author: Per Curiam:.

text:
    ANGELINA KOCH DOWNS, PROSECUTRIX, v. BOARD OF EDUCATION OF THE DISTRICT OF HOBOKEN AND STATE BOARD OF EDUCATION, DEFENDANTS. RAI DRIESEN FLECHTNER, PROSECUTRIX, v. BOARD OF EDUCATION OF THE DISTRICT OF HOBOKEN AND STATE BOARD OF EDUCATION, DEFENDANTS. BOARD OF EDUCATION OF THE DISTRICT OF HOBOKEN. PROSECUTOR, v. ANGELINA KOCH DOWNS AND THE STATE BOARD OF EDUCATION, DEFENDANTS. BOARD OF EDUCATION OF THE DISTRICT OF HOBOKEN, PROSECUTOR, v. RAI DREISEN FLECHTNER AND THE STATE BOARD OF EDUCATION, DEFENDANTS.
    Argued October 3, 1933
    Decided March 23, 1934.

      Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    For Angelina Koch Downs and Bai Driesen Flechtner, Arthur T. Vanderbilt (Nathan L. Jacobs, on the brief).
    For the board of education of Hoboken, Joseph Greenberg.

   Per Curiam:.

These writs taken together bring up for review the action of the state board of education in affirming the dismissal by the school board of Hoboken of certain school teachers, the action of the state board in ordering payment of certain unpaid salary to them, and the action of the state board in ordering the school board of Hoboken to dismiss certain non-tenure teachers and to replace them with tenure teachers.

It appears that there were nine elementary schools in the school district of Hoboken with six thousand seven hundred and four pupils in attendance in 1928. From that time forward until 1932 there was a marked decrease in attendance from year to year so that in 1932 there were only five thousand four hundred and thirty-one pupils. During the latter part of this period there were five vacant classrooms and nine hundred and forty-three vacant seats. This diminution in the number of pupils was a natural one, due to the loss of population. During this period the decrease in the number of teachers was only nine. In 1931 due to a bank failure, inability to collect taxes and other causes, the city of Hoboken, which comprises the school district of Hoboken, found it difficult to finance its schools, difficult at first and almost if not impossible thereafter to borrow money by the use of all available credit of the city. From time to time the president of the board of education made public reference to economic problems facing the board. He referred to the fact that many of the teachers were married women, some of whom did not live in the city, and that condition he vigorously criticised. On June 27th, 1932, a second conference was held between the bankers and the city officials in an effort to raise money, but that effort was futile in view of the position taken by the bankers that the cost of operating the schools must be reduced. As a result of this conference the city commissioners met with the board of education and laid before them the situation. The result was that it was decided to close two schools. To carry out this decision the board met on June 29th, 1932. At that meeting a report was made by the superintendent of schools that he had made certain transfers of teachers and other employes from and to various schools, subject to the approval of the board. That approval was unanimously given. By that transfer twenty-six teachers represented by the prosecutrix Angelina Koch Downs were transferred to schools Nos. 4 and 7. Later at the same meeting the board by resolution reciting in effect the decreased attendance, the excessive per capita cost of pupils, the necessity of economizing, and that the services of so large a number of teachers were no longer required, unanimously resolved that schools Nos. 4 and 7 be closed on June 30th at the close of the school session, and that the pupils theretofore attending those schools be transferred to other schools, and that thirty-four named teachers (including the twenty-six heretofore referred to and eight others represented by prosecutrix Bai Driesen Mechtner) be dismissed as of June 30th, 1932, and abolished the offices of certain other employes.

All of the dismissed teachers here involved (namely, the twenty-six transferred to schools Nos. 4 and 7, and the eight who had long served in Nos. 4 and 7) have served for more than three years, and are therefore under the protection of the Tenure of Office act.

An appeal was taken by the named teachers to the commissioner of education. That official concluded that the transfer of the twenty-six teachers from various schools to Nos. 4 and 7 was illegal in that it had for its purpose the placing them in a situation which would appear to legalize the termination of their services. As to the eight teachers who had served in schools Nos. 4 and 7 prior to June 29th, 1932, the commissioner held that their services were legally terminated.

An appeal was then taken to the state board of education and that board held that the termination of the services of the thirty-four teachers was legal, subject to the board assigning seven of the teachers to positions held by teachers not protected by tenure, and that the teachers who had not been, paid the balance of their salaries for the school year were-entitled to such payment; in other words, the decision of the commissioner, so far as it related to the reinstatement of' the twenty-six teachers, was reversed, and the termination of the services of the eight teachers and the payment of the balance of salary for the year of all the teachers, was affirmed..

We think that the decision of the state board of education, should not be disturbed.

The powers of boards of education in the management and control of the school districts are broad. They are invested with the supervision, control and management of the public-schools. They may make, amend and repeal rules, regulations, and by-laws not inconsistent with the school law or with the rules and regulations of the state board of education,, and, among other things, may employ and discharge teachers. By section 68 of the School law (Comp. Stat., p. 4744) they are authorized by a majority vote of the whole number of' its members to appoint, transfer or dismiss teachers. These powers are limited as to the employment and discharge of' teachers only to the extent provided by the Teachers’ Tenure-law. Pamph. L. 1909, ch. 243. And it will be noticed that, that act declares, among other things, that “nothing herein-contained shall be held to limit the right of any school board to reduce the number of principals or teachers employed in any school district when such reduction shall be due to a. natural diminution of the number of pupils in said school district.”

In general the right to transfer a teacher seems to rest, therefore, in the sound discretion of the board of education,, and it seems to us that the mere fact that the twenty-six teachers were transferred from their various schools to-schools Fos. 4 and 7, which at the same meeting the board of education determined to close, did not render the transfers-. illegal. In general the board had a right to dispense with the services of such number of teachers selected from the entire school district as it in good faith deemed necessary to effect the economy which its financial condition demanded, and whose services were no longer necessary because of the diminution of the number of pupils.

It is further contended that what was done was in abuse ■of the powers and discretion of the board of education and was a gross discrimination, and this contention seems to rest upon the fact that the teachers dismissed wore either married women or non-resident women, or both, and much is made of the expressed feelings of the president of the board with respect to this situation.

It is true that he expressed himself forcibly. It is true that he wrote letters to the teachers in which he expressed his views. It is also true that he made a survey and reported the result of his survey to the board. But it is also true that the board did not authorize such survey and took no action on ■such report with regard to non-resident and married women teachers, and that it did not authorize the president to communicate with the teachers nor to do anything in that regard. The board may or may not have been influenced by his views. Upon that we will not speculate. The question is does this action of the president affect the legality of the transfers. We think not. We are satisfied from this record that the purpose of the board was to effect economy and to terminate the services of a number of teachers no longer necessary because of the diminution of pupils, and we cannot say, even though they dismissed married or non-resident women teachers, giving preference in continued employment to residents ■of the school district and to those who would normally be dependent upon themselves for livelihood, that such action was an abuse of discretion or evidence of bad faith. The board appears to us to have acted within the authority conferred upon it by law, and its action involved the exercise of discretion, and in the absence of clear abuse, its action ought not to be disturbed; so we conclude that the transfer of the twenty-six teachers to schools Uos. 4 and 7 was lawful and that the board was justified in dismissing the teachers as it did, subject to the reservation imposed by the state board.

It appears, however, that at the time of the termination of the teachers’ services there were in the employ of the school board seven teachers who had not acquired tenure. Now, in the recent case of Seidel v. Board of Education of Ventnor City, 110 N. J. L. 31; 164 Atl. Rep. 901, it was held that, “granting that apart from the statute, a school board may, in the interest of economy, reduce the number of teachers, the protection afforded by the statute (Teachers’ Tenure act, Pamph. L. 1909, ch. 243) would be little more than a gesture if such board would be held entitled to make that reduction by selecting for discharge teachers exempt by law therefrom, and retaining the non-exempt. If such reduction is to be made at all, and a place remains which the exempt teacher1 is qualified to fill, such teacher is entitled to that place as against the retention of a teacher not protected by the statute.”

That decision seems to apply to this case and to justify the action of the state board of education in requiring the Hoboken board to.assign seven of such discharged teachers to the positions held by teachers not protected by tenure.

The remaining question relates to the claim by the teachers that they are entitled to the balance of their salary for the year 1931-32. Both the commissioner of education and the state board of education concurred in the view that all of the teachers who had not received full salary since September 1st, 1931, were entitled to the balance, less deductions due to the teachers’ pension and annuity fund.

We think that was right. The teachers were under contract for a year’s services and those services ran from September 1st to the following June 30th. They had performed their work and we see no reason why they are not entitled to their compensation.

