regarded as substantially changing the plaintiffs’ claim or as stating a new or substantially different cause of action. So, an amendment will not, as a rule, be held to state a new cause of action if the facts alleged show substantially the same wrong with respect to the same transaction, or, if it is the same matter more fully or differently laid, or, if the gist of the action or the subject of controversy remains the same; and this is true although the form of liability asserted or the alleged instances of the transaction may be different.”

Applying this test, we think the amendment cannot be allowed. The charge in the amended complaint is not substantially the same wrong with respect to the same transaction as that alleged in the original complaint. The wrong in one is failure to repair and maintain, while the wrong in the other is failure to properly construct. Nor is it the same matter more fully and differently laid, but rather it is a different matter setting up a different cause of liability. Neither can it be said that the gist of the action nor the subject of the controversy is the same.

Bouvier’s Law Dictionary defines “gist” to be “the essenital ground or object of the action in point of law, without which there would be no cause of action * * * the cause for which an action will lie; the ground or foundation of a suit, without which it would not be maintainable; the essential ground or object of the suit without which there is no cause of action.”

In the light of this definition or of these definitions, the gist of the action set up in the amended complaint is negligence arising from defective construction of the sidewalk, from which injury resulted to the plaintiff. That is not the same as the gist of the action attempted to be set up in the original complaint. To permit the amendment, therefore, would set up a new cause of action, and hence the amendment cannot be allowed.

The motion to amend will therefore be denied and the motion to strike the complaint be granted.


author: Per Curiam.

text:
    HANNAH G. DOLAN AND JAMES P. DOLAN, PLAINTIFFS-RESPONDENTS, v. GOODMAN WAREHOUSE CORPORATION, DEFENDANT-APPELLANT.
    Argued October 5, 1932
    Decided March 3, 1933.

      Before Justices Bodine and Donges.
    For the defendant-appellant, Arthur T. Vanderbilt.

    For the plaintiffs-respondents, George E. Cutley.

   Per Curiam.

The plaintiff warehoused with the defendant, for hire, household goods. A fire occurred in its warehouse, the goods were damaged and the present action was brought to recover damages because of the alleged negligent storage of the same. The defendant should have prevailed on its motion for a directed verdict.

The principles of law applicable to the case as tried are stated in Kittay v. Cordasco, 103 N. J. L. 156; 134 Atl. Rep. 667, and Armstrong Rubber Co. v. Erie Railroad Co., 103 N. J. L. 579; 137 Atl. Rep. 596. It was held in those cases that the inference of negligence, because of the failure to return the goods, may be answered by proof of circumstances attending the loss and if this proof, and all the other circumstances of the case, establishes beyond question that there is no evidence from which the jury might properly find negligence on the part of the bailee, he would be entitled at the hands of the court to a directed verdict.

The proofs in this case indicate that the warehouse was modern and well constructed. Certain films, seized by the prosecutor of Hudson county, had been stored in the warehouse. A fire of incendiary origin occasioned plaintiff’s loss. There is no proof that there was spontaneous combustion of the films. In fact, the proofs indicate that the loss was occasioned by the fire, which started at some distance from the place where the films were stored. The evidence that there was a requirement of the Jersey City fire department that films be stored in steel vaults with a thermostatic heat control does not outweigh the testimony that the films were properly stored. But even assuming otherwise, there is no evidence that improper storage of the films, or any of the goods in the warehouse, was the proximate cause of the injury suffered by the plaintiffs. In fact, the proofs all indicate the contrary.

The other matters argued in the appellant’s brief are now unnecessary of discussion.

The judgment is reversed.


text:
    RAFFAELE PIZZELLA, PLAINTIFF-RESPONDENT, v. FREDERICK PICHARD, DEFENDANT-APPELLANT.
    Submitted October Term, 1932
    Decided March 4, 1933.
    Before Justices Teenoiiard, Case and Brogan.
    For the plaintiff-respondent, Benjamin Baron.

    For the defendant-appellant, Jacob Siegal (Louis Ruben-stein, of counsel).
   Per Curiam.

This ease presents an appeal from the Bayonne District Court. It is a case involving personal injuries to the plaintiff while he was a passenger on the bus of the defendant-appellant.

At the end of the whole case, which was tried without a jury, the court indicated that the finding would be in favor of the defendant, remarking, “I do not see any liability in this case. How do you think you have established any negligence on the part of the defendant? * *

“Plaintiff’s version of how this accident happened is highly improbable while it is entirely possible and probable that the plaintiff sustained the injuries which he complains of in the manner testified to by the defendant.”

Plaintiff’s counsel, immediately said, “I would like to have permission to take a nonsuit,” which the court granted. Counsel for the defendant objected and his objection was overruled and judgment for nonsuit was entered to which an exception was taken and that is the sole ground of appeal.

We think that the court below was correct in allowing the plaintiff to submit to a voluntary nonsuit and that the case is well within the decisions and provisions of the statute governing matters of this kind. Section 160 of the Practice act takes away the right of plaintiff to submit to a voluntary nonsuit only “after the jury has gone from the bar to consider their verdict.” This section applies to District Courts. Greenfield v. Cary, 70 N. J. L. 613; 57 Atl. Rep. 269.

In the instant case, however, the court sat as a jury and it had not pronounced its judgment and at this stage of the trial a voluntary nonsuit was still a matter of right. The remarks of the judge were not dispositive of the case. It was still open to argument. The prospective verdict was still quite clearly under consideration only. Ciesmelewski v. Domalewski, 90 N. J. L. 34; 100 Atl. Rep. 179; Malone v. Erie Railroad Co., 90 N. J. L. 350; 101 Atl. Rep. 415.

The judgment of the District Court is therefore affirmed, with costs.


author: Pee Ctjkiam.

text:
    C. A. HEIL, Jr., PROSECUTOR, v. THE MAYOR AND BOARD OF COMMISSIONERS OF THE CITY OF WILDWOOD, NEW JERSEY, RESPONDENTS.
    Argued October 4, 1932
    Decided March 6, 1933.

      Before Justices Paekee and Lloyd.
    For the prosecutor, William Elmer Brown, Jr.

    For the respondents, Harry Tenenbaum and Carl Kisselman.

   Pee Ctjkiam.

Originally a rule to show cause why a writ of certiorari should not issue, by stipulation of the parties it was agreed that the writ issue and that the court dispose of the case finally on the record as presented on the return of the rule.

Heil is the city clerk of Wildwood and his salary has been $3,500 per annum.. By resolution of the mayor and board of commissioners the salary was reduced to $1,200. The writ brings up this resolution. Two grounds are urged for setting it aside, (1) that there is no authority in the law for the respondent to fix a salary of any of its officials by resolution, the statute requiring that it shall be done by ordinance, and (2) that the resolution is not in good faith, but was for the purpose of forcing the prosecutor out of his office.

While not impressed with the second point, we think the first makes necessary the setting aside of the resolution in so far as it affects the salary of the prosecutor. The law seems to be clear on the subject. The Home Rule act (chapter 152 of the laws of 1917, page 350) provides in the first section of article 13 for the fixing of salaries by ordinance, and chapter 162, laws of 1929, page 291, seems to prescribe the same method. The latter statute we considered in Adams v. Plainfield, 109 N. J. L. 282; 161 Atl. Rep. 647.

As to the second point, the straitened financial condition of most municipalities at this time is a matter of common knowledge as well as the need for drastic action in curtailment of municipal expenses. While the reduction in the case of the prosecutor is very large, there seem to be other reductions approaching the same sort of a cut.

Certain speeches of one of the members of the municipal board are laid hold of by the prosecutor to indicate that there was bad motive inducing the severe reduction of the prosecutor’s salary, but we think such motive is not shown by the proofs. Strong efforts were made in the fall election to displace the old city government and in doing so promises to reduce municipal expenses in the event of election of this candidate were given, but we can see nothing in this which indicates animosity or malicious purpose toward the prosecutor or that the reduction was not made in good faith.

The resolution will be set aside, but on the single ground that it was a resolution and not an ordinance.


author: Pee Cukiam.

text:
    KLEINFELD FURNITURE COMPANY, INCORPORATED, A CORPORATION OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ALEX LICHTENBERG AND SARA LICHTENBERG, DEFENDANTS-APPELLANTS.
    Submitted October Term, 1932
    Decided March 4, 1933.
    Before Justices Trenchard, Case and Brogan.
    For the plaintiff-respondent, Moses Jaffe (Robert E. Dolían, of counsel).
    For the defendants-appellants, Heller é Boss (Aaron Heller, of counsel).
   Pee Cukiam.

