text:
    CHARLES DE FAZIO, Jr., PLAINTIFF-APPELLANT, v. THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, ETC., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 26, 1951 —
    Decided March 13, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Anthony J. Armore argued the cause for the appellant (Mr. Samuel J. Davidson, attorney).

      Mr. E. Norman Wilson argued the cause for the respondent (Mr. Dominiclc B. Binaldi, attorney).
   The opinion of the court was delivered by

Jayne, J. A. D.

The appendix in this case contains a stipulation from which the material factual events are collected. It was upon the same agreed statement of facts that this action was submitted to the Hudson County Court for determination without a jury. The final judgment of no cause for action is here impugned.

The City of Hoboken is governed in pursuance of the adoption of the commission form of government and the Civil Service Law. On May 23, 1947, Mr. Otmar J. Pellett occupied the office of assistant corporation attorney in the law department of the city established by ordinance on June 1, 1943. On May 13, 1947, new commissioners were elected, and after the organization of the group, the Director of the Department of Eeveime and Finance submitted to the commissioners the appointment of the appellant, Mr. Charles De Fazio, Jr., to a position denominated as assistant city attorney. On May 23, 191-7, the appointment was by a resolution of the commissioners ratified and confirmed.

On June 3, 1947, the commissioners enacted an ordinance creating the position of assistant city attorney and vested the appointing authority in the Director of Eevenue and Finance. At a regular meeting held on June 10, 1947, the commissioners received from the Director of Eevenue and Finance a communication bearing date June 4, 1947, announcing his appointment of the appellant to the position of assistant city attorney at an annual salary of $6,250 payable semi-monthly.

To effectuate the program it was evidently deemed prudent to repeal the former ordinance of 1943 by which the position of assistant corporation attorney occupied by Mr. Pellett was originated. To that end an ordinance was adopted by the commissioners on June 3, 1947, to become effective June 14, 1947, repealing the former ordinance.

It is noticed that the commissioners determined that the former ordinance should be repealed “for reasons of economy as well as the resulting efficiency from a re-organization of the law officers of lhe Oily.”

In the situation, the favorable consideration of the Civil Service Commission was required. Camden v. Civil Service Commission, 129 N. J. L. 354 (Sup. Ct. 1943), affirmed 130 N. J. L. 532 (E. & A. 1943). The action of the city commissioners and of the Director of Eevenue and Finance was by the prompt appeal of Mr. Pellett appropriately brought to the attention of the Ch il Service Commissioners, who rendered a decision on September 9, 1947, from which we extract this quotation: “All that has been done by the City in this case has been to change the designation of the individuals who are to perform the legal work of the city. A mere change in title or designation of the agency, individual or individuals who are going or who are to do the legal work of the City can have no effect upon the rights or status of employees in the classified civil service. If economy is sought a reduction in forces will accomplish the ends sought.”

The Civil Service Commission ordered “that the action of the Board of Commissioners, the Director of the Department of Revenue and Finance, or the City Attorney of the City of Hoboken, or of any of them, in removing or dismissing from or discontinuing the services of Otmar J. Pellett as Assistant Corporation Attorney or Assistant City Attorney, effective on or about May 23, 1947, be and the same is hereby set aside and the said Board of Commissioners, the Director of the Department of Revenue and Finance and the City Attorney or any or all of them be and they are hereby directed to restore the said Otmar J. Pellett to the pay and title given or undertaken to be given to Charles J. De Fazio, Jr., effective as of the date of his removal or discontinuance from such service.”

The writ of certiorari by which the order of the Civil Service Commission was transported for review by the Supreme Court was dismissed. Hoboken v. Civil Service Commission, 137 N. J. Law 72 (Sup. Ct. 1948). The judgment of the Supreme Court was affirmed, 137 N. J. Law 728 (E. & A. 1948). In the opinion of the Court of Errors and Appeals may be found the following observation: “In fact, the purpose seems to have been solely to defeat the Civil Service Law and place in office a new incumbent.” So, it may be said that the displacement of Mr. Pellett as assistant corporation attorney by the present appellant as assistant city attorney has been definitely adjucated to have been improper.

A judgment awarding Mr. Pellett $10,275 salary from May 15, 1947, to January 1, 1949, was affirmed. Pellett v. Hoboken, 4 N. J. Super. 259 (App. Div. 1949). Subsequent events of interest but of no relevancy to the present appeal are revealed in Pellett v. Dep’t. of Civil Service, 10 N. J. Super. 52 (App. Div. 1950).

It is acknowledged that from May 23, 1947, until his resignation on December 31, 1947, the appellant acted as assistant city attorney and rendered such services for the city as were assigned to him by the city attorney.

The present action was prosecuted by the appellant to recover from the city the sum of $3,801.37 for the services he performed as such assistant city attorney calculated upon the basis of an annual salary of $6,250. Counsel for the appellant did not at the argument undertake to sustain any legitimate claim for compensation for services rendered between May 23, 1947, and June 4, 1947.

The appellant's alleged cause of action is predicated upon the hypothesis that he was a de facto occupant of the position and as such entitled to compensation for the services he performed for the city in that capacity.

The definition of a de facto official composed by Chief Justice Butler upon an exhaustive research of the authorities manifested in his decision in State v. Carroll, 38 Conn. 449 (Sup. Ct. of Errors 1871), has had a remarkably concordant decisional lineage. A general discussion of the definitions and the distinctions drawn by the courts between de jure officers, de facto officers, and intruders or usurpers may be found in Throop, Public Officers, c. XXVII, sec. 622, el seq.; Mechem, Public Officers, sec. 315, ,et seq., and Constaniineau, De Facto Doctrine, sec. 21, et seq.