The result is that the judgment of the state board will be affirmed. No costs will be allowed any party hereto as against any other party.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, EX REL. GEORGE H. SNYDER, FRANK COSTA AND STANLEY-FABIAN CORPORATION, A CORPORATION, PROSECUTORS, v. STEPHEN T. ZABRISKIE, SUPERINTENDENT OF BUILDINGS OF THE VILLAGE OF RIDGEWOOD, MAX GOODMAN AND FRANK GERSTEN, RESPONDENTS.
    Submitted October 14, 1933
    Decided March 23, 1934.
    Before Brogan, Chief Justice, and Justices Trenohard and Heher.
    For the prosecutors, Colie ■& Colie and Jerome J. Dunn {Runyon Colie, of counsel).
    For the respondent Stephen T. Zabriskie, Thomas L. Zimmerman, Jr.

    For the respondents Max Goodman and Frank Gersten, William, Harris.

   Per Curiam.

This writ of certiorari brings up for review the grant of a building permit by the superintendent of buildings of the village of Ridgewood to Max Goodman and Frank Gersten for the alteration and renovation of a moving picture theatre building known as the “Playhouse” in Ridgewood.

It appears that the Playhouse building in its present condition has been occupied as a moving picture theatre since 1913. The prosecutor Stanley-Fabian Corporation had a lease on the building which expired May 1st, 1933, and the prosecutor Frank Costa was the manager, and is at present the manager of another motion picture theatre which is now being operated in the village by the Stanley-Fabian Corporation, known as the “Warner Brothers Theatre.”

The Playhouse theatre was operated from the time of its erection regularly until a few months before such lease expired, when the Stanley-Fabian Corporation, which was operating the new theatre at the time, closed it. On the expiration of the lease a new lease was arranged by the owners to Goodman and Gersten who applied for and obtained this permit for alterations and renovations.

The building ordinance of Eidgewood does not specifically cover or refer to a motion picture theatre, but there is a provision in the ordinance which provides that the design and construction of any building that is not described in the ordinance shall be carried out in such manner as may be directed by the superintendent of buildings in general conformity with the recognized standards or practice in such cases.

It is agreed that the theatre building when altered must be in general conformity with recognized standards or practice in such cases, and the power of the village to regulate the alterations and renovations in question is not in dispute.

The superintendent of buildings designated the code of the city of New York as a code which set forth the recognized standards and practice. The permit in question was authorized by the superintendent of buildings on the recommendation of the building committee of the village, after three public hearings attended by the building committee of the village, the acting fire chief, the superintendent of buildings, and interested parties. The building committee consisted of a consulting engineer and architect and apparently of two experienced builders whose expert qualifications seem not in dispute, and at their suggestion, and as a result of other suggestions, numerous changes were made in the original plans and specifications to make the building safe for public use.

The testimony of members of the building committee and of the superintendent of buildings was to the effect that the plans and specifications as finally adopted, and for which the permit was granted, conformed to the recognized standards and practice and conformed to the code of the city of New York in so far as it applied to an old building that was being reconstructed.

The prosecutors’ first point is that the building ordinance of the village requires that this building when altered be in general conformity with recognized standards or practice, and their contention is that it does not so conform. We think that the weight of the testimony is that it does.

The next and last point is that the village authorities have erroneously and illegally attempted to substitute section 521, article 25 of the New York building code in place of the provisions of the building ordinance of the village of itidgewood.

We think they have not. The building ordinance, as we have pointed out, requires that the design and construction shall be carried out in such manner as may be directed by the superintendent of buildings in general conformity with recognized standards or practice in such cases.

As we have indicated, we think the weight of the testimony is that that was done in this case, and the fact that the plans and specifications also conformed to the code of the city of New York, as the testimony indicated that they did, in so far as that code applied to an old building that is being reconstructed, is of no moment, as it seems to us, and certainly ought not to result in the court’s interference with the grant of this permit in the circumstances of this case, where it appears that the authorities acted conscientiously and in good faith after full hearings.

The writ will be dismissed, with costs.


text:
    GRACE E. CLARK, PLAINTIFF-RESPONDENT, v. HENRY J. SEARS, DEFENDANT, AND GEORGE H. WEISS, DEFENDANT-APPELLANT.
    Submitted October term, 1933
    Decided March 23, 1934.
    Before Brogan, Chief Justice, and Justices Trenchard and Heher.
    For the appellant, Raymond Dawson.

    For the respondent, Edward A. Marhley.

   Per Curiam.

This is an appeal from a judgment of the Union County Court of Common Pleas, in favor of plaintiff, in an action to recover damages for injuries said to have been tortiously inflicted.

The single question raised is the propriety of the trial judge’s admission in evidence of X-ray photographs purporting to show the injured parts of respondent’s body. While appellant urges that the “question is important because the verdict is so unjust as to liability and also as to amount, and because of the fact that plaintiffs were endeavoring to go beyond the scope of the complaint and the bill of particulars as to the extent of the injuries,” the only point argued is that there “was not sufficient proof of the pictures.”

But this ground was not presented to the trial judge, when the objection was interposed. In fact, no ground of objection was stated at the trial, and, consequently, none can be urged here. The definite ground of objection must be pointed out to give efficacy to the exception. Semkin v. Hollander, 82 N. J. L. 485; 81 Atl. Rep. 980; Prout v. Prout, 82 N. J. L. 537; 81 Atl. Rep. 757; Garrison v. Newark Call Printing, &c., Co., 87 N. J. L. 217; 92 Atl. Rep. 590.

Furthermore, we find the criticism of the ruling to be utterly devoid of merit. They were made under the direction of the hospital rontgenologist. They were actually made by one of his assistants, but he was able to identify them. They were marked for identification purposes, lie examined the photographs the following day, and discussed information disclosed by them with plaintiff’s physician. The usual hospital routine for taking the photographs was followed. The physician and surgeon in attendance testified that the photographs were taken by his direction and in his presence. They were taken immediately after the accident, and after he had seen plaintiff. The plates were promptly developed, and were examined by the witness and the hospital rontgenologist, who conferred to determine the nature and extent of the injuries. The proof met the prescribed standard. Robinson v. Payne, 99 N. J. L. 135, 143; 122 Atl. Rep. 882; Greco v. Schmidt, 101 N. J. L. 554; 129 Atl. Rep. 146; Joy v. Flax, 101 N. J. L. 43; 127 Atl. Rep. 596; Rickel v. Stockman, 111 N. J. L. 294; 168 Atl. Rep. 467.

Judgment affirmed.


author: William E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JAMES F. LEVERING, PETITIONER, v. BENJAMIN R. FOX, RESPONDENT.
    Decided December 29, 1933.
    For the petitioner, Morris Bloom.

      Benjamin B. Fox, pro se.

   This is a claim coming on for determination under the provisions of the New Jersey Workmen’s Compensation act in which a petition was filed on April 29th, 1933. The case came on for hearing in Atlantic City on December 14th, 1933. At this hearing, the respondent, Benjamin R. Fox, appeared in person, and the petitioner was represented by Morris Bloom.

From the petition as filed in this claim and the record as produced at the hearing, it appears that the petitioner was in the employ of the respondent on July 16th, 1923, at a wage of $100 a week. On the day indicated, he met with severe injury as the result of an auomobile accident. This accident caused concussion of the brain with contusions and lacerations, together with a fracture of the skull and injury to the hip. Compensation was paid the petitioner to March 1st, 1933, at the rate of $17 a week.

Dr. James Mason, testifying for the petitioner, stated that as the result of the above named injury the petitioner is totally disabled, and is, therefore, entitled to compensation under the provisions of paragraph 11 B of the Compensation act. This provision of the act specifies that compensation on account of total disability shall be paid specifically for four hundred weeks, and that compensation shall be further paid during the duration of the disability.

It appears from the record that more than ten years has passed since the accident, and at the hearing on December 14th, 1933, Dr. Mason, who has been familiar with this case for a number of years, testified that the injured is still totally disabled. I reach the conclusion, therefore, that the petitioner’s total disability will be permanent and will continue throughout the rest of his life.

It is, therefore, on this 29th day of December, 1933, ordered that the respondent pay to the petitioner $17 a week during the life of the petitioner, subject to such modification as may be within reach of the respondent under the provisions of paragraph 11 B, of the statute.

Dr. James Mason will be allowed an attendance fee of $20 to be paid by the respondent.

A counsel fee of $200 will be allowed the petitioner’s attorney to be paid by the respondent.

William E. Stubbs, Deputy Commissioner.


author: Berry, Y. C.

text:
    In the matter of John S. Martin, Amalgamated Clothing Workers of America, Bruno Bellia, John Sala, also known as Joseph Sala, also known as Joe Scala, Ignazio Pullaro, Tony Scarpini and Salvatore Lo Presti, charged with contempt of an injunctive order of the court of chancery entered in the cause of “Sigmund Eisner Company, a corporation, v. Amalgamated Clothing Workers of America et al., defendants.”
    [Decided March 5th, 1934.]