This is an appeal from a judgment for possession of chattels rendered in favor of the plaintiff below in the District Court of the borough of Clifton.

Prom the state of case submitted it appears that the plaintiff, an installment furniture house, instituted an action in replevin to recover possession of certain articles of furniture sold to the defendant under a conditional sales agreement, alleging default in the payments agreed upon. The plaintiff filed a replevin bond upon thé institution of the suit and the defendants, after the replevin writ had been served upon them, claimed a right of property in the chattels and filed a, bond pursuant to section 126 of an act concerning District Courts. 2 Comp. Stat., p. 1993.

In behalf of the plaintiff, testimony was adduced tending to prove the sale of the merchandise to the defendants, the conditional sales agreement, which was received in evidence, ánd the default. The contract of sale provided that the conditional vendor might retake possession of the merchandise sold under it, upon default on the part of the buyer. There was testimony also that a demand for the possession of the merchandise in question was made by the plaintiff before this suit was instituted which demand was refused. The plaintiff rested and the defendants asked for a direction of verdict on the ground that the plaintiff had failed to prove a “proper” demand. The court denied the motion. No testimony whatever was offered by the defendant to in any way controvert plaintiff’s evidence and the court, having found as a fact that a demand had been made and there patently having been a breach of the conditional sales agreement, gave judgment for possession in favor of the plaintiff.

The defendants, who are the appellants here, appeal on the ground that the court should have directed a verdict in their favor and that it was error for the court to have held that the defendants by claiming a right of possession in the chattels and by filing a redelivery bond had waived the requirement of a demand.

At common law, before a writ of replevin might issue, it was necessary to show that there had been a demand made for the return of the personal property for the reason that the essence of a replevin action was to regain possession of personal specific chattels which possession has been refused. This requirement has been written into our statute which, however, nowhere provides that for maintaining this action the demand, as the appellant argues, must be in writing.

The court found as a fact in this case that a demand had been made and found that “there was no necessity for a demand to be in writing.” In this we think the District Court judge was clearly right. The court also held that the “assertion by the defendants of the right to possession and their filing of a redelivery bond * * *” amounted to a waiver of the necessity of a demand.

Taking the record as it comes before us, the state of the case for this appeal having been settled by the District Court judge, it may well be that the conduct of the defendants, as described by the plaintiff’s testimony, may have been such as to have justified the court in the assertion that it did amount to a waiver of the demand. If that be so it would be within the rule laid down in the case of Voorhees v. Thomas, 107 N. J. L. 134; 146 Atl. Rep. 927, where we find this language: “Defendant may clearly indicate a stubborn refusal to deliver.”

The court’s finding that a demand had been made was sufficient. The judge need not have gone any further and whether it was legally proper so to do we cannot decide because of the meagerness of the record. At all event, whether this statement complained of be justified or not, it is not under the circumstances of this case reversible error. Coupled with the other fact findings of the court, at best, it is superfluous.

However, be that as it may, the judgment under review will be affirmed because the court below did find that a demand had been made; that the conditional sales agreement had been breached and that there had ben a default.

The judgment of the District Court is therefore affirmed, with costs.


text:
    OAKFORD M. COBB ET AL., PROSECUTORS, v. CITY OF WILDWOOD, DEFENDANT.
    Submitted October 14, 1932
    Decided February 28, 1933.
    Before Justices Parker, Lloyd and Heher.
    For the prosecutors, Edward F. Merrey.

    For the defendant, Carl Kissehnan.

   Per Curiam.

The writ brings up a resolution of the board of commissioners of Wildwood, abolishing certain offices of the higher grades in the local police department. This resolution was adopted May 25th, 1932. The writ also brings up a resolution adopted May 24th, reducing all officers to the rank of patrolmen. The five prosecutors were respectively chief of police, captain, lieutenant, captain of detectives, and a sergeant. • The office of another sergeant was included in the resolution, but he is not a party hereto.

If the resolution of May 25th was lawful, the validity of that adopted on the 24th appears to be an academic question only. We are of opinion that the resolution of the 25th is immune to any attack here made on it. That attack is, in brief, that it was not passed in good faith, but for political reasons, and that the prosecutors are by statute protected from political interference. We have carefully examined the evidence, and conclude in this case, as in Heil v. Wildwood, 11 N. J. Mis. R. 171, of the present term, that the abolition of these offices in a city of about five thousand inhabitants as shown by the last census, was ordered in good faith in reduction of excessive municipal expenditure. Prosecutors properly concede that such offices may be Iona fide abolished in the interests of economy. This, in our judgment, was the moving reason for the action taken.

Other reasons, not argued, have not been considered.

The writ will be dismissed, with costs.


text:
    JOHN I. PHILLIPS, PROSECUTOR, v. CITY OF WILDWOOD, DEFENDANT.
    Submitted October 14, 1932
    Decided February 28, 1933.
    Before Justices Parees, Lloyd and IIeher.
    For the prosecutor, Edward F. Merrey.

    For the defendant, Carl Kisselman.

   Per Curiam.

This is a rule to show cause why a writ of certiorari should not be allowed to bring up for review a resolution of the board of commissioners of Wildwood, reducing the pay of the various members of the local police department. No formal reasons are filed, and the application is submitted on briefs. In that for the prosecutor but two points are made. The first is that. the resolution was not bona fide in the interest of economy. We have considered a similar question in Heil v. Wildwood, 11 N. J. Mis. R. 171, and Cobb et al. v. Wildwood, Ibid. 176, both at the present term, and conclude in this case as in those, that the claim is not supported by the evidence. The second point is that the reduction was the second within the fiscal year, contrary to section 5 of article 13 of the Home Rule act. Pamph. L. 1917, p. 351. But this is not founded in fact. The commissioners in December, 1931, did order that the officeholders be requested to consent to a voluntary reduction, effective January 1st, 1932; but even if this be considered as a reduction assignable to 1932, of which we are not convinced, still there was no official legislative action putting it in force. Legally it was a request and nothing more, and had no binding force.

Neither point being deemed well taken, the rule to show cause will be discharged, with costs.


text:
    CHESTER W. PATTERSON, RELATOR, v. THE BOARD OF EDUCATION OF THE CITY OF TRENTON, MERCER COUNTY, RESPONDENT.
    Submitted October 14, 1932
    Decided March 3, 1933.
    Before Justices Bodine and Donges.
    Por the relator, Robert 8. Hartgrove.

    Por the respondent, Aaron V. Dawes.

   Per Curiam.

It appears that the Trenton board of education provides a course in swimming in the new Central high school. Although there is no discrimination between races in the class room or the gymansium, the colored youth are not permitted to take swimming lessons, except with those of their own race. Such action is discrimination. Boys or girls enrolled in a class in the public schools of this state are entitled to receive instructions, without any discrimination, predicated upon race. To say to a lad you may study with your classmates; you may attend the gymnasium with them, but you may not have swimming with them because of your color is unlawful discrimination.

The writ will be allowed.


text:
    ROBERT ECCLES, PROSECUTOR, v. TOWNSHIP COMMITTEE OF EGG HARBOR TOWNSHIP, RESPONDENT.
    Submitted October 14, 1932
    Decided March 6, 1933.
    Before Justices Parker, Lloyd and Heher.
    Por the prosecutor, William, I. Garrison.

    Por the respondent, Thompson Eanstein.

   Per Curiam.

In November, 1931, the prosecutor was elected tax assessor of Egg Harbor township for a term of three years, beginning July 1st, 1932. On June 30th, 1932, the township committee passed an ordinance purporting to create a board of assessors consisting of three members at a salary of $300 each per annum, and on the same day by resolution appointed three named persons, including Eccles as one. Two of the appointees qualified, but Eccles refused to do so and applied for and obtained a rule to show cause why a writ of certiorari should not issue to test the validity of the ordinance.

The township committee claimed the right to adopt the ordinance under chapter 312 of the laws of 1926 (page 522). This act undoubtedly does authorize such action, but it is said that it was not complied with and that the act is unconstitutional. The respondent contends to the contrary.