If we were to assume that the appellant occupied unqualifiedly the legal status of a de facto officer, our investigation of the pertinent authorities reported in the state jurisdictions generally relative to the right to recover compensation for services so performed would disclose that such pronouncements may be assembled in four general groups. The largest group is comprised of those decisions which adhere to the rule that the right to compensation is an incident to the legal title to the office. The second largest class includes those cases in which the de facto officer in good faith and with a reasonable and conscientious belief of his authority performs under color of title the duties of the office. The third collection relates to cases in which there is no other claimant, whereas the fourth cluster embraces cases in which there is another who is rightfully entitled to the office and to its emoluments. Vide, Annotation, 93 A. L. R. 258.

We need not, however, embark upon a diversified discussion of the adjudications in general-. For present purposes we have in our own jurisdiction such relevant authorities as Erwin v. Jersey City, 60 N. J. Law 141 (E. & A. 1897), reversing 59 N. J. Law 282 (Sup. Ct. 1896); Stuhr v. Curran, 44 N. J. Lato 181 (E. & A. 1882); Meehan v. Freeholders of Hudson, 46 N. J. Law 276 (Sup. Ct. 1884); Dugan v. Farrier, 47 N. J. Law 383 (Sup. Ct. 1885), affirmed 48 N. J. Law 613 (E. & A. 1886); Brinkerhoff v. Jersey City, 64 N. J. Law 225 (E. & A. 1900); Blore v. Board of Freeholders, 64 N. J. Law 262 (E. & A. 1900); Gaskill v. Atlantic City, 89 N. J. Law 269 (E. & A. 1916); McArt v. Town of Belleville, 97 N. J. Law 396 (Sup. Ct. 1922); Handlon v. Town of Belleville, 4 N. J. 99, 109 (1950).

Fundamentally, it must be realized that the doctrine pertaining to the activities of de facto officers had its origin in the policy of the public interest and protection. Not unlike many other beneficial doctrines of the law and indeed advantageous legislation, it is not permitted to be utilized for mischievous purposes.

Tlie present case has a factual setting within the logical periphery of the distinguishing principle which becomes apparent upon the comparison, for example, of the decisions in the Erwin case, in which the directed verdict for the city was reversed, and in the Gaslcill case, in which the directed verdict for the municipality was affirmed. The pivotal point is whether the appellant acted in good faith within the legal acceptation of that term. Good faith has been defined to consist of an honest intention to abstain from taking an unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of notice, information or belief of facts which would render the transaction or undertaking mischievous and insidious. 1 Bouvier, Law Diet. (Bawle’s 3d ed.) 1358.

While we find no reason to cast any derogatory reflection upon the conduct and deportment of the appellant, we measure his faith, good or bad, within the ambit of the controlling principle, by the knowledge he had of the course of events.

Here the appellant was fully aware on May 23, 1947, that there was the position of assistant corporation attorney lawfully existing and lawfully occupied by Mr. Pellett. He doubtless perceived that the new board of commissioners exhibited a propensity to do some “house cleaning.” Initially the appellant must have realized that he was vainly attempting to inhabit a fabulous and legally coexistent official position. Next he watched the city commissioners metamorphose the position of assistant corporation attorney by disguising it as assistant city attorney. He thus moved into a position already tenanted by Mr. Pellett. Are we to assume that there were then both a de jure and a de facto occupant of the same position, or two de facto incumbents? Be common law rule, 3 McQuillin, Mun. Corp., sec. 12.102, on p. 381; 46 C. J., 1055, sec. 368; 43 Am. Jur. 226, Public Officers, sec. 473.

The appellant immediately learned that the Civil Service Commission would not in the circumstances approve the payment of his salary. B. S. 11:22-20; 11:21-1. Proceedings before the Commission were promptly inaugurated, a hearing -was held on July 17, 1947, and a decision rendered on September 9, 1947. The appeals from the order of the Civil Service Commission to the former Supreme Court and to the Court of Errors and Appeals followed. The propriety of the appellant’s appointment was throughout the period of his services to his knowledge constantly in controversy.

We express no doubt of the validity of the appellant’s acts in their relation to the public, but we are of the opinion that his status is in principle in its relation to the right to recover salary from the city analogous to that of Gaskill in his action in which Justice Trenchard stated: “In the present ease there was no vacancy either in law or in fact, and the plaintiff knew that his claim to the office was seriously chailenged by. the incumbent. Indeed, he knew before the election that if elected his right to the office and its salary would be questioned. * * * we do not attribute any such fraud or sinister conduct (Meehan v. Freeholders of Hudson, supra) to the plaintiff. But, concededly, he knew that Mr. Keffer disputed his title. Concededly, he participated in the forcible ousting of Mr. Keffer.”

In legal rationale the appellant in the prosecution of the present action may well be actually and theoretically classified as an intruder to whom the law denies a right to recover salary.

To sustain the right of a claimant to recover the emoluments of an office or position in circumstances such as exist in the present case would be to confer unqualified judicial approbation to the adage “to the victor belong the spoils.” It seems apparent that the appellant felt the pulse of chance in the twilight of a new day and hopefully and adventurously enlisted in the experiment. The taxpayers ought not be obliged to indemnify him against the adventitious loss. We pause also to explain that this is not a case in which the appellant had been duly installed, thereafter dismissed, and continued to perform his duties pending the determination of the appeals. Cf. Freudenreich v. Mayor, &c., Fairview, 14 N. J. Misc. R. 804 (Sup. Ct. 1936).