      Mr. William O’Hagan, for the motion.

      Mr. Merriil Lane, contra.

   Berry, Y. C.

(Orally, after argument by Mr. O'Hagan to tvhich Mr. Lane did not reply.)

I shall not ask anybody to say anything further for or against this proposition of modifying the sentences heretofore imposed.

It is a matter with which the- court alone is concerned. When I say “the court” I mean not myself as an individual, who happens to be sitting in this court at this particular time, but the court as a part of one of the three co-ordinate branches of the government of this state. I am sorry that this application has been made in the way in which it has been made, because there has not been offered or suggested a single fact or the slightest reason why the court should modify the sentences which have alreadjr been imposed. When those sentencies were imposed, I stated that I performed my duty reluctantly, and I did, because it is not pleasant for me, as an individual, to deprive another man—who has just as much right to live as I have—of his liberty, and I did what I did at that time only of necessity. The sentences which I imposed were much more lenient than the circumstances of the case justified. I always believe in tempering justice with mercy, but, as I have already stated in this very proceeding, if I erred in the imposition of those sentences, it was upon the side of leniency rather than of severity. And I say that for this reason: during the whole course of the trial of the contempt proceedings, and after conviction, and while these men were standing in front of me, prepared to receive their sentences, there was not the slightest word of apology, not the slightest indication of any regret on their part for what they had done. Up to the very time that they walked into the jail, in Freehold, they flouted the authority of this court. I think 1 never saw a greater exhibition of contempt than was shown by those five men who stood before me, when the sentences were imposed—stolid, unmoved, unconcerned, because I think they evidently expected at that time that some unseen power was going to keep them out of jail, and that they could keep right on doing what they have been doing in the past, with absolute impunity. Subsequent events have confirmed that opinion to my mind. There is not now, after all the time that has elapsed, after they took an appeal from the conviction and sentence, then of their own motion dismissed it, appeared in open court and asked for modification, which was refused, and now again come into court—there is not yet the slightest indication of regret or repentence, or apology to the court for their attitude or anything else. T think the application is the most amazing, under the circumstances, that I over heard. T have never before heard of any application directed to the clemency of the court, which was not based upon some grounds of repentance, for a crime which had been committed, and this is a criminal proceeding.

(Mr. O’Hagan attempts to address the court, and by a wave of the hand is told to sit down, by the court.)

I am sorry to have to say what I am about to say. I would not do it except for the protection of others. Ever since this matter was first disposed of, there have been influences at work in an endeavor to get me to change my mind and modify the sentences.

The first intimation I had of it was when, after an appeal had been taken, Mr. Lester Eisner and Mr. Mortimer Eisner came to me with the information that the national labor board had in effect made the suggestion that if they could secure the court’s consent to some modification of these sentences, the appeal which had been taken would be dismissed or withdrawn. Quite an unusual suggestion to be made to this court or any other court from which an appeal had been taken to the court of errors and appeals. I had no interest in the appeal; it made no difference to me or to this court or to any member of the court, whether the appeal was prosecuted or whether it was not. I had done my duty as I saw it. If I erred it was entirely proper that these men should prosecute their appeal. That was the undoubted right which they had, and if I had committed error, the court of errors and appeals would undoubted^ have rectified that error.

I explained to these gentlemen that I would not make any agreement with anybody with respect to the modification of sentence which had been imposed, that I was not personally interested in the matter, and that the appellants would have to be guided by their own judgment as to what they should do, and Mr. Lester Eisner suggested that he had come to see me only because he had promised the national labor board that he would do so, and that he wanted to be fair to the men and to the board, and he wanted to put himself on record as being in favor of the modification of these sentences, and asked my permission to address a letter to me to that effect, which permission I gave him¿ and which he did in accordance therewith. That was the last I heard of the matter until the men appeared before me in court in Long Branch to surrender themselves after the appeal had been dismissed. What moved them to dismiss or withdraw their appeal I know not, and it is of no moment to me. I only know that the appeal was withdrawn. x\n application was made then for a modification of the sentences and the application was denied. Since then the "grapevine route” has been working, and I think that the sooner the people who are interested in this case, whoever they are, and the sooner the public in general, finds out that this court will not be controlled, either by organized labor or organized capital, the better it is going to be for all concerned, because that is the fact.

The last information that came to me, and it would be almost unbelievable if it had not come from sources that I must have confidence in, is that a threat is now made to the Eisner company, which has absolutely no interest in these proceedings, that unless that company obtained from me a modification of these sentences, the government contracts which they enjoy are going to be canceled. I don’t know whether that was intended to intimidate me or not, but if it was, it is jnst a waste of so much breath, because I am no more concerned with the government contracts of the Eisner company than I am with the wages which were received by these men who were sent to jail for contempt of the court’s order, and the Eisner company has just as much influence with me as the labor union has, and that is exactly nothing, and the sooner they make up their minds to that effect, the better it is going to be for all of us.

Í am not closing the doors to any future application for clemency. If any clemency is meted out to these men other than what has already been shown, it will be on a change of mv own mind, and certainly upon a very marked change in the attitude of these men themselves, and if any other application is ever made, it will be an application based upon a repentance and an apology. That is all I have to say.


author: Lawrence, S. C. C.

text:
    L. BELLE WATERBURY, HALCYON B. WATERBURY, JOAN WATERBURY, BY HER NEXT FRIEND, LEILA WATERBURY; ROBERTA WATERBURY, BY HER NEXT FRIEND, LEILA WATERBURY, AND LEILA WATERBURY, INDIVIDUALLY, PLAINTIFFS, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY; AND NEW JERSEY BELL TELEPHONE COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Decided December 2, 1933.
    Por the motions, Henry H. Fryling and Smith £ Slingerland.

    Opposed, Stein £ Stern.

   Lawrence, S. C. C.

While these motions are in form to non-pros, plaintiffs for failure to post adequate security for costs, on the argument they were regarded as an interlocutory matter of practice, involving a step in the cause, arising under rule 94 of the Supreme Court, with the understanding that the meritorious question discussed should be determined.

The plaintiffs are non-residents and seek compensation for injuries alleged to have been received in an automobile accident which occurred at Somerville, in this state. The vehicle in which they were it appears became entangled with a wire or wires which it is charged one or the other of the defendants negligently allowed to fall into the roadway and there remain unguarded, so creating and constituting a nuisance. Since the causes of action have a common question of law or fact and arose out of the same transaction, plaintiffs joined in the present suit against both defendants, as permitted by paragraphs 4 and 6 of the Practice act of 1912. Metropolitan Casualty Insurance Co. v. Lehigh Valley Railroad Co., 94 N. J. L. 236; 109 Atl. Rep. 743.

On the service of process with complaint annexed, each of the defendants gave notice demanding security for costs, pursuant to section 204 of the Practice act of 1903. 3 Comp. Stat., p. 4115. See Sheehan v. LaBelle Co., 92 N. J. L. 315; 105 Atl. Rep. 449. In response to this demand, plaintiffs jointly deposited with the clerk $100 and gave notice thereof to defendants. The motions here made resulted and it was argued on behalf of defendants that the deposit was not in compliance with the statute; that the provision requires in fact that each of the plaintiffs should post a bond for $100 to each of the defendants or deposit a like sum in cash. In other words, the security, it was argued, should total $1,000. Citing Tompkins v. Burlington Island Amusement Co., 3 N. J. Mis. R. 219; 127 Atl. Rep. 817; Kearney v. Baptist, 10 N. J. Mis. R. 431; 159 Atl. Rep. 405, and Marino v. Shiff Realty Co., 11 N. J. Mis. R. 96; 164 Atl. Rep. 577.

Counsel for plaintiffs, admitting that the deposit made was, through misapprehension, inadequate, since there were two defendants, urged that the most that could be required, in construing section 204 of the Practice act of 1903, in its application to paragraphs 4 and 6 of that of 1912, would be a bond for $100 to each defendant or a deposit of $200, since in the taxation of costs, neither of the defendants would be entitled to a separate bill of costs taxed against each of the plaintiffs, but that they could have a separate bill only against the plaintiffs jointly, inasmuch as a single suit was involved, in which there would be but one trial. He further suggested that the decision of the Court of Appeals of New York, in the case of M. Salimoff & Co. v. Standard Oil Company of New York, 259 N. Y. 219; 181 N. E. Rep. 457 (1932), contained cogent reasoning in support of his contention, and could well be followed here, as the Civil Practice act there contains provisions similar to our own permitting joinder of causes of action containing common questions of law or fact arising out of the same transaction. In the cited case it appeared there were eighteen plaintiffs, and the judge writing the opinion adopted by the court said: “There is no provision I can find in the Civil Practice act which would permit these eighteen plaintiffs, if they win, to have eighteen bills of costs against the defendant, or if the defendant should win, would give it eighteen bills of costs against the defendants. The defendant and the courts below have approached this action as if there were to be eighteen separate trials of the' issues. Section 209 (New York Civil Practice act) was adopted for the very purpose of avoiding such unnecessary litigation- and expense. To facilitate litigants and the courts, all persons whose claims involve any common question of law and of fact may be joined as plaintiffs in the one action. Thus there will be but one trial, and the main issue of fact, the liability, settled in the one law suit * * *. The very purpose sought to be accomplished by section 209 would be somewhat frustrated if by consolidation into one action, costs were allowed on the basis of separate actions.” It was accordingly held that the plaintiffs should be required to give security for costs to the defendant jointly and not separately.