We think the legality of the proceedings of the township committee is sufficiently doubtful to justify allowance of the writ of certiorari applied for. The power of the township committee rests upon the above statute. This provides that it shall not be operative until its provisions are accepted by ordinance of the governing body of the township. Whether it was constitutional in this respect raises a question which we think the prosecutor is entitled to have adjudicated. Attorney-General Booth v. McGuinness, 78 N. J. L. 346; 75 Atl. Rep. 455; McCarthy v. Walter, 108 N. J. L. 282; 156 Atl. Rep. 772. And we will not anticipate its ultimate disposition by further discussion.

The writ is therefore allowed.


text:
    DOMINICK V. DANIELS, PLAINTIFF, v. RUSSELL E. WATSON, DEFENDANT.
    Submitted October 14, 1932
    Decided March 6, 1933.
    Before Justices Parkeb, Lloyd and Heheb.
    For the plaintiff, John G. Flanigan {John L. Ridley, of counsel).
    For the defendant, Carey •& Lane.

   Pee Cubiam.

A rule was allowed in this case to show cause why the venue should not be changed from Hudson county where the plaintiff resides, to Middlesex comity where the defendant resides. Depositions were taken under the rule and they are before us. Prom these it appears that one Brown had a claim against the defendant for services for an investigation in matters arising out of the investigation of a legislative committee. His claim was placed in the hands of an attorney who made efforts to get a settlement but liability was disclaimed by the defendant. A formal assignment was then made of the claim by Brown to Daniels, the plaintiff. Suit was brought, summons issued and a complaint filed laying the venue in Hudson county. To the complaint an answer was filed but no question of venue then raised. The case then came on in due course before Judge Ackerson and a jury for trial in that county.

During the progress of the trial defendant’s counsel questioned both the plaintiff and Brown as to the assignment, calling attention to the fact that it had not yet been proved. It was suggested by the court that counsel was attempting to raise the question of jurisdiction and remarked that if so he had a right to compel security for costs. Security for costs was then tendered by the plaintiff’s counsel but declined by defendant’s counsel who stated that he did not ask for anything, that he was “just asking the witness a few questions.” The case then proceeded to the end and the jury disagreed. A month later the present rule was obtained.

It seems to be assumed by both parties, although there is no authority cited to support it, that a claim cannot be placed in the name of a resident for the purpose of suit and thereby confer a right in the assignee to lay the venue of the case in the county of his residence, but we are not satisfied that this is so. A plaintiff holding a valid assignment of a claim under our statutes may sue in his own name regardless of whether he is the beneficiary or owner or holds it as trustee, and if he may bring such suit it is clear that he may bring it in the county where he resides and in such case a change of venue would not be directed.

But apart from this we think the defendant is clearly estopped from now pressing for a change,of venue. When the claim was originally made the defendant knew that the claimant was Brown and that Brown was the real party in interest. When the action was started in the name of Daniels the assignment was alleged and the defendant filed answer avering that he did not know anything about the assignment, but required the plaintiff to prove it. When the trial came on his counsel questioned the parties as to the bona fides of the assignment and the judge naturally assumed that the purpose was to raise the jurisdictional question of the venue in Hudson county. To this defendant’s counsel gave no support, but indicated that he was simply asking for information, or possibty, from mere curiosity, and proceeded with the trial of the case, taking his chances before the court and jury before whom the case was being tried.

Under such circumstances the application comes too late. Generally, application for a change of venue should be made before plea filed. Wildes v. Mairs, 6 N. J. L. 320; Bell v. Morris Canal Co., 15 Id. 63. In Force v. Carr, 9 N. J. L. J. 311, Mr. Justice Depue made this observation: “The proper time to make an application for a change of venue is before plea filed, and the filing of a plea will be regarded as a waiver of the right to apply for a change of venue unless upon substantial grounds.”

In the present situation not only is the application out of time, but by electing to proceed with the trial and taking chances of a favorable verdict at the hands of a jury in Hudson county, it is clear that the defendant elected to stand upon the venue as alleged in the complaint and waive all right to ask for the change.

The rule is discharged, with costs.


author: Smith, S. C. C.

text:
    GEORGE BILLY ET AL., PLAINTIFFS, v. ABE TATARSKY, DEFENDANT.
    Decided March 2, 1933.
    For the plaintiffs, Maurice M. Margolis (Benjamin H. Braelow, of counsel).
    For the defendant, Harvey G. Stevenson.

   Smith, S. C. C.

This application is made by the plaintiffs to strike out a demand for a bill of particulars in a negligence action arising out of a collision between two automobiles. The demands might be grouped under several classes as follows : As to the manner in which the accident happened, as to the negligence charged, as to the injuries and their extent, as to the confinement and disability; as to the loss of wages, as to the physicians, and as to disbursements in, medical treatment.

The question in dispute raised on this motion have been the cause of a great many similar motions. There seems to exist an opinion among many members of the bar that the sole purpose of a bill of particulars is to furnish the pleader with information so that he may be enabled to frame his pleadings in defense or in reply. That this was its origin and primary purpose I do not doubt. But the scope o£ inquiry by bill of particulars has, however, been considerably enlarged, and the enlarged scope approved by our Supreme Court.

In Watkins v. Cope, 84 N. J. L. 143; 86 Atl. Rep. 545, so often cited in our courts on the question of the propriety of interrogatories, the court, in passing on interrogatories calling for items of damage, says: These “have habitually been obtained by a demand for particulars.” In Dixon v. Swenson, 101 N. J. L. 22; 127 Atl. Rep. 591, which had to do with when and how bills of particulars should be demanded, the court says: “The function of a bill of particulars was none other than to furnish the pleader with information so that he would * * * be enabled to frame his pleadings in defense or in reply.” But in another part of the opinion, referring to Johnston v. Bowers, 69 N. J. L. 544; 55 Atl. Rep. 230, the court says that a bill of particulars is for the purpose of trial information as to the scope of the claim. The citation of Johnston v. Bowers, supra, however, states: “But the bill of particulars limits and defines for the purpose of trial, the scope of the plaintiff’s claim.”

Finally, the Supreme Court, in Hopper v. Gillelt, 6 N. J. Mis. R. 63; 140 Atl. Rep. 17, I think has set the matter at rest and decided as to the scope of inquiry by way of a bill of particulars. The court says: “The bill of particulars has the two-fold effect of informing the defendant with relation to the details of the plaintiff’s case with a view of preparing of a proper pleading in reply to the complaint, and also of limiting the plaintiff’s proof on the trial, as well as apprising the defendant what is proposed to be set up.”

This case follows the opinion of Mr. Justice Garrison in the case of Heppard v. Carr & Smith (Supreme Court, 1889), 12 N. J. L. J. 186, which lays down the rule that the party who avers matters he must prove on the trial, shall so far apprise his opponent concerning them that he may intelligently prepare his pleading and defenses.

We therefore have authority for the proposition that a bill of particulars is: First, for the purpose of obtaining information with regard to the plaintiff’s claim with more detail than set out in the pleading with a view of preparing a p'roper pleading in reply ■ to the complaint; second, apprising the defendant of what is proposed to be set np at the trial to the end that the defendant may be prepared at the trial to combat the proposed proof of the plaintiff; third, the obtaining of the particulars of the items of damage to the end that the plaintiff may be limited in his proof at the trial and to inform the defendant as to what these items are so that he may be prepared to meet them at the trial.

I have purposely refrained from referring to the decisions of Supreme Court justices (other than that of Mr. Justice Garrison in Heppard v. Carr & Smith, supra, which seems to have been approved in Hopper v. Gillett, supra), and of Circuit Court judges in disposing of motions in reference to striking out demands for bills of particulars, because they are not in entire accord. I therefore believe it to be better practice to base my conclusions on the cases decided by our Supreme Court at bar.

We come now to the application of these general principles to the particular demands under consideration of this motion.

The plaintiff sues for damages charging that the defendant negligently ran into his car from the rear. I will refer to the demands by number.

1. The defendant demands information as to the manner in which the defendant was negligent in the operation of his automobile. The complaint alleges a duty on the defendant’s part to operate his automobile in a cautious manner, having same well under control at all times, and with due regard to the rights and safety of others using the said highway in common with him, and to observe traffic conditions as they existed at the aforesaid time and place; and the negligence charged was that the defendant violated this duty in that he operated his automobile at an unlawful rate of speed without proper lights, without properly observing traffic conditions as they existed at the aforesaid time and place, and in that he did not give proper warning of his intention to proceed.

The information given him by this complaint, it seems to me, pretty clearly covers the questions of negligence. I think, however, that the defendant is entitled to an answer to this demand for particulars as to the improper lights. The other charges of negligence, I think, are so comprehensively alleged in the complaint that no further information need be elicited.