The statute (B. S. 40 :11 — 7) has not eluded our attention. We decline to so construe it to give it application to the circumstances of the present case. The appellant does not have the requisite status of a de facto official contemplated by the enactment. The statutory provision (B. S. 11:21 — 2) has no application whatever to the subject matter of this litigation.

The judgment of the Hudson County Court is affirmed:


source: Caselaw Access Project

author: Francis, J. 0. C.

license: Public Domain

text:
    THE CITY OF NEWARK, A MUNICIPAL CORPORATION OF NEW JERSEY, PLAINTIFF, v. NEW JERSEY TURNPIKE AUTHORITY, A CORPORATION OF NEW JERSEY; CONSTRUCTION AGGREGATES CORPORATION, A CORPORATION OF DELAWARE; PETER KIEWIT SONS’ CO., A CORPORATION OF NEBRASKA, DEFENDANTS.
    Superior Court of Now Jersey Chancery Division
    Decided January 19, 1951.

      Mr. Charles Handler, Corporation Counsel, attorney for the plaintiff (Mr. George B. Astley, of counsel).

      Mr. Ward J. Herbert, attorney for the defendants.
   Francis, J. 0. C.

(temporarily assigned). The New Jersey Turnpike Authority was authorized by the Legislature to construct a turnpike across a portion of the State of New Jersey from the Nevr York State line to the Delaware River at Lower Penns Neck Township, Salem County. (N. J. 8. A. 27:23-23; L. 1949, c. 41). Pursuant to this authorization, the Authority is now engaged in building the turnpike, a portion of which will run through the City of Newark. The Newark segment, according to the plan, will run from Bound Creek at the Essex-Union County line, generally north to Port Street, where there will be an interchange; then it will run northeasterly to the Passaic River at or near Point No Point, at the Essex-Hudson County line. At Raymond Boulevard, there will be another interchange. These two interchanges are separated by about two miles.

On August 16, 1950, the Authority awarded the contracts for the construction of this portion of the turnpike and the interchanges to Construction Aggregates Corporation and Peter Kiewit Sons’ Company. These contracts call for-the building of the roadway upon a base of earth.

The City of Newark filed a complaint seeking an injunction to prevent (1) the construction of one of the two interchanges, namely, the one proposed for Raymond Boulevard, and (2) the use of dirt fill in building a 7,100-foot segment of the roadway between the two interchanges.

In attacking these two aspects of the work of the Authority, the complaint charges that the Raymond Boulevard interchange is unnecessary and constitutes an excessive taking of land which is valuable for future development as industrial sites. (Par. 11 (e)). And it charges that the use of dirt fill in this 7,100-ioot segment of the roadway is neither practicable nor standard construction; that the standard method of construction is steel structure or reinforced concrete with an open base, designed to preserve all existing public streets and all paper streets set out on the master plan for the future development of the city; and that the use of dirt fill will require a much broader base than a steel or reinforced concrete structure, resulting in an excessive taking of land valuable for potential industrial development. It then alleges that the conduct of the Authority in pursuing the criticized plans constitutes a “palpable abuse of power.” (Par. 10.)

The complaint alleges also that, for various reasons, to be discussed herein, the New Jersey Turnpike Authority Act of 1948, as amended (N. J. 8. A. 27:23-1), is unconstitutional and that in any event the power conferred thereby with respect to the taking of public streets for turnpike purposes is subordinate to that of the city under the Home Rule Act (B. S. 40:67-1, as amended L. 1947, c. 365, p. 1176).

The Authority has moved for summary judgment in its favor on the pleadings. Voluminous affidavits and exhibits have been submitted on the motion by it and by the city.

I.

The Method oe Construction and the Interchanges

Basically the controversy here arises out of the projected use of dirt fill in the 7,100-foot section of the turnpike between the Port Street and the Raymond Boulevard interchanges, and out of the construction of the Raymond Boulevard interchange. It. is conceded by the city that no challenge is made to the location of any part of the road. The test to be applied in determining the legality of the action of the Authority in this respect is clearly'laid down in the recent case of Mayor, etc., of Elizabeth, v. N. J. Turnpike

Authority, 7 N. J. Super. 540 (Ch. Div. 1950). There Judge . Preund said:

“In the instant case, the Legislature of New Jersey has by statute authorized the construction of the turnpike between two terminal points through designated counties. The Turnpike Authority is an administrative agency acting for the state and is vested with discretion in the selection of the particular route which the proposed turnpike will traverse. When public agencies are vested with discretionary power, a court of equity will not interfere unless there has been a plain and palpable abuse of discretion. A mere difference of opinion is not sufficient to justify the substitution of the court’s discretion for that of the duly constituted authority vested by the Legislature.”

The application of this test to the present controversy leaves little room for difference of opinion as to the propriety of intervention by the court.

A substantial portion of plaintiff’s brief is devoted to a discussion of the many eases wherein it has been declared that a motion for summary judgment should not be granted where the affidavits present a factual controversy on the material issues'in the action. (Cross v. Margolis, 136 N. J. L. 453 (Sup. Ct. 1948); Lipari v. Hudson County, 135 N. J. L. 359 (Sup. Ci. 1947); Berger v. Interstate Building and Loan Assn., 121 N. J. L. 507 (E. & A. 1939); Kaplan v. Catlett, 121 N. J. L. 201 (E. & A. 1938); Datz v. Barry, 115 N. J. Eq. 84, pp. 86, 87 (E. & A. 1933). Thereafter, reference is made to the various affidavits submitted by officials of the Authority and the city, by various expert road construction engineers and real estate experts for the Authority and by a real estate expert, the chairman of the City Central Planning Board, the traffic engineer of the Department of Public Safety, and the chief engineer of the city.