Inquiry at the Supreme Court clerk’s office here elicited the information that it is the practice in a suit involving plural plaintiffs and defendants, if the result of the trial entitles the latter to costs, to tax costs for each defendant against the plaintiffs jointly and not individually. It would therefore appear that in the present suit plaintiffs should be required to furnish security for costs jointly to each of the defendants in the sum of $100. It is to be observed, moreover, that the court or the judge has the statutory right to exercise some discretionary control over the allowance of costs in a given case, and it would seem that in disposing of the present motions that fact should receive some consideration.

The conclusion is, consequently, that if plaintiffs collectively post a bond for $100 to each of the defendants, in the usual statutory form with sufficient sureties resident in this state, or deposit a like sum for the benefit of each defendant, in other words the sum of $200, the requirement of the statute will be deemed to have been met. The rule submitted may provide that if plaintiffs comply within fifteen days from its date, the motions here considered will be denied, otherwise they will be granted.


text:
    MAE (KENNEY) McCROSSON, PROSECUTOR, v. CIVIL SERVICE COMMISSION, DEFENDANT.
    Argued January 16, 1934
    Decided March 29, 1934.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Harry V. Osborne and Charles A. Malloy.

    For the defendant, William A. Stevens, attorney-general.
   Per Curiam.

The prosecutor, Mae (Kenney) McCrosson, after examination and certification by the civil service commission of this state, was appointed clerk-typist in the state highway commission, on July 1st, 1927. This position is in the classified competitive civil service of the state. She served until August 1st, 1933.

On April 1st, 1928, James H. Laffan, after like examination and certification, was appointed clerk-typist in the state highway department. He served until August 1st, 1933.

On August 1st, 1933, both Mrs. MeCrosson and Mr. Laffan were laid off by the state highway commission for reasons of economy. Sometime thereafter Mr. Laffan was reinstated. Mrs. MeCrosson was not reinstated.

Mrs. MeCrosson appealed to the civil service commission, which sustained the action of the highway commission in retaining Mr. Laffan. The commission decided “that the highway department has exercised its reasonable discretion in retaining a male instead of a female in a position as clerk-typist.” It further ordered that prosecutor’s name be continued on the re-employment list to be considered, as her. re-employment rights warrant, for vacancies in the highway department or any other part of the state service.

From the record it appears, and in prosecutor’s brief it seems to be conceded, that the highway commission might request certification for original employment of either a male or a female clerk-typist. This appears to be in conformity with the rules established by the civil service commission. If the highway commission may request certification of males only in filling a position in the first instance, there appears nothing unreasonable in holding that a male employe may be restored to a position which he formerly held, and to fill which the employing authority may request certification of males only. It is not asserted that Mr. Laffan is not eligible for reinstatement if a male is to be employed. The insistence of prosecutor is that the reinstatement must be from the eligible list of males and females in their order, regardless of sex. If this rule were followed, the practice might easily result in females only being reinstated to fill positions theretofore held only by males, and to fill which positions only males had originally been certified, under the rules of the civil service commission.

We conclude that Mr. Laffan has been retained in accordance with the rules governing such appointments, as appears from the record, and that such action of the highway commission was a reasonable exercise of the discretion vested in it.

The writ is dismissed, without costs.


author: Bodine, J.

text:
    TOWNSHIP OF CEDAR GROVE IN THE COUNTY OF ESSEX, NEW JERSEY, A MUNICIPAL CORPORATION, PROSECUTOR, v. NEW JERSEY STATE BOARD OF TAX APPEALS AND ROSCOE C. W. JONES, RESPONDENTS.
    Submitted January 27, 1934
    Decided March 27, 1934.
    Before Justice Case, Bodine and Donges.
    For the prosecutor, Samuel W. Boar Aman, Jr.

    For the respondents, William J. McCormack.

   Bodine, J.

The writ brings up for review a judgment of the state board of tax appeals affirming the judgment of the Essex county board of taxation, reducing from $19,000 to $12,000, the valuation assessed in October, 1931, against the property of the respondent Jones. The land in question consists of about nineteen acres. It was purchased in 1928 for $17,000, the intention being to use it for development purposes. It produces no revenue and due to the world-wide depression no real market exists for its sale.

The Essex county board of taxation and the board of tax appeals, after carefully considering the evidence adduced, accepted as true the owner’s views of value rather than those of the local assessors. The prosecutor complains of this action.

The local assessors valued the property abutting on Fair-view avenue at $6 a front foot running back two hundred feet and the property abutting on Prompton avenue at $10 a front foot, running back a like distance. The rear land was figured at $650 an acre. The total so figured came to about $19,000. The property was assessed in 1929 at $17,000, although other land in the vicinity sold in that year for $2,000 an acre. ISTo evidence of comparable contemporaneous sales could be adduced.

The township offered to show by deeds and mortgages of record that the property possessed the value fixed by its assessors. Such records were rejected by the state board of appeals, whether rightly or wrongly, we need not determine, since at most if evidential, they would not be conclusive since the recitals of consideration are at most expressive of the basis of contract. A mortgage is usually given as security for a debt and the amount may have no relationship whatever to the value of the property mortgaged. Similarly the recitals of consideration in deeds are well known to be inaccurate. At all events, the existence of a purchase-money mortgage given years before cannot be said to be evidential as to present value, nor even the restatement of such mortgage after worldwide financial disaster. The circumstance that nothing is shown to indicate that Cedar Grove township is differently situate from the rest of the world shakes our confidence in the veracity of the testimony of the assessors, since they increased the assessed value of the lands in question from 1929 to 1932—a period of generally rapidly declining values. It is further apparent that there was a sound basis for the action taken in the two tribunals which have passed upon the matter and their judgments should not be lightly disturbed when sustained by the proof. Such we find to be the case.

The assessment as made by the Essex county board of taxation will be affirmed.


author: Eggerh, J.

text:
    First District Court of Jersey City.
    HELEN F. CRAVEN, EXECUTRIX, ETC., AND MORTGAGEE IN POSSESSION, PLAINTIFF, v. BASIL COPLIKA ET AL., DEFENDANTS.
    Decided March 19, 1934.
    For the plaintiff, John D. Graven.

    For the defendants, Hershenskein, O’Brien & Tarlalsky.

   Eggerh, J.

This is an action in dispossession brought by the mortgagee in possession for the premises located at 280 Monmouth street in the city of Jersey City, New Jersey. Plaintiff relies on sections 107, 108 of the District Court act (2 Comp. Stat., p. 1988) and sections 18A and 18B of the Landlord and Tenant act (3 Comp. Stat., pp. 3070, 3071) for her right to maintain this action. Although not specifically stated but argued in plaintiff’s brief, section 26 of the Landlord and Tenant act, supra, is also relied upon. Section 26 reads as follows:

“Nothing herein contained shall extend to vacate or affect any attornment made pursuant to, or in consequence of, some judgment of law, or decree or order of a court of equity, or made with the privity and consent of the landlord or landlords-lessor or lessors, or to any mortgagee after the mortgage has become forfeited."

A motion to strike out the summons in dispossession on the ground of lack of jurisdiction is before the court for determination.

The facts in the case follow:

On or about January 29th, 1934, the plaintiff commenced an action in the Court of Chancery of New Jersey for the foreclosure of the mortgage on the premises in question and the said action is now pending and undetermined. It appears that plaintiff has not applied for a receiver of rents. On January 22d, 1934, the plaintiff caused to be served upon the tenants the following notice:

“To the tenants of No. 280 Monmouth Street, Jersey City, N. J.:

Take notice, that Helen F. Craven, as executrix under the last will and testament of Michael Craven, deceased, has taken possession of the premises known as No. 280 Monmouth Street, Jersey City, New Jersey, as mortgagee, and as mortgagee in possession, is entitled to receive the rents of the premises in which you are a tenant. That she has designated John Craven & Son Company, of No. 225 Montgomery Street, Jersey City, New Jersey, as her agent, to operate, manage and maintain the said premises as her agent, to rent the premises and collect the rents, and any matters pertaining to the rent in your possession of the said premises, should be taken up with them.

Helen F. Craven,
Dated January 22d, 1934. As executrix, &c.”