Two and 3 may be considered together. They ask for particulars of the injuries, the nature thereof and which are temporary; and whether the plaintiff is cured, and if not, which injuries he still suffers from and for which he still undergoes medical treatment.

These inquiries are proper and should be answered. It is important for the defendant to know these particulars so as to limit the plaintiff in his proof or damage and to enable him to prepare his own ease for trial by directing his proof at the particular injuries claimed. The complaint has listed the injuries with some detail, but it is my view that the defendant is entitled to more particulars than given in the pleadings, which quite usually cover a very wide field.

In considering the propriety of having answers to these demands, it must be borne in mind that while physical examinations are permitted from which information can be obtained as to the nature and extent of the injuries, there is no definite way of fixing information given to the examining physician so that it will be binding on the plaintiff, or to make up for the phyiscian’s lack of inquiry. We so frequently find on the trial that the physicians did not examine as to certain injuries claimed by the plaintiff, the physician stating that he was not informed that there was any claim in reference to them and that the plaintiff stating that the physician had been apprised of them. This bill of particulars does away with this controversy and discloses the conditions to which the examining physician is to direct his attention.

Four to nine inclusive may also be considered together. No. 4 asks that the plaintiff disclose whether or not the plaintiff was confined in a hospital, and if so, to what hospital and for how long, giving the dates. No. 5 asks for details as to the injuries which are permanent in character. No. 6 inquires as to the period of confinement. No. 7 asks for the place of confinement. No. 8 asks for the manner in which the plaintiff was disabled and rendered incapable of performing his work. No. 9 asks whether the plaintiff was employed and the details of employment, as to the capacity, salary, name and address of employer and the length of time for which the plaintiff was unable to attend to his employment. In allowing the disclosure of the name of the hospital I have in mind the right of such institution to create a lien upon the cause of action. The name of the employer I think should be disclosed because it relates to the employment which existed previous to the accident.

All these demands, it seems to me, should be answered. They go principally to limit the plaintiff as to his damage and to give the defendant particulars which will aid him in the preparation of his defense, and I think are warranted by the rule which I have adhered to and the ruling of the court in Hopper v. Gillett, supra.

The advisability that the defendant should have settled as to scope and amount the items of damage in so far as may be, cannot be gainsaid, as it is the best aid to the settlement of the case. That inquiry as to items of damage due to loss of time from business may be elicited by bill of particulars was approved by Mr. Justice Bodine in an observation made by him in speaking for the Court of Errors and Appeals in the case of Alexander v. Cheaster, 110 N. J. L. 95 (at p. 97); 164 Atl. Rep. 287.

10. This is a demand that the plaintiff furnish the names and addresses of the physicians treating the plaintiff and the number of treatments he has received.

While it is recognized under the rules that I have laid down that the names and addresses of witnesses may be obtained, I do not think one of its purposes is the obtaining from the adverse party the names and addresses of his witnesses.

It has been held improper in the case of an interrogatory. Wailcins v. Dope, supra. The court in that case, in striking out the interrogatory directed to a question asking for names and addresses of witnesses, held it improper and did not refer to its being a proper inquiry by way of bill of particulars, as it did in disposing of other interrogatories that had been stricken out.

I think the proper rule with regard to this question is that if in obtaining an answer to a bill of particulars proper in itself, names and addresses of witnesses must necessarily be furnished as incident to the answer, that they should be furnished. To put it as stated in Corp. Jur.: “The fact that a bill of particulars may disclose the pleader’s evidence or the names of his witnesses is no objection to ordering it, if the pleader is otherwise entitled to it, as where it may give definite information with respect to a material fact at issue.” 49 Corp. Jur. 638.

This distinction is shown in Sundheimer v. Barron, 114 N. Y. Supp. 804; 62 N. Y. Misc. 263, and in the numerous cases on conspiracy where, in order to find who the conspirators are it is necessary to obtain their names, and some of these may be witnesses for the other side.

While I have not covered the whole field outside of New Jersey in my examination of the cases, I have not found any case where the court has directed the name of the doctor to be furnished. It was held improper in New York by the Appellate Division of the First Department in their Supreme Court in the case of Steman v. Metropolitan Street Railway Co., 71 N. Y. Supp. 254, and in citing that case the court, in the case of Taylor v. Security Mutual, 71 N. Y. Supp. 671 (at p. 675), in its comment, said: “In such cases the issuable fact is the extent of the injuries, not who has treated the patient thereafter.”

In an action for personal injuries in the case of Green v. Johnson, 110 N. Y. Supp. 104; 126 App. Div. 33, the court denied to the defendant knowledge of the names and addresses of the physicians, &c., saying: “She should therefore specify how much, if any, she has expended for medicines and for medical aid and treatment and for the attendance of a nurse; but knowledge of the names and addresses of physicians, druggists and nurses are not essential to apprise the defendant of plaintiff’s claim for such expenditures.”

Names and addresses were required in the ease of Hopper v. Gillett, supra, following Heppard v. Carr & Smith, supra. I think the propriety of answering the demand under consideration can be distinguished from the cases referred to. Hopper v. Gillett was a malpractice case where it might be essential in the determining of the question of liability to inquire into the action of the physician who followed the defendant in the treatment of the plaintiff. What the plaintiff’s-condition was when he came into the hands of the succeeding physician might be very important in passing on question of liability. It is true that in Hopper v. Gillett it was referred to as being allowed on the question of consequential damages. Still the case that was referred to as being authority for requiring that an answer be made to the demand was Heppard v. Carr & Smith. That was a contract issue. The plaintiff claimed for services in reference to plumbing work done for third parties under his management, but acting for the defendant, and the names and addresses of such third parties were required. Clearly this went to the question of liability as well as to the question of damages. As to the names of persons being involved, it might have been appropriate for the inspection of the work. and further investigation with regard to the work that was done.

The object of obtaining the answer, I assume, is two-fold: First, to permit an investigation to be made through the physician as to the services he rendered; and second, as to his charge. As to the charge, the name of the party making it is not essential if the defendant knows the amount. The advantage that may be obtained by verification by inquiry from the doctor I do not think warrants the giving of the information.

We then come to the consideration of the purpose of the defendant’s obtaining the physician’s name in order to ascertain from him the facts of his services and what he found. While it might be that the plaintiff could not prevent the doctor, if called by the defendant, from testifying as to what he found and did, it does seem to me that professional ethics would restrain a doctor from disclosing this information to someone hostile to his patient. I therefore think that the aid of the court by way of bill of particulars should not be given to the making of such inquiries.

I think it is well recognized that while we have principles governing the allowance and disallowance of demands for particulars, the granting of the demand is discretionary with the court. State Board of Medical Examiners v. Levin, 10 N. J. Mis. R. 321; 159 Atl. Rep. 305; Paper, &c., Machinery Co. v. Newlin, 101 N. J Eq. 115; 137 Atl. Rep. 314; 49 Corp. Jur. 625.

Considering the matter under the discretionary power of the court, it seems to me that any advantage which may be obtained by the defendant through the eliciting of the names and addresses of the treating physician is largely outweighed by the danger that the plaintiff may be under in disclosing the names of these very important witnesses to the defendant. The dangers to the plaintiff incident to the disclosure are obvious. It is therefore my conclusion that this demand should be denied.

11. This demand asks for itemized statements covering the hospital, doctors, nurses, medical and other items of expense. These, 1 think, should be furnished as asked for, with the exception as to other items of expense beyond expenses in care and treatment.

The defendant is entitled to limit the plaintiff in his proof as to the expenditures. It is not necessary, however, to state what hospital, doctor, nurse or druggist the expenses were incurred with. The general reference should be answered at least to the extent of expenses incurred in the care and treatment of the plaintiff for the injuries sustained.


author: Bodine, J.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOHN DART, Jr., PLAINTIFF IN ERROR.
    Submitted October 14, 1932
    Decided March 3, 1933.
    Before Justices Bodine and Donges.
    Por the plaintiff in error, J ohn C. Reed.

    Por the defendant in error, T. Millet Hand.

   Bodine, J.

The defendant was convicted of assault and battery. The indictment charged the defendant with an atrocious assault and battery.