These affidavits in their essence present a contrariety of opinion as to whether dirt fill is standard construction, advisable and satisfactory for turnpikes, and particularly this turnpike, and as to whether the Raymond Boulevard interchange is necessary. The chairman of the Authority, its chief engineer, and independent consulting engineers of wide experience in tlie field of highway construction, all express the opinion that dirt fill represents proper, advisable and more aesthetic construction for this roadway; that it represents a saving of almost $11,000,000 over steel; that an estimated 33.000 tons of scarce steel would be required to meet plaintiff’s construction demand; that construction similar to that proposed by the Authority was used in other well-known highways; and that trafile conditions in Newark, as part of the metropolitan area, with its proximity to New York, require the two interchanges.

These affidavits further assert that there will be little disturbance of existing streets. Wilson and Allegheny Avenues will he preserved by bridges over them. The same is true of Delancey Street, now a paper street. Only two streets now in use will he closed. They aro: (1) Hyatt Avenue, a short dead-end street, which runs from Wilson Avenue for a short distance past the new turnpike, and (2) Rutherford Street, which the map shows is to be partially relocated in a manner which does not seem likely to cause serious inconvenience.

The affidavits of the traffic engineer and the chief engineer of Newark, on the other hand, assert that “it is my experience and considered opinion in this matter that the proper construction as to type for the proposed toll highway through Newark is one of overhead steel or reinforced concrete.” The reasons advanced are that “planned” streets would be “barred by a dirt fill structure,” the use of the present streets could be more conveniently arranged by use of “an overhead highway of steel or reinforced concrete, the steel structure would lessen the taking of land, and that dirt fill would tend to impair the future development of the area through which the roadway would pass.

These affidavits further recite that the present traffic needs of Newark do not require such a turnpike nor do they warrant the construction of an interchange at Raymond Boulevard. The opinion is expressed that the “proper point of entry and exit” is at Port Street and that the interchange at Raymond Boulevard is “unnecessary and unreasonably planned.” No traffic statistics are furnished nor are any facts recited to support the view concerning the lack of need for the Raymond Boulevard interchange, nor for the view that only one should be built and that one at Port Street.

In an action of this nature, the existence of a contrariety of opinion or of a factual dispute of the character shown here, is not the determining factor on a motion for summary judgment. The question is: Do the affidavits and exhibits show a contrariety of opinion or definite facts such as would create an issue on which a finding might be made that the Authority was guilty of a palpable abuse of discretion. In my judgment, no such genuine issue exists here either by virtue of the plaintiff's pleadings, affidavits and exhibits alone, or because of any conflict with those of the defendants {Rule 3:56-3).

If differences of opinion such as those presented, no matter with what good faith they were offered, are to be regarded as a basis for a trial on the issue of manifest abuse of authority, the court would have virtual veto power over this legislative agency. Such power does not exist; it is neither desired nor desirable. The limit of the jurisdiction of the court is in the field of manifest abuse by the Authority of its legislatively delegated power. The court cannot become a road builder; it cannot substitute its judgment for that of the Authority.

There being no genuine factual issue on the subject of palpable abuse of authority, the motion for summary judgment must be granted, unless the contention is sound that the enactment creating the Turnpike Authority is unconstitutional or that the action of the Authority is invalid for any of the reasons advanced.

II.

Asserted Invalidity oe the Taking op Existing and Potential Public Streets oe the City op Newark

The city claims that the taking of existing and paper publicly-owned streets, without its consent, is invalid because contrary to 11. S. 40:67 — 1, as amended, and contrary to section 14 of the Turnpike Authority Act.

R. S'. 40:67-1, as amended, confers upon municipalities the authority to enact ordinances dealing with the ascertainment and establishment of the boundaries of all streets and highways within their coniines and regulating the use of such streets and highways generally.

Section 14 of the Turnpike Act provides:

"All * * * cities " * * and other political subdivisions and all * * * agencies * * * of the State of New Jersey * * * are * * * empowered to lease, lend, grant or convey to the Authority at its request upon such terms and conditions as the proper authorities of such * * * political subdivisions * * * (or) agencies * * * of the State may deem reasonable and fair and without the necessity for any advertisement, order of court or other action or formality, other than the regular and formal action of the authorities concerned, any real property which may be necessary * * * to the effectuation of the authorized purposes of the Authority, ineluding publio roads and other real property already devoted to public use.”

The argument of the invalidity of the taking of Newark’s public streets without its consent, is constructed on a base of the cited sections of the two statutes in combination with an interpretation by plaintiff of a portion of the opinion of the Supreme Court in New Jersey Turnpike Authority v. Parsons, 3 N. J. 235, 249 (1949).

In this case the Supreme Court, among other things, discussed section 5(j) of the Turnpike Authority Act (N. J. S. A. 27:23-5), which confers upon the Authority the right to acquire for the turnpike project by eminent domain any necessary land, “including public lands * * * highways or parkways, owned by or in which any county, city, borough, town, township, village, or other political subdivision of the (State of New Jersey has any right, title or interest * * In considering whether this section conferred the right to acquire public lands of the State of New Jersey by eminent domain, the court said:

“Reading the provisions of these two sections together, we do not construe Section 5 (j) as granting any power of general condemnation of property owned or held by the State. In the light of the detailed directions for the acquisition of state property by lease, loan, grant or conveyance contained in section 14 and the absence of a clear and unambiguous grant of authority to the Turnpike Authority to take state property by condemnation, we cannot properly infer the existence of the power of eminent domain as to state property in the Turnpike Authority.”