The tenants refused and failed to pay the rent to plaintiff, whereupon these suits were commenced on February 20th, 1934.

The primary question before the court is this:

“Does the affidavit contain averments sufficient to create the existence of the relation of landlord and tenant.”

The right of the court to take jurisdiction must depend on the facts alleged:

“Where the facts stated in the affidavit do not show the existence of the relation of landlord and tenant, the court does not acquire jurisdiction, though such relation is stated in the affidavit as a conclusion of law.” Gray v. Reynolds, 67 N. J. L. 169; 50 Atl. Rep. 670.

And if it appears that such facts do not create the existence of the relations demanded by the statute, then the action must fail for lack of jurisdiction. There is no other alternative open to the court.

“Proceedings to dispossess the tenant are entirely statutory and the statute must be strictly followed to warrant a judgment of dispossession.” Arnheiter v. McAghon, 96 N. J. L. 70; 114 Atl. Rep. 752.

The affidavits in the matter sub judice are substantially as follows:

“First District Court op Jersey City.
State of New Jersey, County of Hudson, City of Jersey City, ss:
Helen F. Craven, executrix under the last will and testament of Michael Craven, deceased, mortgagee in possession, plaintiff, v. Basil Coplika, defendant.
In dispossession.

Mildred Tyler, being duly sworn, says that she is the secretary to John Craven & Son Co., the duly authorized agent, to rent, collect rent, and dispossess tenants, of into and for premises of the above named plaintiff, landlord, that the .above named defendant is now in occupancy and the possession of part of a certain house and premises of the above named plaintiff, situate in the City of Jersey City, in said County and State, and known and designated as second floor north, No. 280 Monmouth St., in said Jersey City, under an agreement made by and between the above named plaintiff and the above named defendant, Tenant in possession when we took charge on or about 22d day of January, A. D. 1934, whereby the above named plaintiff, let and rented said premises to the above named defendant for the term of one month and thence from month to month thereafter, from the 22d day of January, A. D. 1934, at the monthly rent of $23 dollars, payable monthly in advance, that the said defendant thereupon entered into possession of said premises as tenant thereof, by virtue of the said agreement, and is now indebted to the above named plaintiff in the sum of $46 dollars, $23 to Feb. 1, 1934; $23 to Mar. 1, 1934, for rent of the said premises, due on the 1st day of February, A. D. 1934.

And deponent further says, that the said defendant has not paid the rent or delivered up the possession of the said premises; but that he has made default in payment of the said rent, and holds over and continues in possession of the said premises, without permission of the above named plaintiff.

Mildred Tyler.
Sworn and subscribed this 19th day of February, A. D. 1934, before me at Jersey City.
William Brown,
Notary Public of New Jersey

A perusal of the affidavit, supra, and the others .are identical, discloses that:

“Helen F. Craven is the executrix under the last will and testament of Michael Craven, deceased, mortgagee in possession; that Mildred Tyler is the secretary to John Craven & Son Co., who are the duly authorized agents, to rent, collect rent, and dispossess tenants, of unto and for the premises of the above named plaintiff landlord.”

Ergo j if the status of the plaintiff mortgagee in the instant case is that of a landlord, then she is entitled to maintain this action, and the jurisdiction of the court is established. The court perceives no such relationship in the instant case.

In the case of Hinck v. Cohn, 86 N. J. L. 617; 92 Atl. Rep. 378, in an opinion rendered by Mr. Justice Trenchard for the Court of Errors and Appeals, it was held that:

“After there has been a default, the mortgagee is entitled to possession, and has a right to collect rents after he has been put into constructive possession by the attornment of the tenant.” Citing Mershon v. Castree, 57 N. J. L. 484; 31 Atl. Rep. 662; Shields v. Lozear, 34 N. J. L. 496; Sanderson v. Price, 21 Id. 637.

In Stanton v. Metropolitan Lumber Co., 107 N. J. Eq. 345; 152 Atl. Rep. 653, the court held that the mortgage without more, does not carry rents.

“A mortgagee is not entitled to rents of the mortgaged premises accruing after default unless and until he takes possession personally or by a receiver duly appointed by the court. Citing C. F. Bermes v. Kelly, 108 N. J. Eq. 289; 154 Atl. Rep. 860; Paramount Building and Loan v. Sacks, 107 N. J. Eq. 328; 152 Atl. Rep. 457; Stewart v. Fairchild Baldwin Co., 90 N. J. Eq. 139; 106 Atl. Rep. 406.

“And it is also true that a mortgagor in default, forfeits, not automatically, but by appropriate action on the part of the mortgagee, his right of possession and his right to the collection of rents.” See, also, 20 Am. & Eng. Encycl. L. 1035.

Counsel for plaintiff maintains that in the present case the motion to dismiss is equivalent to a motion to strike out, and the facts alleged in the affidavit must be construed as being true. Granting that is so, the court discerns nothing therein tending to create the existence of landlord and tenant. The facts alleged are merely conclusions of law. Pacts necessary to create such an existence must be alleged in the affidavit. The only way in which such a relationship could be created in the present case is by the attornment of the tenant to the mortgagee, and no such allegations are contained in the affidavit before the court. The court cannot consider facts which do not appear in the affidavit. An attornment by the tenant to the mortgagee is a condition precedent to the mortgagee’s right to the rent. This is naturally so since on the tenant’s failure to attorn the mortgagee has a right of ejectment.

“A mortgagee after default, may eject a mortgagor or those who hold under him.” CÍ. cases collected in 7 N. J. Dig. 661, 669, 3213.

The plaintiff’s right here must of necessity be predicated only upon those rights which she derives from the statute.

“If the tenants under such a lease (subsequent to the mortgage) attorn to the mortgagee after a breach of the conclition which gives him a right of entry, they thereby become his tenants and debar the mortgagor from recovering thereunder.” Del New Co. v. James, 111 N. J. L. 157; 167 Atl. Rep. 747; citing Kimball v. Lockwood, 6 R. I. 138.

In the case of Jones v. Clarke and Stewart, 20 Johns. (N. Y.) 5, Chief Justice Spencer said, referring to the tenant’s right to attorn, and those he may attorn to: “He may attorn to a mortgagee after the mortgage is forfeited.”

Por these reasons the court must conclude that the right of a mortgagee to collect rents accrues only after the tenant has attorned to him and thus created the statutory requirement of landlord and tenant. No such attornment appearing in the affidavits filed by the plaintiff, the existence of the-relation of landlord and tenant has not come into being. That being so and for the reasons stated in Arnheiter v. McAghon, surpra, the court is without jurisdiction in the matter.

The defendant’s motion is granted and the summonses in. disposession are hereby dismissed.


author: Pee Cubiam.

text:
    EDWARD HORWITZ, INDIVIDUALLY, AND S. & E. TRADING COMPANY, A CORPORATION OF NEW JERSEY. PROSECUTORS, v. ARTHUR H. JONES, MAYOR; JAMES A. KELLY, WILLIAM WHISTON, WILLIAM SWANTON. WILLIAM C. CALMAR, HENRY J. PALMER, JOSEPH E. FROBISHER, WILLIAM H. HOWATT, HARRY M. SHORKLEY, MEMBERS OF THE TOWN COUNCIL OF THE TOWN OF KEARNY; WILLIAM B. ROSS, CLERK OF THE TOWN OF KEARNY, AND JOHN D. CASTLES, MUNICIPAL SUPERINTENDENT AND BUILDING INSPECTOR OF THE TOWN OF KEARNY, DEFENDANTS.
    Submitted January 27, 1934
    Decided March 23, 1934.
    Before Beogan, Chief Justice, and Justices Teencttaed and Hehek.
    For tlie prosecutors, Louis TFms.
    For the defendants, Arthur B. Archibald.

   Pee Cubiam.

The record before us reveals that on August 15th, 1933, the S. & E. Trading Company, by letter, applied to the governing body of the town of Kearny, Kew Jersey, for a permit to erect a building to be used for storing celluloid scrap. The letter stated that the budding would be fireproof in structure, equipped with a sprinkler system, and would be located in the meadow area approximately six hundred feet east of Schuyler avenue in the town of Kearny.

On August 16th, 1933, the applicant was notified that its application was received, read and approved. A permit was later issued and the S. & E. Trading Company proceeded with the building. On September 14th, 1933, the applicant was notified that at a meeting of the governing body, held the previous day, the permission to erect the building was revoked.

A writ of certiorari was allowed to review the action of the municipal body in revoking this permit. The return and the depositions taken indicate that the prosecutors of this writ, on August 21st, 1933, filed with the building inspector of the municipality, plans of the building which were approved, and the building permit was issued. Thereafter the prosecutors entered into a building contract with a builder and also contracted for the installation of a sprinkler system and have paid out, on account of these contracts which were under way, the sum of $2,400.