The defendant sought to justify his acts, as done, in self-defense, and to introduce evidence that his assailant was a violent, quarrelsome and dangerous man, and that his reputation for such disposition was known to him. The exclusion of such testimony was manifest error. The question in controversy was whether the defendant acted in self-defense. Upon that question evidence, which tended to show that the defendant had reasonable cause to apprehend great bodily harm just before the assault, was relevant. Therefore, the general reputation of his assailant as a dangerous and quarrelsome person was competent, especially if this reputation was known to the defendant. Smith v. United States, 161 U. S. 85; Commonwealth v. Tircinski, 189 Mass. 257; 2 L. R. A. (N. S.) 102; 75 N. R. Rep. 261; 2 R. C. L. 568.

It is unnecessary for us now to consider the other assignments of error. The judgment below will be reversed.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ANTHONY REDA, PLAINTIFF IN ERROR.
    Argued October 4, 1932
    Decided March 3, 1933.
    Before Justices Bodine and Donges.
    Por the plaintiff in error, Ward & McGinnis, Benjamin L. Stein (Peter J. McGinnis).

    Por the defendant in error, Nathaniel Kent and John B. Masterion.

   Bodine, J.

The defendant was convicted of the crime of arson. lie, and a number of others, were indicted and tried for the offense. There was no doubt that there was an incendiary burning of the defendant’s dwelling house, but the evidence falls short of implicating him in guilt.

Detectives apparently conducted an examination of certain persons thought to be implicated in the fire. The statements of each of those examined were taken stenographically. When statements were made which seemed to involve the defendant Reda no opportunity was afforded him to deny the implication. The very manner of conducting the examination seems to preclude a suggestion that there was any opportunity afforded him to make a denial, and, therefore, the statements were not evidential against him and without these statements there could have been no conviction.

“It is not sufficient that the statement was made in the presence of defendant against whom it is sought to be used, even though he remained silent, but it is further necessary that the circumstances should have been such as to call for a denial on his part, and to afford him an opportunity to make it.” 16 Corp. Jur. 659.

It is unnecessary to examine the other assignments of error, some of which may not properly be before us. It is manifest that wrong and injury was done to the defendant in the failure of the court to take the case from the injury at the close of the state’s case.

The judgment is reversed.


text:
    THE STATE, EX REL. EDMUND B. HOURIGAN, RELATOR, v. THE TOWNSHIP Of NORTH BERGEN IN THE COUNTY OF HUDSON ET AL., RESPONDENTS. THE STATE, EX REL. OAK SECURITIES COMPANY, RELATOR, v. THE TOWNSHIP OF NORTH BERGEN IN THE COUNTY OF HUDSON ET AL., RESPONDENTS.
    Argued October 5, 1932
    Decided March 6, 1933.
    Before Justices Pakkek and Lloyd.
    Por the relator, Burlce, Sheridan & Hourigan (John Milton, of counsel).
    Por the respondents, Nicholas S. Schloeder and William Sewell.

   Per Curiam.

Writs oi mandamus are applied for under these rules to compel the taxing authorities of North Bergen township to raise the tax assessments sufficiently to pay judgments previously obtained by the relators. The judgments were obtained on March 3d, 1932, and are for $250,923.43 in favor of Hourigan and for $192,823.42 in favor of Oak Securities Company. The judgments not being paid on execution, the present rules were applied for and allowed.

Normally on such a showing the taxing authorities would be required to levy a sufficient tax to raise the moneys but it appears that the “municipal finance commission,” as authorized by chapter 340 of the laws of 1931 (page 830), amended by chapter 236 of the laws of 1932 (page 519), is functioning in the township. Section 352 of the act provides that:

“Whenever the municipal finance commission shall function in any municipality and so long as it shall continue so to do, no action or proceeding of any kind either direct or ancillary, by way of mandamus, or otherwise, shall be brought against such municipality or any public officers for the assessment, levy or collection of taxes by or for such municipality and any and all actions or proceedings therefor shall be and they hereby are stayed; except that first, the Supreme Court or a justice thereof may authorize one or more creditors of such municipality to bring and maintain an action or proceeding therefor in the Supreme Court, which shall be brought for the benefit of themselves and all other creditors of such municipality and in which all other creditors of such municipality shall have the right to intervene and assert their claim and in which all other creditors of such municipality may be made parties in such manner and upon such notice as the Supreme Court shall approve; and except that, second, the municipal finance commission may bring and maintain an action or actions by way of mandamus or any other appropriate proceeding or proceedings for the assessment, levy or collection of taxes by such municipality for the payment of principal and/or interest of the indebtedness of the municipality found to be outstanding as provided in section two hundred and one of this act.”

Counsel for the relators urge that this legislation is unconstitutional as impairing the obligation of contracts and for other reasons, but this question is not properly before us. The commission is a de facto body operating by virtue of a statute presumably valid. Lang v. Bayonne, 74 N. J. L. 455; 68 Atl. Rep. 90. It is not made a party to this proceeding. Its authority, therefore, cannot be determined under these rules.

Even if it were otherwise it is obvious that to grant the writs applied for in this case would be to work great confusion in the financial affairs of the township, and where such condition will supervene the application therefor should be denied. McCormick v. New Brunswick, 89 N. J. L. 117; 97 Atl. Rep. 777.

The rules are discharged.


text:
    EUGENE BROWN, PROSECUTOR, v. ABRAHAM SCHWARTZ, RESPONDENT.
    Submitted October term, 1932
    Decided March 6, 1933.
    Before Justices Parker, Lloyd and Heher.
    For the prosecutor, Cox & Walhurg (Arthur F. Mead, of counsel).
    For the respondent, Henry Hershoff and Herman B. J. Weckstein.

   Per Curiam.

The writ of certiorari was allowed in this case to review an order made by the judge of the District Court of the Second Judicial District of Essex county made on May 20th, 1932, transferring a cause pending therein to the Circuit Court of that county, and directing that the order should be entered nunc pro tunc as of July 30th, 1927.

A summons was issued in the cause in the District Court on June 10th, 1927. On July 23d, 1927, on motion of counsel for the defendant, an order was made by a judge of the Circuit Court of Essex county directing the transfer of the record of the case and all papers filed therein to that court. A counter-claim demanding $1,000 damages was filed by the defendant in the Circuit Court. Several notices of trial of the case in the Circuit Court were given but the case hung fire and was not tried. Thereafter plaintiff’s counsel gave notice in the Circuit Court of a motion to dismiss the counterclaim on the ground, among others, that the Circuit Court had no jurisdiction to entertain it and that the suit had been illegally removed to the Circuit Court, a week later giving notice of an additional motion to set aside the order of July 23d, 1927, transferring the cause from the District Court to the Essex Circuit Court. In the meantime on May 14th, 1932, the counter-claim was filed in the District Court as though the action were still pending in that court and on May 20th, following, the order complained of was made

We have been pointed to no authority and can find none to justify the order of the Circuit Court judge. The attempted transfer of July 23d, 1927, was without legal authority and void. This order being of no effect, the cause was still pending in the District Court when the counter-claim of May 14th, 1932, was filed.

As the law stood when the action was instituted in the District Court, section 1, chapter 120 of the laws of 1925 (page 341), provided that upon the filing of a counter-claim exceeding the jurisdiction of the District Court the cause could be transferred by the District Court judge into the Circuit Court. In 1928, however, this section was amended by chapter 152 (page 308), and the counter-claim justifying such transfer, was limited to liquidated damages. It was so held by Judge Mackay in Tigler v. Fabrics Finishing Corp., 8 N. J. Mis. R. 303; 150 Atl. Rep. 228, and by Judge Eldredge in Toone v. Skorupski, 9 N. J. Mis. R. 381; 154 Atl. Rep. 621, and we agree with their construction of the act. The counter-claim in the present case is undoubtedly for unliquidated damages and could not be properly filed, or if filed, justify the transfer. This being true it follows that the direction that the order be filed nunc pro tunc was likewise without legal effect and toid.

The entire order of transfer is therefore set aside.


text:
    CARMELA BANCONE, ADMINISTRATRIX, ETC., OF JOSEPH BANCONE, DECEASED, APPELLANT, v. LOUIS E. DROVAN, RESPONDENT.
    Submitted January 29, 1932
    Decided March 14, 1933.
    Before Justices Parker and Case.
    For the appellant, J. Glenn Anderson.

    For the respondent (no brief submitted).
   Per Curiam.