So the city maintains that since section 14 permits the acquisition of public lands of a municipality under the same conditions, the exercise of the right of eminent domain against it is likewise not maintainable. The situations are not at all similar. The court was dealing only with the question of whether an agency or a creature of the State should be recognized as having the right by condemnation to take away land owned by the State itself and already devoted to public use. And it declared that such an anomalous situation should be recognized only where the enabling legislation showed a crystal-clear intention to grant such power.

However, no such'basic problem exists in the case of a municipality. Here there can be no doubt that the Authority, as a creature of the State, with a legislative mandate to construct this turnpike and with only a simple and unadorned power of eminent domain, could acquire the lands of a subordinate branch of the government by this means. If this were not so, and the consent of the municipality was necessary for the acquisition of its lands, then the municipality would hold veto power and the part would rule the whole. Plainly the Legislature intended that any possible conflict in this field should be resolved in favor of the Authority. (Sec. 21).

In any event, there is a “clear and unambiguous grant” of such authority so far as municipalities are concerned. Section 5(j) specifically prescribes that public lands or highways owned by any city may be so acquired.

The intention of the Legislature in the application of section 14 to municipalities is evident. The section was designed to encourage the acquisition of municipal lands by agreement where possible and to facilitate such acquisition bjr requiring only a minimum of formalistic procedure. What other implication can flow from the words sanctioning consummation of the transaction “notwithstanding any contrary provision of law” and “'without the necessity for any advertisement, order of the court or other action or formality ?”

III.

Charge of Failure To Grant a Hearing to the City on the Method of Construction and Raymond Boulevard Interchange

The city asserts that it made known to the Authority, prior to the letting of the construction contracts, its opposition to the dirt fill construction and to the Raymond Boulevard interchange. And it claims that its demand for a full hearing on the matter was not complied with. Therefore it urges that the action of the Authority in executing the contracts and going ahead with the work is illegal.

The affidavits indicate that on November 11, 1949, the city appointed a committee to represent it and to study the project. On December 6, 1949, the committee attended a public hearing conducted by the Authority at the Essex County Hall of Records. The typewritten record thereof, which was submitted by the city on this motion, consists of 21 large pages, and conlains an explanation by Authority officials of the project as it was planned through Newark, as well as comments and questions by a number of persons present representing the county, the city and the Public Service Company. In this connection, it is interesting to note that Newark’s chief engineer, L. Dudley Coles, commented on the two proposed interchanges as follows:

“The two interchanges, one at Port Street, and one at Raymond Boulevard, seem to be sufficient and I have no doubt that they are closer than any other turnpike has interchanges, because I have ridden the Pennsylvania Turnpike several times and I wondered whether my car would go the 18 or 30 miles between interchanges without service.”

On August 10, 1950, another public hearing was held' at the commission conference room at the City Hall, Newark. Counsel for the city submitted the stenographic transcript thereof, consisting of 177 typewritten pages. The conference was attended by three of the city commissioners of Newark and a number' of other officials. My examination of this record shows that every phase of the argument presented in this action was thoroughly presented there on behalf of the city. At the conclusion of the meeting, the representatives of the Authority agreed to give further consideration to the plaintiff’s opposition.

The affidavits set forth that the Authority did consider the problems raised, and consulted with and obtained further reports from its engineers with respect to them. And it is further asserted therein that the members of the Authority unanimously agreed to proceed with their plans.

While some of the statements made in these affidavits are in dispute, it is difficult to understand how it can be argued successfully that the city was not granted a- hearing. The record is plainly to the contrary.

In connection with the claim of right to hearing, it seems necessary to express a further conclusion with respect thereto. There is no provision in this legislation which requires that a public hearing be given to a municipality or to a private individual on the problems of the method of construction or the property to be taken or the course to be followed by the roadway. These matters are committed to the informed judgment, experience and discretion of the Authority, and the only limitation imposed by the courts is that there be no palpable abuse of this power. Therefore whether public hearings or conferences are to be held on such subjects, is a matter of policy for the Authority with which the court cannot be concerned. (Nichols on Eminent Domain (3rd ed. 1950), vol. I. pp. 376, 377-380).

Oí course, a private citizen or a municipality is entitled to l)o paid just compensation for any property taken to construct the turnpike. And the courts are always ready to assure a full and fair hearing to that end.

IV.

Change of Unconstitutionality of Act for Failure to Contain Standards and to Impose Some Limitation on the Power of Eminent Domain

Plaintiff contends that the act is void because the Legislature failed to set forth any standards to be followed by the Authority in selecting the course of the turnpike, the amount of property to be taken, its cost, the kind of highway it should be with respect to width, etc. In support of the position, reliance is placed on state by Van Riper v. Traffic Telephone Workers Federation of New Jersey. 2 N. J. 335, at p. 352 et seq. (1949). There the court said:

“While there is no doubt that the Legislature may delegate to an administrative body the, exercise of a limited portion of its legislative power with respect to some specific subject matter, such delegation of legislative power must always prescribe the standards that are to govern the administrative agency in the exercise of the power thus delegated to it.” (p. 353.)

Wiiliin the limits reasonably open to it in the matter of creating and authorizing an agency to construct a highway project, the Legislature has complied with this constitutional prohibition against unlimited delegation of its power.