The defendants, in justification of the revocation of the building permit, say that the permit was granted by the governing body because of the representation made by the prosecutors that the building would be located one thousand feet away from Schuyler avenue. This statement is denied by the prosecutors. It is not contended that there was any violation of any building code or zoning ordinance of the municipality. The letter of application, which is in the record before us, is very persuasive that the representation which was made, as to the location of the building, was as therein stated, namely, within approximately six hundred feet of Schuyler avenue.

The only justification for revoking this permit, in view of the fact that the prosecutors relied thereon and changed their position because it was issued to them by the expenditure of money as stated, is that they were guilty of deception and fraud. This case is very similar to and is controlled by the decision of our eourt of last resort in the case of Freeman v. Hague, 106 N. J. L. 137; 147 Atl. Rep. 553.

In the case before us we can find no evidence that would convict the prosecutors of deceit, misrepresentation or fraud with regard to its application for and its receipt of the permit to erect this structure. The exhibits in the case expressly state the use to which the building is to be put; that it would be fireproof in structure; that it would contain a sprinkler system, and that it would be located in the meadow land designated, approximately six hundred feet away from Schuyler avenue, which is apparently a built-up neighborhood.

It is incumbent upon those who assert fraud to prove it. This the defendants have failed to do. To the contrary, their testimony is vague and uncertain, some of the witnesses, in fact, admitting that the structure is approximately six hundred feet away from the said Schuyler avenue.

We conclude therefore that the resolution of September 13th, 1933, revoking tire permit of August 21st, 1933, must be set aside, with costs.


text:
    LILLIAN B. (SHIPPLEY) NAPLES, PROSECUTOR, v. CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Submitted January 27th, 1934
    Decided March 27, 1934.
    Before Justices Care, Bodine and Dongbs.

      For the prosecutor, Osborne, Cornish & Schech {Harry V. Osborne and Charles A. Malloy).

    For the defendant, William A. Bievens, attorney-general {Theodore Baches and Walter H. Bacon, Jr.).

   Bodine, J.

The prosecutor was appointed a clerk-typist in the state highway department May 2d, 1927. She was laid off by reasons of economy on August 1st, 1933. A clerk whose employment commenced three days later was also laid off, but she has been re-employed. So also has a young man subsequently employed.

It is of course obvious that the rules require that in the absence of satisfactory service ratings the persons last appointed shall be first laid off. Three days seniority would of course be a determining factor, were it not for the circumstance that the civil service commission found that the appointment of both clerks was given consideration at the same time and the difference in time of service was due to the peculiar circumstances applying to each case and not intended to determine seniority. Perhaps a mere difference in time of reporting for service. At all events prosecutor has not seen fit to print in the case the record and correspondence upon which the judgment of the commission was based. The record is also silent on the precise facts as well as to the reasons for the preference afforded to the male clerk-typist subsequently appointed. But the finding is based upon the assertion of the department’s privilege to express a preference because of the duties to be performed.

While the record before us is attenuated we are loth to disturb the findings of the civil service commission since they appear to have good reasons for the action taken.

The writ will be dismissed.


author: Bodene, J.

text:
    NICHOLAS RIBAUDI, APPELLEE-RESPONDENT, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, APPELLANT-PETITIONER-PROSECUTOR.
    Submitted January 27, 1934
    Decided March 27, 1934.
    Before Justices Case, Bodine and Donges.
    Bor the appellee, DeFazio <& Beronio (John W. Ochford).

    Bor the appellant, Frederic B. Scott.

   Bodene, J.

The writ brings up an award in a compensation case affirmed on review in the Court of Common Pleas.

The railroad seeks to have the award set aside solely because at the time the injuries were sustained, the employe was engaged in interstate commerce within the meaning of the Federal Employers5 Liabilitjr act. Since the question of whether employment is in inter or intrastate commerce is .always a troublesome one, since it must depend upon the facts in each particular case, the federal statute has been justly criticised as cumbersome and inadequate. 47 Harvard Law Review 389. However unhappy the result, the distinction is ■one of fundamental law and must be observed. Once an •employe is engaged in work of an interstate character, he must seek compensation under the Federal act, although the state would afford him a speedier and more convenient forum for his recovery. New York Central Railroad Co. v. Porter, 249 U. S. 168; Rounsaville v. Central Railroad of New Jersey, 90 N. J. L. 176; 101 Atl. Rep. 182.

The injured workman was employed by the railroad company as a tool checker, his duties being to service locomotives. At the time of his injuries he was sent to service an engine to be used in interstate commerce. The engine was some blocks from the roundhouse, where he usually worked. On his way he stopped at the railroad milk platform to get a bottle, to be later used as a container for coifee, which he intended to buy after his work on the engine was completed if, in the meantime, no other engines had come into the roundhouse. While he was standing at the milk platform he was struck by a train.

It is manifest that although the employe had serviced, during his working hours, interstate as well as intrastate engines, still the work which he was next to do was of an interstate character. The servicing of an engine to be used in interstate commerce brought the employment within the purview of the interstate classification and the federal statute. Marcone v. New York Central Railroad Co., 105 N. J. L. 466; 144 Atl. Rep. 635; 281 U. S. 345; 50 Sup. Ct. 294. If the injury arose out of, and in the course of, any employment, it was of an interstate character. The award under the state statute must therefore be set aside.

The judgment below will be reversed.


text:
    IN THE MATTER OF J. GARRY KEELY, LOUISE HELEN DANNA, MILTON KOPLOWITZ AND LINCOLN S. FERRIS.
    Decided March 9, 1934.
    Before Justices Paekee, Lloyd and Peeskie.
    Por J. Garry Keely, Merritt Lane.

      For Milton Koplowitz, Philip Lowits.

    For Louise Helen Danna, Howard F. Barreit.

   Pee Cubiam.

Application has been made on behalf of each and every of the above named candidates for admission to the bar examination although admittedly in every case there has been an omission to post the required notice of intention to take said bar examination within due season. Various excuses are proffered, such as illness, death, inadvertence, &c.

The court feels constrained to say, however, that the rule requiring this notice to be posted in due season is one which has always been rigidly enforced for many years, and, in part, on the ground of public policy, that the public is entitled to know who is intending to take the bar examination so as to be in a position to file objections in case of need; and that no such opportunity is afforded the public unless the notice be filed by the day specified in the rule. The rule, as we understand it, allows a period of a month during which this notice may be filed, and when candidates wait until the time has nearly expired before attempting action on that line, the court is not to be blamed if they are prevented by some unforeseen circumstance from filing the notice by the date when it ought to be filed.

The application to take the examination notwithstanding this failure is, therefore, necessarily denied in each and every case.


text:
    BERNIE SWEET, PETITIONER-DEFENDANT, v. AUSTIN COMPANY, A CORPORATION, RESPONDENT-PROSECUTOR.
    Submitted January 27, 1934
    Decided April 4, 1934.

      Before Justices Case, Bodine and Donges.
    Por the respondent-prosecutor, John A. Matthews.

    Por the petitioner-defendant, Kwalick & Tolcer.

   Bodine, J.

Prosecutor seeks the review of an award of compensation under the Workmen's Compensation act. Two questions are presented and there is no merit in either.

Pirst, the proofs sustain the bureau finding that the contract of employment was made in this state, and that although the work was to be performed in another state still our statute was controlling. Since compensation under section 11 of the statute rests in contract, the bureau took the correct view of the law. Foley v. Home Rubber Co., 89 N. J. L. 474; Rounsaville v. Central Railroad Co., 87 Id. 371; 90 Id. 176; Hi-Heat Gas Co. v. Dickinson, 12 N. J. Mis. R. 151.

Second, although there was no petition filed within a year still an agreement in regard to compensation was made pursuant to the Massachusetts law and compensation was paid thereunder up to a few months before filing the petition in suit. The payments of compensation as made must be regarded as either voluntary or by agreement since the Massachusetts statute did not apply. The action was, therefore, not barred by limitation. Herbert v. Newark Hardware Co., 107 N. J. L. 24.

The award is affirmed.


text:
    THE STATE OF NEW JERSEY, WILLIAM D. LYKES AND THOMAS POTTER, PROSECUTORS, v. HOWARD HEIGHT, RESPONDENT.
    Submitted January term, 1933
    Decided April 11, 1934.
    Before Justices Paricbr, Lloyd and Heher.
    For the prosecutors, Samuel M. Adler (John A. Lynch, of counsel).
    For the respondent, Edward W. Currie.

   Per Curiam.

The application is for a writ of certiorari to review the action of the sheriff of Monmouth county in dismissing the applicants as jail guards in the Monmouth county jail.