This is an appeal from a judgment of nonsuit. The complaint was in two counts. The first claimed in part for use and occupation of the top floor of a house owned by plaintiff’s intestate, pursuant to an alleged “agreement” between said intestate and the defendant (which was denied by the answer) and in part for moneys collected by defendant for rent of the remainder of the house, to the use of plaintiff as claimed. The second count was for use and occupation of the entire premises. The counter-claim, but not the answer, set up an agreement by deceased to sell the property to defendant, which deceased, as alleged, failed to carry out; and that defendant took possession of the premises and expended certain moneys on account of the same.

The evidence at the trial was very meagre. The opening of counsel is not printed, but at its conclusion the court asked plaintiff’s counsel, “what is your understanding of the rule under these circumstances when he expends money on the property when he is in possession under a proposed agreement of sale ?” Counsel claimed it was a tenancy at will. At the end of the colloquy defendant was called as a witness for plaintiff, and was the only witness, with the exception of a real estate man who testified on rental values. Defendant testified that he had agreed to buy the property for $6,500, paid $500 down and took a written receipt. This paper was produced at the request of plaintiff’s counsel who examined on it but did not offer it in evidence. Defendant testified, in answer to a question by counsel for plaintiff, that the paper contained a statement that “final agreement will be made at the office of Judge Albano by both parties.” He further testified that he had more than once asked deceased for a final contract but could never get it; and having taken possession as purchaser under the original arrangement, so remained until May 1st, 1930, paid off a mortgage, paid taxes, repairs, and other current charges, amounting to over $4,000.

It seems unnecessary to decide whether the written receipt is to be considered as in evidence. It was called for by plaintiff’s counsel, inspected and examined on by him, and if not fully within the rule in Convery v. Conger, 53 N. J. L. 468; 22 Atl. Rep. 43, would seem to be evidence under the rule in Ellison v. Cruser, 40 N. J. L. 444, as expounded in Decker v. George W. Smith & Co., 88 Id. 630 (at p. 635); 96 Atl. Rep. 915. However, even without this paper there is uncontradicted evidence that, defendant entered into possession, not under any agreement of tenancy, but under an agreement to purchase which he had always been ready and willing to carry out, and which finally fell to the ground through the fault of the seller. Given this situation, our decisions are clear that the action of use and occupation will not lie. Brewer v. Craig et al., 18 N. J. L. 214. See Van Valkenbergh v. Rahway Bank, 23 Id. 583, 587; Donovan v. Brenning, 79 Id. 202; 74 Atl. Rep. 253; Mason v. Haurand, 79 N. J. L. 375, 377; 75 Atl. Rep. 452.

There was nothing in the evidence to show the relation of landlord and tenant. The nonsuit was right, and the judgment will therefore be affirmed.


author: William H. Kellner

text:
    Essex County Surrogate's Court.
    IN THE MATTER OF THE ESTATE OF WILLIAM H. KELLNER, DECEASED.
    Decided December 27, 1932.
    Proctor for the executors, Nathan H. Berger.

    Proctors for the petitioner Jane Kellner, Braelow & Tepper.

   William H. Kellner

died on July 24tli, 1930. His will, dated June 1st, 1928, and two codicils, each dated June 22d, 1929, were probated by the surrogate of Essex county on September 10th, 1930, following the usual informal probate practice in cases not referred to the Orphans Court by statute. At that time, Jane Kellner, a granddaughter of the decedent, was an infant. She became of age on March 26th, 1932. On August 13th, 1932, she filed a petition with the surrogate praying that the decree on probate, dated September 10th, 1930, be set aside. An order to show cause based on this petition was signed by the surrogate. On its return day, the proctor for the executors, under the will admitted to probate, questioned the juirsdiction of the surrogate in the premises. By agreement of all parties to the proceedings, it was stipulated that this question of jurisdiction should first be settled before any testimony or evidence might be received on the rule to show cause.

In 1916 the Court of Errors and Appeals of New Jersejr, in an opinion by Chancellor Walker, in the case of Mellor v. Kaighn, 89 N. J. L. 543; 99 Atl. Rep. 207, held that the jurisdiction of the surrogate ended upon the granting of a decree for probate of a will and that he had no authority to open or vacate or change that decree. In 1917, the legislature passed the following act (Pamph. L. 1917, ch. 133):

A supplement to “An act respecting the Orphans Court, and relating to the powers and duties of the ordinary, and the Orphans Court and surrogates.” (Rev. 1898.)

1. The surrogates of the several counties of this state are hereby given the power and authority to open, vacate, modify or set aside or to enter as of a former time, a decree or order made in their court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers and authority conferred by this act must be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers.

2. This act shall take effect immediately.

The petition to vacate was filed and the rule to show cause was granted pursuant to the authority given in the above legislative enactment.

Since the 1917 enactment there have only been two decisions of the higher courts in which it is mentioned. In McCormack v. Burns (1918), 89 N. J. Eq. 274; 105 Atl. Rep. 70, the bill in equity prayed that a decree of a surrogate admitting to probate an alleged will might be set aside on the ground that the document was not, in fact, the last will of decedent, but was contrived by the defendant in fraud of the decedent and the complainants. Vice-Chancellor Lewis dismissed the bill in equity, holding that a Court of Chancery has no jurisdiction to try a case involving fraud in the procurement of a will. In the course of his opinion (pages 276, 277) he refers specifically to the act of 1917 and then says:

“It may be that under this act the complainants, if they succeed in establishing fraud in the procurement of this will, might find their remedy; but I am not' called upon to pass on the question of whether, in this case, they can take advantage of that act, or whether it would be ocnstitutional to allow them to do so.”

Subsequently, in 1921, Vice-Ordinary Learning decided the case of In re Frank’s Will, 93 N. J. Eq. 405; 114 Atl. Rep. 857. Here the surrogate of Camden county had, on November 4th, 1918, admitted to probate the will of Prank and issued letters of administration cum testamento annexo to Prank’s mother, on the representation that the decedent died a resident of Camden county. Ilis widow, Esther, on November 26th, 1918, petitioned the said surrogate to revoke the decree of probate on the ground that the decedent was actually a resident of Pennsylvania and that the representation by his mother to the contrary was false. An order was made by the surrogate directing all interested persons to appear for a hearing on the petition. A motion to dismiss the petition was denied by the surrogate, and, after a hearing, he signed an order revoking and setting aside the original decree of probate. An appeal was taken from this order to the Orphans Court where it was affirmed, and the appeal was then carried to the Prerogative Court. Vice-Ordinary Learning says:

“The single question which has been presented to this court for consideration herein is whether an appeal could be taken to the Orphans Court from the order of the surrogate revoking the order of probate and the letters issued by him thereon. The Orphans Court held, and respondent in this appeal contends, that any appeal from that order should be to the Prerogative Court.

“Prior to the act of March 26th, 1917 (Pamph. L. 1917, p. 293), the surrogate could not entertain a petition to vacate an order of probate which had been made by him. Mellor v. Kaighn, 89 N. J. L. 543; 99 Atl. Rep. 207. It is here conceded that that act conferred that power.”

In the above case the vice-ordinary held that an appeal from such an order made by the surrogate should be made directly to the Prerogative Court.

In addition to the above cases, this statute was involved in cases before the Surrogate’s Court, in which opinions were filed. In the case of In re Hunter, 40 N. J. L. J. 227, the petition alleged that letters of administration had been issued to an administrator who falsely represented to the surrogate that petitioner had renounced her right to such administration and the petition prayed for a revocation of the decree by which such letters of administration had been issued. Surrogate Sticlcel of Essex county, in his opinion, said:

“The act before quoted, is almost an exact copy of the New York law on this subject, and was evidently designed to give to the surrogate the power which the Court of Errors and Appeals, in Kaighn v. Mellor had found the surrogate had not, till then, possessed, and to provide an inexpensive and summary method of review, where the decree of the surrogate had been entered by mistake, or secured by fraud. That was the purpose of the act, as shown by the statement attached to Assembly Bill No. 51, the bill which, upon being approved by the legislature and governor, became the act above quoted.” In the case of In re Bradford (1919), 43 N. J. L. J. 14, the surrogate had issued letters of administration on July 20th, 1917, on the estate of Bradford who had died on March 27th, 1916. On August 5th, 1919, a petition was filed with the surrogate, praying a revocation of the letters of administration on the ground that administration had been granted upon a false representation as to the domicile of the decedent.