In section 1 of the act, the character and purposes or the project are set forth. They are to provide for “the construction of modern express highways embodying every known safety device including center divisions, ample shoulder widths, long-sight distances, multiple lanes in each direction and grade separations at all intersections.” It is provided that the credit of the State is not to be pledged by the Authority (sec. 2); the issuance and nature of the bonds to finance the project are regulated (secs. 2, 7, 8, 9, 10, and 11) ; the words “project” and “turnpike project” are defined; the general and incidental powers of the Authority are prescribed (secs. 5, 6), procedure under which the exercise of the right of eminent domain may be exercised is specified (see. 5(j)). If is given the right to enter upon any lands for purposes connected with the project, but it must make reimbursement for any damage done (sec. 6). Tolls and revenues are regulated (sec. 9) and the turnpike is required to be kept in good condition (sec. 14). So far as eminent domain is concerned, the authority given is to acquire thereby any land “which it may determine is reasonably necessary for any turnpike project” (sec. 5(j)). Finally, the Legislature specified the point of origin and terminus of this particular project.

In my judgment, it would not be feasible to require more certain standards than those now prescribed. If it were necessary for the Authority to formulate specific plans as to the course of the turnpike through the various municipalities, and as to the manner and method of construction and then seek legislative approval thereof, there would be no purpose in creating the Authority; the Legislature might just as well act itself .in the entire matter. The prohibition against abdication of legislative power in favor of an agency was never intended to extend to such administrative details.

Any other grounds urged in opposition to the motion are without substance or relevancy.

Eor all of the foregoing reasons, the defendants’ motion for summary judgment will be granted.


author: Grimshaw, J. S. 0.

text:
    VICTOR STEPHENS, ET AL., PLAINTIFFS, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, A CORPORATION OF THE STATE OF MASSACHUSETTS, ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided March 30, 1951.

      Messrs. Rothbard, Harris <& Oxford, attorney's for plaintiffs.

      Messrs. McCarter, English \& 8iuder> attorneys for defendant John Hancock Mutual Life Insurance Company.

      Mr. Morton Stavis, attorney for defendants UOPWA, James H. Durkin and Bernard J. Mooney.
   Grimshaw, J. S. 0.

This is a motion by the plaintiffs to modify an order of this court, made on October 6, 1950. The provision of the order which the plaintiffs seek to modify is as follows:

“Ordered, that pending the further order of the Oourt, the restraints heretofore issued in this action by order of this Court dated May 24, 1950, are hereby vacated as to all District Agents who have after March 1, 1950, executed authorization cards to the United Office and Professional Workers of America in the form annexed as Exhibit A to the defendant union’s notice of motion dated September 15, 1950, * *

The modification of the quoted paragraph which plaintiffs seek, is one which yvould restrain payment to the defendant union of the dues of district agents who, subsequent to the execution of a check-off authorization, and alter March 1, 1950, notified the employer to discontinue the deduction of dues.

Simultaneously with the signing of the order just referred to, there was also signed a second order, which provided, among other things, as follows :

“Ordered, that pending the future Order of the Court the restraints heretofore issued in this action by order of (his Court dated May 24, 1950, are hereby vacated in their entirety and it is further
ORDERED, that pending the Further Order of the Court the defendant John Hancock Mutual Life Insurance Company pay over to the defendant United Office and Professional Workers of America an amount equal to all funds held or to be held by it as a result of deductions made or to be made under the Collective Bargaining Agreement dated July 1st, 1949, except for such deductions made respect to any District Agent who has heretofore given (he notice to the defendant Company hereinafter described, with respect to the period after he had given such notice to the company; such notice being a notice to the company of his objection to tlie payment over to the defendant union of amounts checked off with respect to him,

Upon appeal both orders were affirmed by the Appellaie Division. An appeal to the Supreme Court from the affirmance of the second order has been taken by the plaintiffs. There has been no appeal taken from the affirmance of the first order.

In support of their application for a modification the plaintiffs have presented an affidavit in which it is set forth that certain district agents who executed check-off cards after March 1, 1950, have notified the insurance company of their desire to revoke those cards and have the company discontinue the deduction of any dues from their pay.

I am of the opinion ihat the modification of the order of October 6, 1950, as requested by the plaintiffs, may not be granted. Such a modification of the first order would, in effect, be a modification of: the companion order now on appeal io the Supreme Court, over which, as I conceive it, I have no control, pending the disposition of the appeal.

In the second place, the Appellate Division and the Supreme Court have both determined that this is not a class action and that the plaintiffs represent no one other than themselves. The persons whose rights are sought to be affected by this application are not parties to this proceeding and, until they are properly made parties, their rights may not be made the subject of adjudication, eithef interlocutory or final.

And, finally, not only did the Supreme Court in the case of Zaleski v. Local 401, United Elec., etc., Workers of America,. 6 N. J. 109 (1951), determine that there was not such a. showing of irreparable injury as to support the interlocutory injunction but it also pointed out that the persons concerned! could obtain the relief sought by resigning from the defendant union and terminating the obligation' on the part of the' company to continue the- deductions for union dues from-, their pay.

The motion to modify the order of October 6, 1950, will,, for the reasons above stated, be denied.


author: Frbtind, J. S. C.

text:
    THE NATIONAL STATE BANK OF NEWARK, AS SUCCESSOR TRUSTEE UNDER DEED OF TRUST OF EDWARD-GOODRICH ACHESON, DATED JULY 10, 1928, PLAINTIFF, v. MARGARET ACHESON STUART, ET AL., DEFENDANTS.
    Suiperior Court of New Jersey Chancery Division
    Decided May 23, 1950.

      Messrs. Pitney, Hardin «£ Ward (Mr. Donald B. Kipp appearing), for the plaintiff.
    Messrs. Stein, Slein <& Hughes (Mr. Richard V. Stein appearing), for the defendant, Margaret Acheson Stuart.

      Mr. Coleman Burke, for the defendant Lyall L. Stuart.

      Messrs. Marlin, cO Reiley, for certain adult defendants.