The court having given due consideration to the application and the reasons advanced therefor, and the same being deemed insufficient, it is hereby denied, with costs.


author: Tallman, J.

text:
    First Judicial District Court of Warren County.
    GENERAL MOTORS ACCEPTANCE CORPORATION, A CORPORATION, PLAINTIFF, v. HAYES MOTOR COMPANY, A CORPORATION, J. RUSSELL DOYLE, SHERIFF OF WARREN COUNTY, AND JOHN DOE, BEING THE ONE IN POSSESSION, DEFENDANTS.
    Decided April 12, 1934.
    For the plaintiff, CMvian & Chivian.

    For the defendant, Ciarle C. Bowers.

   Tallman, J.

In January, 1933, one Eohert J. McKeon purchased under a conditional sale contract from Moore Chevrolet Company, Incorporated, a 1932 Chevrolet one and one-half ton truck, Motor Ho. 2MB09-11470, Serial T3354309, which conditional sale contract was assigned to the plaintiff herein. General Motors Acceptance Corporation is engaged in what is commonly called “the finance business,” and more specifically, in the business of purchasing for valuable consideration, conditional sale contracts covering, among other things, automobiles. The said conditional sale contracts reserve title in the seller, or its assignee, until the full purchase price has been paid by the buyer of the vehicle. Kobert J. MeKeon, having defaulted in the payments due under the terms of the conditional sale contract, executed by him, the vehicle was repossessed and the title cleared in accordance with the Uniform Conditional Sale act, Pamph. L. 1919, ch. 210. The vehicle was then returned to Moore Chevrolet Company, Incorporated.

On October 30th, 1933, Moore Chevrolet Company, Incorported, again sold the vehicle to one M. H. Latting, residing at 223 Thompson street, Koselle, New Jersey, who executed a conditional sale contract for the vehicle. The contract was thereupon assigned to General Motors Acceptance Corporation for value. The conditional sale contract was filed in the office of the register of deeds for Union county on November 8th, 1933, in accordance with sections 5 and 6 of the Uniform Conditional Sale act, section 5 providing for the filing of the contract, or a copy thereof, within ten days after the making of the conditional sale contract, and section 6 providing that the contract, or a copy, shall be filed in the office of the county clerk or where there is a register of deeds, in the office of such register of deeds in the county in which the goods are first kept for use by the buyer after the sale.

On November 6th, 1933, while the afore-described vehicle was being operated at Buttsville, it was seized for overloading, of which fact General Motors Acceptance Corporation became aware in January, 1934, as a result of an investigation instituted by reason of the fact that M. H. Latting had defaulted in the terms and conditions of the contract executed by him. As a result of the investigation, it was ascertained for the first time by General Motors Acceptance Corporation, that this vehicle still bore the registration plates of Bobert J. MeKeon, the first conditional vendee from whom the vehicle had heretofore been retaken.

General Motors Acceptance Corporation demanded possession of the vehicle from J. Bussell Doyle, sheriff of Warren county, and from a representative of Hayes Motor Company, in whose custody and possession the vehicle had been placed by the sheriff. The sheriff refused to deliver possession of the vehicle to General Motors Acceptance Corporation until and unless the fine assessed against the alleged owner of the vehicle had been paid, which, of course, General Motors Acceptance Corporation refused to do. Hayes Motor Company refused to deliver the vehicle to General Motors Acceptance Corporation until the payment of the fine to the sheriff and payment of its garage bill for storage, which General Motors Acceptance Corporation also refused to pay.

These facts were established at the trial of the above matter, and the matter resolves itself to the following questions of law, there being no dispute as to the facts:

(1) Is General Motors Acceptance Corporation liable for the payment of the fine as the owner of the vehicle in accordance with the provisions of the Motor Vehicle act?

(2) Does the fine imposed against the owner of the vehicle and assessable against the vehicle come within the scope of the Hniform Conditional Sale act providing for certain liens to be paramount to the rights of the conditional vendor ?

(3) Was there such a removal of the vehicle from Hnion county to Warren county as would necessitate a refiling of the conditional sale contract in Warren county, and

(a) If there was such a removal, did General Motors Acceptance Corporation have such knowledge as would debar it from its right to possession of the vehicle by reason of its failure to refile?

(4) Does General Motors Acceptance Corporation have the right by virtue of its conditional sale contract, to maintain replevin proceedings for the possession of the vehicle ?

(5) Does this case come within the prohibition of section 121 of the District Court act?

Point 1. General Motors Acceptance Corporation is not such an owner in the contemplation of the Motor Vehicle act as would make it liable for the payment of a fine for overloading.

Pamph. L. 1933, ch. 151, provides as follows:

“Provided that no automobile, commercial vehicle, trailer, semi-trailer, or tractor, shall be registered by the commissioner of motor vehicles unless the same are equipped with rubber tires on all wheels; and provided, further, that the owner of any commercial vehicle, tractor, trailer or semitrailer, whose vehicle shall be found overloaded on a public highway or operated with a load beyond the gross weight shown in the registration certificate * * * shall be fined not less than $100 nor more than $250 for the first offense, &e., &c.”

Admitting that the vehicle in question was overloaded, and that the fine which is sought to be charged and for payment of which the vehicle in question is being detained, can the vehicle be so detained as aganst General Motors Acceptance Corporation, the finance company. I think not in view of Pamph. L. 1926, ch. 251, which is a supplement to the Motor Yehicle act and which provides as follows:

“The word ‘owner’ as used in the act to which this act is a supplement shall also be taken to mean and include a person acquiring possession of a motor vehicle under and by virtue of a conditional sale contract, lease, bailment, agreement, chattel mortgage or other security agreement.”

Surely, from a reading of this excerpt from the statute, it can clearly be seen that the intention of the legislature for the purpose of the Motor Yehicle act and all its provisions, applies solely to the person in whose name the vehicle is, or is presumed to be registered, omitting specifically and entirely the finance company who are the owners of the vehicle only by virtue of their conditional sale contract.

Under the Uniform Conditional Sale act, the conditional vendor or finance company is construed to be the owner of the vehicle, the conditional sale act specifically stating that a conditional sale is actually a bailment.

Heading Pamph. L. 1926, ch. 251, and Pamph. L. 1933, ch. 151, together, the construction that must necessarily be placed upon these two sections of the same act is that the owner in contemplation of law for the purpose of the Motor Vehicle act is none other than the registered owner as it appears in the records of the commissioner of motor vehicles at Trenton.

It is undoubtedly true that General Motors Acceptance Corporation is .the legal owner of the vehicle in view of its conditional sale contract. However, the Conditional Sale act stands separate and apart from the Motor Vehicle act, which fact was specifically stated in the case of General Motors Acceptance Corporation v. Smith, reported in 127 Atl. Rep. 179, where in an opinion by Mr. Justice Katzenbach, speaking for the Court of .Errors and Appeals, he specifically states:

“This act stands by itself,” referring to the Conditional Sale act.

In the case above cited, we have a situation which might be comparable to the situation at bar. In the cited case, the Foley Chevrolet sold to one Deitzel an automobile under a conditional sale contract, which contract was assigned to General Motors Acceptance Corporation. Deitzel sold the vehicle to one Smith in violation of his agreement, from whom General Motors Acceptance Corporation demanded possession, which was refused, whereupon General Motors Acceptance Corporation instituted a replevin action against Smith. The lower court nonsuited General Motors Acceptance Corporation on the ground that the assignment of the conditional sale contract to General Motors Acceptance Corporation did not transfer the absolute title to the car and that such title can only be obtained by compliance with chapter 168 of the laws of 1919, which is the Motor Vehicle act. In reversing the decision of the lower court, Mr. Justice Katzenbach states:

“In directing the entry of a nonsuit, we think the trial court erred. In the first place, it was not necessary that in the transfer between Foley and the Acceptance Corporation there should have been compliance with chapter 168 of the laws of 1919. The purpose of that act was to prevent the sale of stolen automobiles. This is clearly indicated by the provisions of the act which require that every motor vehicle sold or purchased shall contain a manufacturer’s number and which prohibits the sale or purchase of motor vehicles having obliterated or altered numbers.”

Certainly, in view of ilie Conditional Sale act, the Motor Vehicle act as above cited, and the case of General Motors Acceptance Corporation v. Smith, the plaintiff herein is not such an owner of the vehicle as to make it liable for the payment of a fine for overloading.

Point 2 and 3. The fine imposed against the vehicle should not be assessable against the plaintiff herein, the conditional vendor, for the following reasons:

Section 5 of the Uniform Conditional Sale act (Pamph. L. 1919, ch. 210) provides as follows:

“Every provision in a conditional sale reserving property in the seller, shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy, a lien upon them before the contract or copy thereof shall be filed as hereinafter provided, unless such contract or copy is so filed within ten days after the making of the conditional sale.”