Surrogate Isherwood of Essex county said:

“A consideration of the cases above cited (referring to the New York cases), is convincing that, for the purposes enumerated therein, the act of 1917 confers upon the Surrogate’s Court all the powers of a court of general jurisdiction, and it is too well settled to require the citation of authorities that a court of general jurisdiction may revoke its own decrees, made where it was without jurisdiction over the subject-matter of the proceedings before it.” Githens v. Goodwin, 32 N. J. Eq. 286; Trimmer v. Adams, 18 Id. 505; In re Isaac Lawrence., 7 Id. 215.

íjí íJí %

“Erom what has gone before, the conclusion is irresistible that the act of 1917 confers upon the surrogate all of the powers of a court of general jurisdiction for the purposes enumerated in that statute * *

In 1930, the present surrogate of Essex county, decided in the case of In re Catherine Crociana (not reported), that administration granted to one who falsely alleged himself to be the husband of the decedent should be set aside upon petition of a brother of the decedent. The surrogate there acted under the authority of the act of 1917, which he held was constitutional.

The proctor for the executors insists that the statute of 1917 is unconstitutional. In the early history of New Jersey, the surrogate was a deputy of the ordinary and exercised "general probate jurisdiction. In 1784 the legislature passed an act providing for one surrogate or deputy for each county of the state and also established a new county court, called the Orphans Court, which, among other powers, was vested with certain of the powers previously exercised by the surrogate, such as hearing and deciding disputes about the validity of wills and rights of administration. In re Coursen’s Will, 4 N. J. Eq. 410, 414. At that time, the statute deprived the surrogate of some of his jurisdiction. There was no reference to surrogates in the first constitution of our state, adopted in 1776, although the governor was therein declared to be “ordinary and surrogate general.” The constitution of 1844, however, specifically made the surrogates of counties constitutional officers (constitution, article 7, paragraph 2, section 6), but it did not specify the duties or the powers of the surrogate. It did change his former status of deputy to the ordinary and made him an independent officer, whose duties are prescribed by the legislature. His powers and duties are now devolved and provided for in the present Orphans Court act (3 Comp. Stat., p. 3809), and supplements thereto. In Mellor v. Kaighn, supra, the court sustains the above statements but found that the legislature had not granted to the surrogate the authority or power to set aside a decree of his court. The court there held that the Surrogate’s Court at that time was not one of general jurisdiction but was an inferior tribunal of special jurisdiction. In 1917, the act (chapter 133) under which the petition in this case was filed, was passed as a supplement to the Orphans Court act. It specifically provides that the surrogate is given the power and authority to open, vacate, modify or set aside or to enter as of a former time, a decree or order made in his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. It further provides that the powers and authority conferred by the act must be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers. It thus appears that the act to that extent places the Surrogate’s Court upon a par with other courts of general jurisdiction. Section 6 of the constitution of 1844 authorizes the legislature to establish, alter or abolish inferior courts of the state, which certainly includes the authority to enlarge or diminish the powers of any such inferior court.

The act of 1917 was modeled after a similar act in New York. (Section 2490, subdivision 6 of New York Code of Civil Procedure, formerly section 2481, subdivision 6 of the code, now section 20 of the Surrogate’s Court act.) The courts oí New York have also held, as in Mellor v. Kaighn, supra, that the Surrogate’s Court is a tribunal of special and limited jurisdiction which can exercise only the powers prescribed by statute and such incidental powers as are requisite to the execution of the powers expressly given. Riggs v. Cragg, 89 N. Y. 480, 488; McNulty v. Hurd, 72 N. Y. 518, 520. Yet the courts of that state have also held that the statute, from which our 1917 statute is copied, confers full power and authority upon the surrogate for cause to vacate, revoke or alter a decree made in his court. Costello v. Costello, 137 N. Y. Supp. 132; In re Henderson, 157 N. Y. 423; In re Severance, 106 N. Y. Misc. 710; In re Flynn, 136 N. Y. 287; In re Coogan, 59 N. Y. Supp. 111; affirmed, 162 N. Y. 613; In re Underhill, 117 N. Y. 471. It is presumed that when our legislature enacts a provision following a statute of another state in which the language of that statute has received judicial construction, it intended such judicial construction to be the true interpretation of the words of the act so adopted. Neilson v. Russell, 76 N. J. L. 655; 71 Atl. Rep. 286; Rulkowsky v. Bozza, 77 N. J. L. 724; 73 Atl. Rep. 502; Clay v. Edwards, 84 N. J. L. 221; 86 Atl. Rep. 548; Hopper v. Edwards, 88 N. J. L. 471; 96 Atl. Rep. 667; In re Christies Estate, 87 N. J. Eq. 303; 101 Atl. Rep. 64; Bugbee v. Van Cleve, 99 N. J. Eq. 825; 134 Atl. Rep. 646.

The powers and authority exercised by the surrogate as well as the Orphans Court, are not determined by the constitution; the legislature, in its discretion and wisdom, may add to, or diminish, the powers of either of these courts at any time. It does not contravene the terms of the constitution of 1844 if the legislature grants to the surrogate the power to open, modify, vacate or set aside a decree or order made by him for good cause, such as “fraud, newly discovered evidence, clerical errors or other sufficient cause.”

It is also urged that the provisions of the statute of 1917 conflict with the provisions of the Orphans Court act which provide that only that court shall hear and decide disputes respecting the existence of a will. This is a misconception of the purpose of these two acts. The 1917 statute expressly grants to the surrogate the authority to vacate, open, modify or set aside a decree of his court or to grant a new hearing “for fraud, newly discovered evidence, clerical error or other sufficient cause.” It does not authorize the surrogate to settle “a dispute respecting the existence of a will.” But it does grant to him the right to open, vacate or set aside a decree obtained in his court and grant a new hearing for fraud, newly discovered evidence, clerical error or other sufficient cause. Thus if it appeared that his decree had been entered as a result of fraud or error, he may set aside that decree. If then a dispute arises as to the existence of the will, the surrogate would be compelled to issue the necessary citations to bring on that dispute for hearing and decision by the Orphans Court.

It is also urged that, in view of the fact that the time stipulated in the Orphans Court act for an appeal to the Orphans Court from the decree of the surrogate has long since expired, the surrogate now lacks any authority to open or set aside his decree. This again is founded upon a misconception of the purpose of the act of 1917 and of section 202 of the Orphans Court act. The provisions of the act of 1917 relate solely to the right of the surrogate to open, vacate and set aside his former decree for good cause as shown in the statute. The right of appeal, provided in section 202 of the Orphans Court act, reserves to an interested party the right to a hearing as to the existence of a will or as to a contested administration. The limitations of time for an appeal from the surrogate’s decree to the Orphans Court have little bearing upon the right, under the 1917 statute, of the surrogate to correct his decree on a showing of fraud, newly discovered evidence, clerical error or other sufficient cause. The probate of a will in common form, according to our practice in New Jersey, is in the nature of an ex parte proceeding. Ho notice is required to be given to heirs or beneficiaries; the will is merely offered for probate by the executor and the witness’ proofs are taken by simple affidavit.

The form of simple affidavit used in common probate in Essex county is as follows:

“State of New Jersey, County of Essex, ss.

One of the witnesses to the annexed writing, purporting to be the last will and testament of......, the testator therein named, deceased, being duly sworn on ... oath, says that .... saw the testator sign and seal the said annexed writing, and heard .... publish, pronounce and declare the same as and for . . . last will and testament.

That at the time of the doing thereof the said testator was of sound and disposing mind, memory and understanding, as far as this deponent knows and verily believes; that ......, the other subscribing witness thereto, .....present at the same time with this deponent when the said will was signed by the said testator and by .... published and declared as and for .... last will and testament as aforesaid; and that the said ......and deponent subscribed their names to said will as witnesses in the presence of said testator and of each other, at the request of the said testator.

Sworn........ 193. , before me,

Special Probate Clerk.”

It will be noticed that the witness therein says that he saw the testator sign the will and heard him publish and declare it as his last will and that at the time of the execution of the will the testator was of sound and disposing mind, so far as the witness knows, and that the other subscribing witness was present at the same time with deponent when the will was signed and published by the testator and that the witnesses signed their names as witnesses in the presence of the testator and each other, at the request of the testator.