      Mr. William. H. Corbin, for guardians ad litem of all infant defendants.
   Frbtind, J. S. C.

The plaintiff, successor trustee under a deed of trust of Edward Goodrich Acheson, deceased, seeks, inter alia, construction of a provision of the trust agreement which reads as follows:

“For the purpose of determining what shall constitute corpus- and what shall constitute income- of the trust estate it is hereby - declared in respect to the shares of stock of Acheson Corporation hereby transferred that the net assets of Acheson Corporation at the date hereof (without regard to book value), including the shares of stock of Acheson Graphite Corporation held by Acheson Corporation and the shares of stock of any other corporation which may hereafter be received by Acheson Corporation or its successor in place of said shares of stock of Acheson Graphite Corporation, or in place of any shares from time to time substituted therefor upon any consolidation, merger, sale of assets, exchange of stock or reorganization of any character, apportionable to the shares hereby transferred shall be deemed and continued as corpus of the trust estate.”

The trustee held 800 shares of capital stock of Acheson Corporation, a Delaware corporation having an authorized capital of $1,000,000, divided into 10,000 shares of capital stock of a par value of $100 each. .Pursuant to the foregoing provision of the trust agreement, Ernst & Ernst, certified public accountants, valued the net assets of Acheson Corporation, as of July 10, 1928, the date of the agreement, at $13,617,471.02, so that the 800 shares held by the trustee were worth $1,089,397.68. Thereafter, in the year 1941, Acheson Corporation was dissolved, as a result of which the trustee in exchange for the 800 shares of Acheson Corporation stock received in liquidation, and credited to corpus, the sum of $1,473,744.81.

The defendant, Margaret Acheson Stuart, a daughter of the settlor, is the life beneficiary of the subject trust and is entitled to receive all the income therefrom during her life. By counterclaim, she asserts that the difference between the amount received by the trustee in liquidation of the shares of stock and the sum at which the shares were valued by the accountants in 1928 should be treated as income and be payable to her. The other defendants in this cause, 53 in number, are remote contingent-beneficiaries. The adult defendants have filed answers, admitting the allegations of the complaint and of the counterclaim of Margaret Acheson Stuart, and join in the prayers of her answer and counterclaim. The infant defendants appear by guardians ad litem; on their behalf a brief has been filed.

The question is whether the sum received in liquidation of the Acheson Corporation stock should have been treated as corpus or whether the excess over the valuation of the stock in 1928 should be treated as income, as contended by the defendant, Margaret Acheson Stuart.

Obviously, under the generally accepted definitions, the sum realized in liquidation of the stock was corpus. The defendants argue, however, that generally accepted definitions do not apply in this instance, because the pertinent provision of the agreement contains its own definition, the settlor specifying that the “net assets of Acheson Corporation at the date hereof (July 10, 1928) without regard to book value * * * shall be deemed and continued as corpus of the trust estate.”

It is quite evident that the settlor did not contemplate nor provide for the contingency of the liquidation of the corporation. However, he clearly intended that the actual value of the stock, rather than the book value, be considered as corpus. On liquidation the trustee received its proportionate share of the not assets of Acheson Corporation; such liquidation was not at book value. The fact that at the time of liquidation the net asset value of the stock was greater than the value as calculated 12 years earlier by the accountants does not, for the purposes of the trust, change the character of the net asset valuation. An accretion in an asset does not constitute income. By way of illustration, if the trust asset consisted of a parcel of real estate instead of shares of stock and the settlor provided that the net value of the property, instead of its assessed valuation, was to be considered corpus, in the event of a subsequent sale of the real estate at a price in excess of the value at which it was initially carried, could it be plausibly contended that the excess is income ? Certainly not. Moreover, if the net assets had decreased in value since 1928 and the sum received in liquidation been less than the initially established value, it is highly improbable that the life tenant would contend that she should pay the difference into the trust.

The entire sum received by the trustee in liquidation of the shares of stock, being in lieu of the stock, is corpus. The appreciation in the value of the asset between the establishment of the trust and the liquidation of the asset is not income and accordingly was properly considered as corpus by the trustee.

Judgment will be entered accordingly.


author: Haneman, J. S. C.

text:
    J. RAYMOND MURPHY, PLAINTIFF, v. STANLEY J. MORRIS, SIDNEY STARR, SOPHYE MORRIS, AND GLOUCESTER SPINNING CORPORATION OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided March 26, 1951.

      Mr. Barney B. Brown, attorney for plaintiff.

      Mr. Irvin M. Lichtenstein, attorney for defendants.
   Haneman, J. S. C.

This is a motion to dismiss the complaint on the following grounds: (1) the plaintiff is barred, having elected his remedy in a prior .suit in the Superior Court of New Jersey, Chancery Division, Camden County, entitled J. Raymond Murphy, plaintiff, v. Gloucester Spinning Corporation of New Jersey, defendant; (2) the action herein, insofar as it seeks rescission for fraud, was not timely brought; (3) the contract involved herein provides for arbitration and plaintiff is therefore relegated, in the event he has a cause of action, to submit to arbitration.

The amended complaint herein sets up plaintiff’s cause of action in 12 separate and distinct counts. Counts 1 to 6 inclusive seek recovery for money advanced by plaintiff to defendant Gloucester Spinning Corporation. Counts I, 8, 9 and 10 seek rescission of the contract entered into between the plaintiff and defendants Stanley J. Morris, Sidney Starr and Gloucester Spinning Corporation upon the alleged fraudu-' lent representations of the said Stanley J. Morris and Sidney Starr in inducing the plaintiff to enter into said contract, and recovery from Stanley J. Morris and Sidney Starr of the consideration paid to them for stock in said Gloucester Spinning Corporation. The 11th and 12th counts seek relief against certain actions of the said Stanley J. Morris and Sidney Starr in connection with the conduct and operation of the Gloucester Spinning Corporation.