The state is not such a lienholder, purchaser or attaching creditor as would take it out of the scope of the Uniform Conditional Sale act, and further, that in view of having filed the contract in the county where the chattels were first delivered for use of the buyer, within ten days after the making thereof, any claim, lien or alleged lien acquired within that ten-day period is subsequent to the rights of the conditional vendor. This point lias been definitely decided in the case of Bloomingdale v. Cook, 8 N. J. Mis. R. 824, wherein the court says:

“That a seller filing his conditional sale contract within ten days after the execution thereof, has absolute protection for such period although intervening parties purchase or a levy is made before filing.”

Admitting, for the purpose of argument, that the state is such a lienholder as would bring it within the scope of the Uniform Conditional Sale act, then any rights of the state against the vehicle are subordinate to the rights of the conditional vendor in view of the fact that the testimony showed conclusively that the contract was filed within ten days after its execution. In the event that the question be raised regarding the failure to refile in view of a removal of the chattels from Union county to Warren countjq I desire to cite the case of Hare & Chase v. Tomkinson, reported in 129 Atl. Rep. 396, wherein in an opinion by Mr. Justice Katzenbaeh, speaking for the Supreme Court, says:

“The word 'removal* in the New Jersey statute [referring to the Conditional Sale act] does not mean a mere bringing of the truck within the territorial limits of New Jersey. If this were the law, then no seller who had sold in some other state an automobile upon the installment plan, with reservation of title, could have his rights protected under the agreement by which the automobile was sold against a New Jersey creditor if the automobile was brought within the State of New Jersey.”

At page 398, Mr. Justice Katzenbaeh makes an important assertion which I think is entirely dispositive of the question here involved:

“It seems to me that by fixing the situs of the truck in Pennsylvania * * * a removal to New Jersey within the meaning of the statute could only be accomplished by the buyer forming, first, an intent in his mind to remove the truck to New Jersey; and secondly, actually removing the truck to some place in New Jersey, which the buyer fixed as a New Jersey situs of the truck. It is like a change of domicile. A change of domicile can only be accomplished by a person intending, first, to change his domicile, and secondly, actually changing it. The two things must concur.”

By no stretch of the imagination can the court possibly come to the conclusion that there was, first, an intention to change the situs, and secondly, an actual change from Union count}' to Warren county. The detention of the vehicle in Warren county was not as a result of an intention by any of the parties to the conditional sale contract that the vehicle remain there, but was actually an enforced detention by the authorities.

Point 4. General Motors Acceptance Corporation has the right, by reason of its conditional sale contract, to maintain replevin proceedings.

This point has been decided by the case of General Motors Acceptance Corporation v. Smith, above referred to, wherein the court states:

“An absolute legal title to a chattel is not required to maintain a replevin action as held by the trial judge in the present case.”

A special property in the chattel is all that is required to maintain an action in replevin as pointed out by Mr. Justice Kalisch in the opinion written by him in the ease of Conlen v. Lemmerman, 87 N. J. L. 84. This special property the plaintiff had in the present case.

Another point that should be decided, is as to the question of the garage lien claim for storage. I think this question is sufficiently answered by the point raised throughout this memorandum, in addition to which I desire to submit the following excerpt from Pamph. L. 1925, ch. 33, p. 96, wherein it is stated:

“That all persons * * * engaged in the business of keeping a garage * * * at the request or with the com sent of the owner or his representative, whether such owner be a conditional vendee or mortgagor remaining in possession or otherwise, has a lien upon such motor vehicle * * * provided, however, that such lien shall not be superior to, nor affect any lien, title or any interest of any person or corporation held by virtue of a prior conditional sale or a prior chattel mortgage properly recorded.”

Point 5. The question has been raised whether or not this case comes within the prohibition of section 121 of the District Court act which states:

“No replevin shall lie in the ease of distress for any tax, assessment or fine to be collected or levied in pursuance of any law of this state, &c.”

This section does not apply to the case of taking of goods of a person who is in nowise subject to the tax. Noyes v. Finneran, 12 N. J. L. J. 216. If it had been the legislative purpose to apply this rule to the present case the statute would have been more comprehensive. The owner, or finance company in this case, not being the owner contemplated in the Motor Vehicle act brings it within the terms of one who is in nowise subject to the tax and, consequently, not within the prohibition contemplated by section 121 of the District Court act. Rockefeller v. Lees, 51 Id. 140.

No damages were proved at the trial.

I find the right to possession of the vehicle in question in the plaintiff as against J. Eussell Doyle, sheriff of the county of Warren, and Hayes Motor Company, a corporation, and John Doe, the one in possession.


author: Peb Cubiam.

text:
    EMIL V. MATHIS, PETITIONER-DEFENDANT, v. JAMES REES, RESPONDENT-PROSECUTOR.
    Submitted January 26, 1934
    Decided March 28, 1934.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Walter 8. Keown.

    For the defendant, Wilbert V. Pike.

   Peb Cubiam.

This matter is before the court on the return of a rule to show cause why a writ of certiorari should not issue to review a determination of the Court of Common Pleas of Camden county, on appeal thereto from a determination of the deputy commissioner of labor in a workman’s compensation case.

It is conceded that the respondent Mathis was injured by accident in the course of his work as an automobile mechanic on September 2d, 1931, and that, in consequence of such injury, his right leg was amputated. The sole question raised by the reasons filed is that the testimony showed that defendant was not an employe of the prosecutor, but that defendant and prosecutor were partners in the conduct of the business, in the course of which defendant suffered his injuries.

The prosecutor, Bees, and the defendant, Mathis, both testified without equivocation that Mathis was at all times an emplojre of Bees, and that, at no time, was there a partnership relation. The business was conducted under' the name of “Rees and Mathis,” as appears from the sign over the place of business, and from bill heads and other exhibits. This is explained by the two persons named as having been done for the benefit of Rees, inasmuch as Mathis was widely known throughout Camden county and Rees was not so known. Mathis testified that he readily consented because he was desirous of securing employment and was anxious to help Rees in any proper way. It appears from the testimony that Mathis lent money to Rees to buy the business property and that Rees gave him a first mortgage thereon, a part of which has been repaid. Mathis made no contribution to the partnership, all of the money being put in by Rees. The business bank account is and always has been in the name of Rees only, and cheeks were signed only by him. The other exhibits were signed only by Rees, such as an application to the department of motor vehicles for a gasoline dealers’ license for “Rees & Mathis,” which was signed only by Rees, under the following: “This application must be signed by person, or officer of firm owning above business. James Rees.” The insurance covering liability to employes was issued to Rees only, in his name. No paper bears the signature of Mathis, except as stated, that the business was conducted under the name of “Rees & Mathis.”

There can be no doubt that as between prosecutor and defendant there was no partnership, and that Mathis was an employe of Rees. We think that prosecutor’s testimony does not suffice to overthrow this conclusion. If any false impression was created by the use of Mathis’ name in the manner stated, Rees cannot avail himself of it, and we are not dealing with a question of Mathis’ liability to some-person who may have extended credit on the strength of Mathis’ name as a partner, or other liability claimed to have been assumed by Mathis by reason of the use of his name. We are concerned only with the relationship between Mathis and Rees.

The insurance carrier asserts that as to it the conduct of Mathis creates an estoppel, and that having created the impression that he was a partner he cannot now be heard to deny it; and that the insurance carrier may assert such defense. We think this is not so. As above stated, the testimony shows that there was no partnership, and that there was no holding out of the parties as such partners. Finding such to be the fact, by the clear weight of the testimony, it is unnecessary to determine whether or not the insurance carrier might have the benefit of this claim of estoppel, if it was raised in the reasons for reversal.

The rule to show cause is discharged, with costs.


text:
    BERNSTEIN FURNITURE COMPANY, PROSECUTOR, v. ISABELLA KELLY, DEFENDANT.
    Submitted January 27, 1934
    Decided March 27, 1934.
    Before Justices Case, Bodine and Donges.
    For the prosecutor, Collins <& Corbin (Edward A. Markley and Charles W. Broadhursl).

    For the defendant, David Boskein.

   The opinion of the court was delivered by

Bodine, J.

The prosecutor seeks a writ of certiorari to review an order of the Essex County Court of Common Pleas reversing an order dismissing a petition for compensation filed with the workmen’s compensation bureau.

The defendant’s husband died while at work in the prosecutor’s business. The proofs indicate that the immediate cause of death was heart failure, whether due to a chronic ailment or an accident arising out of the employment need not now be determined. The bureau found that the death was not due to an accident arising out of the employment. This finding was reversed by the Court of Common Pleas, relying upon Standard Water Systems Co. v. Ort, 10 N. J. Mis. R. 659; 160 Atl. Rep. 523. That case was reversed in the Court of Errors and Appeals, 110 N. J. L. 586; 166 Atl. Rep. 335.

It seems to us from the record that a debatable question is presented as to whether death was due to natural causes or to an accident arising out of the employment. The bureau, after the reversal by the Court of Common Pleas, made an award of compensation.

The writ may issue.