If a fraud is thereby perpetrated upon the surrogate, it would seem from the wording of the 1917 statute, that ho has authority at any time to open and set aside his decree. No case in New Jersey except In re Bradford, 43 N. J. L. J. 14, has yet been decided upon this specific point. In New York, however, it has been held under the similar statute, that the surrogate’s power and authority to reopen and set aside a decree is not limited by the time limitation for an appeal. In re Henderson, supra; In re Flynn, supra; In re Severance, supra; In re Morgan, 215 N. Y. 703. In the New Jersey case of In re Bradford, supra, Subrogate Isherwood held that no laches being proven, the delay of two years in making the petition to open and set aside his decree was not fatal. In the case of McCormack v. Burns, supra; 105 Atl. Rep. 70, in which Vice-Chancellor Lewis declines to pass upon the efficacy or constitutionality of the 1917 act and holds that equity will not entertain a ease of fraud in the procurement of a will, he says:

“If the will should be probated in the Prerogative Court, probate in solemn form may be allowed and the probate set aside on sufficient cause being shown. This may be done on the Prerogative Court, even though years may have elapsed since the will was admitted to probate in common form. But this is not true where the will is admitted to probate by the surrogate.”

It would seem from the wording of the 1917 statute that the surrogate now has similar power and authority to set aside his decree of probate in common form where sufficient cause is shown.

In the case In re Van Wagoner’s Estate, 97 Atl. Rep. 893, Poster, as vice-ordinary, considered an appeal from the Orphans Court involving its decree permitting an executor’s final accounting to be opened thirty-one years after its entry to correct an error therein. He cites section 27 of the Orphans Court act wherein it is provided that a decree on settlement of account is conclusive, “excepting * * * in cases where a party applying for a resettlement shall prove some fraud or mistake therein, to the satisfaction of the Orphans Court.” He then says (at p. 895) :

“And it has been held that by virtue of this provision, the Orphans Court has power to correct mistakes of law as well as mistakes of fact. Davis v. Combs, 38 N. J. Eq. 473; 39 Id. 336; Pyatt v. Pyatt, 44 Id. 491; 15 Atl. Rep. 491; Liddell v. McVickar, 11 N. J. L. 44; Jackson v. Reynolds, 39 N. J. Eq. 313. The application to open an account in case of alleged fraud or mistake is one addressed to the discretion and must be proved to the satisfaction of the court. In re Baker, 61 Id. 592; 47 Atl. Rep. 1046.”

The very purpose of the act of 1917 is to permit the surrogate to correct a decree made by him where “fraud, newly discovered evidence, clerical mistake or other sufficient cause” require such a correction in the attainment of justice. As above stated, probate in common form is ex parte; the proceedings are informal and often without the aid of counsel; it lacks the benefit of cross-examination in the solemnity of a regular court room which impresses witnesses and tends to extract the full truth of the matter. A court of general jurisdiction, where trials are conducted in a solemn court room, with aid of counsel and subject to rigorous cross-examination, has inherent power at any time to open, modify, vacate and correct its decree in the interest of justice where fraud, newly discovered evidence or manifest error is found by the court. If this be true of a court wherein all possible safeguards are thrown around the litigants, it is all the more reasonable to assume that in the case of a surrogate’s decree, the legislature intended to give, and did give by the act of 1917, to the surrogate the necessary power and authority to correct error in his decree for good and sufficient cause shown.

The executors also urge that the surrogate has lost jurisdiction in this case because the estate of this decedent has been before the Orphans Court on an accounting, which accounting was approved and commissions and fees allowed thereon. It is evident that the question now presented before the surrogate, namely, fraud in the procurement of the probate of the will, could not have been before the Orphans Court on the account. In that proceeding, the Orphans Court considers merely the correctness of the account. If the will was probated in the common form as a result of fraud perpetrated upon the surrogate, and the surrogate, acting under the act of 1917, should set aside the probate, the existence of the will would then be determined by the Orphans Court, in case of contest. If it should decide against the existence of the will and enter its decree accordingly, then, under section 127 of the Orphans Court act, it has ample power and authority to rectify any error, mistake or confusion caused by its former decree on the accounting.

The executors also urge that chapter 133 of the laws of 1917 has been repealed by the enactment of chapter 370 of the laws of 1931. This latter act merely added to section 13 of the Orphans Court act referring to the issuance by the surrogate of citations in certain cases so that the matters in controversy might be determined by the Orphans Court, the following words:

“Provided, that where a caveat has been filed against the probate of any will, the caveator shall cause citations to be issued thereon and bring the same on for hearing before the Orphans Court within six months from the date of filing said caveat; otherwise the surrogate shall and is hereby empowered to probate said will.”

It is clear that the only purpose of the legislature in the enactment of this amendment to section 13 of the Orphans Court act was to expedite the hearing of a contested will case. If the legislature had intended to repeal the act of 1917, it would have done so in definite language. Repeal by implication is not favored, and, where the later statute is not necessarily repugnant, the intent to repeal is not implied. Terrone v. Harrison, 87 N. J. L. 541; 94 Atl. Rep. 600; Winne v. Casale, 99 N. J. L. 345; 123 Atl. Rep. 533; affirmed, 100 N. J. L. 291; 126 Atl. Rep. 324; First National Bank v. Bianchi, 106 N. J. Eq. 333; 150 Atl. Rep. 774; Adams v. Plainfield, 161 N. J. L. 282; 161 Atl. Rep. 647. And it has been held that nothing short of an irreconcilable conflict between two statutes works a repeal by implication. Title Guarantee Land Co. v. Paterson, 76 N. J. Eq. 539; 74 Atl. Rep. 794; State v. Garris, 98 N. J. L. 608; 121 Atl. Rep. 292. It has been also held in numerous cases that where both acts can, by reasonable construction, be upheld, the latter act will not operate as a repeal of the former. Britton v. Blake, 35 N. J. L. 208; affirmed, 36 Id. 442; Trustees, &c., v. Trenton, 30 N. J. Fq. 618; affirmed, Ibid. 667; Winne v. Gasale, supra.

The executors also urge that the petition does not sufficiently allege fraud in its other allegations and should therefore be dismissed. Their proctor, at the hearing, entered a special appearance for the purpose of challenging the jurisdiction of the surrogate. In his brief, he specifically attacks the petition, claiming that its allegations are insufficient to support it. This must be considered as a demurrer or a motion addressed to the pleadings, rather than to the jurisdiction. As such it amounts to a general appearance in the cause and the executors have thereby waived objections to the jurisdiction of the surrogate to hear the matter. Bird v. Moth-K-L Co., 1 N. J. Mis. R. 251; 140 Atl. Rep. 13; Sayre and Fisher Co. v. Griefen, 72 N. J. L. 1; 60 Atl. Rep. 513; Albert v. Clarendon, 53 N. J. Eq. 623; 23 Atl. Rep. 8.

The authority of the surrogate under the 1917 statute to set aside his decree must be based upon “fraud, newly discovered evidence, clerical error or other sufficient cause.” He has no jurisdiction to determine the “existence of a will,” this being reserved by statute to the Orphans Court. In the petition filed in this matter, there is no allegation of clerical error, and the claim of the petitioner must rest upon the grounds of fraud or newly discovered evidence. In order to confer jurisdiction upon the surrogate, such fraud or newly discovered evidence must relate to the act of probate and not to the existence of a will. In short, it is essentially a fraud upon the surrogate which establishes his authority to act under this statute in this ease. Our consideration of the petition must therefore be limited to this one question. The paragraphs of the petition which generally allege lack of mental capacity either in the procurement of a will, or an undue influence and improper execution of a will, all attack the “existence of a will” which comes within the jurisdiction of the Orphans Court, rather than that of the surrogate. The eighteenth paragraph of the petition alleges that the affidavits filed in the common probate of this will were untrue in fact in that the decedent did not know the contents of this will; that he believed the contents to be different; that he did not request the witnesses to sign as such; that there was no publication by the testator and that the witnesses did not sign in the presence of each other. If the witnesses falsely swore concerning the necessary requisites to the execution of the will, then a fraud may have been perpetrated upon the surrogate in the probate of this will. If, however, they told the truth as to their recollection of the events attending the execution of the will, then they committed no such fraud, even though others might testify to the contrary. It seems to this court that this paragraph sufficiently raises the question of fraud upon the surrogate to warrant the taking of evidence as to the truth of the matters alleged therein, especially in so far as it relates to the probate of the will. It does not seem material to the limited issue before this court to inquire into the belief of the testator as to the contents of the will; this might be very pertinent on an appeal to the Orphans Court but has little bearing upon the question of fraud upon the surrogate. As to the failure of the witnesses to sign in the presence of each other, the question has not been decided in New Jersey by its highest court. Clark v. Clark, 64 N. J. Eq. 361; 52 Atl. Rep, 225.

Andrew J. Whinery,

Surrogate.