On January 24, 1949, plaintiff commenced an action in the Superior Court of New Jersey, Chancery Division, against Gloucester Spinning Corporation, Docket No. C-664-48, in which he alleged that he was a stockholder in the named defendant corporation and a creditor by reason of having advanced certain stuns of money to the defendant corporation, and that the said defendant corporation was insolvent. This action sought the appointment of a receiver for the said Gloucester Spinning Corporation. In this action plaintiff was unsuccessful. Thereafter, the present action was commenced.

Although the complaint now filed is framed with different phraseology, the relief sought in counts 1 to 6 inclusive and counts 11 and 12 are more or less identical with the relief sought in the prior suit.

Defendants argue that since in the prior suit the plaintiff had approbated the contract under which he obtained his stock from Stanley J. Morris and Sidney Starr, he cannot now be heard to reprobate the contract on the ground of fraud. The question, therefore, with which we are concerned is whether the plaintiff had elected his remedy in the prior suit.

An election of remedies may generally be defined as choosing between two or more different and co-existing modes of procedure and relief allowed by law on the same state of facts. 18 Am. Jur., p. 129; 28 C. J. Sec., p. 1057; 20 C. J., p. 2.

| 2] The essential conditions or elements of election of remedies are (1) the existence of two or more remedies; (2) the inconsistency between such remedies, and (3) a choice of one of them. Levy v. Massachusetts Accident Co., 127 N. J. Eq. 49 (E. & A. 1939); Tremarco v. Tremarco, 117 N. J. Eq. 50 (E. & A. 1934); Adams v. Camden Safe Deposit & Trust Co., 121 N. J. L. 389 (Sup. Ct. 1938).

Tiie doctrine is applicable where an aggrieved party has two remedies by which he may enforce inconsistent rights growing out of the same transaction.

In the case sub judice the plaintiff, in his initial action, sought the appointment of a receiver on the ground that the defendant corporation was insolvent and in that action alleged that he was a stockholder and a common creditor of said corporation. In the second action, disregarding for the purpose of this opinion all of the relief demanded except that by way of rescission, the plaintiff alleges that he was fraudulently induced to enter into a contract under which he obtained the stock, and seeks relief as a result thereof, not as against the corporation but as against the two individuals, Stanley J. Morris and Sidney Starr. It is therefore apparent that the second suit is against different parties than the first suit. It is also apparent that the relief sought is different. The transaction out of which the two causes of action arose are not identical. In the first cause of action, to be successful it was unnecessary for the plaintiff to make any allegation concerning his stockholdings in the defendant corporation. The allegation of his creditor status would have been sufficient. It follows, therefore, that the two actions were not brought to redress the same wrong, nor did they arise out of the same state of facts.

As Mr. Justice Heher stated in Adams v. Camden Safe Deposit & Trust Co., supra:

“Tie doctrine of election of remedies, considered by eminent authority as ‘a harsh, and now largely obsolete rule,’ is one to be strictly confined within its reason and spirit.”

The doctrine of election of remedies, confined as above suggested, need not here be applied. Defendants’ motion on this ground will be denied.

The second basis upon which defendants argue for a dismissal is also here held without merit, since the question of time within which the action should have been brought can only be determined upon a final hearing and production of the necessary evidence in open court, subject to examination and cross-examination. This, in the final analysis, may well be a defense upon a final hearing but is not a ground at this stage of the proceeding for the dismissal of the complaint.

The third basis upon which defendants move for a dismissal is also here held without merit. The effect of this action by the plaintiff is to attack the whole contract which, among other things, makes provision for arbitration in the event of any difference or controversy under said contract. In the event the plaintiff is successful, this clause must fail with the entire contract. In the event the plaintiff is not successful, we may be faced with a different state of facts and then be obliged to determine the applicability of the arbitration clause to the balance of the allegations of plaintiff’s complaint.

The motion will be denied.


author: Wilmam A. Smith, J. S. C.

text:
    HENRY N. SCHRAGE, PLAINTIFF, v. MILTON J. LIEBSTEIN, IND. AND T/A UNITED RUBBER MACHINERY EXCHANGE, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided March 30, 1951.

      Messrs. Budd & Lamer (Mr. John J. Budd appearing), attorneys for plaintiff.

      Messrs. Mayer \& Mayer (Mr. Phil 0. Mayer appearing), attorneys for defendant.
   Wilmam A. Smith, J. S. C.

This action was tried before me on February 5, and 6, 1951, and resulted in a verdict in favor of the plaintiff for $3,467.73. The defendant moved for a new trial, and the matter has been submitted to the court on briefs after argument.

It is undisputed that on or about August 29, 1946, the plaintiff purchased from the defendant two machines: a Boyal No. 2 Perfected Tubing Machine for $1,900 and a Briggs Horizontal Vulcanizer for $1,300. There was a dispute whether the particular machines were allocated to the plaintiff so that title to them passed to the plaintiff from the defendant. The plaintiff’s contention was that the Boyal machine was actually inspected by him at the defendant’s place of business and that that was the machine he purchased. The other machine was owned by the defendant, but was in Indiana and was to be shipped to the defendant’s place of business, and it was the plaintiff’s contention that this particular machine was the one he purchased. One of the issues submitted to the jury and resolved in favor of the plaintiff was whether the plaintiff purchased these two machines so that title passed to him.

The plaintiff, after paying part of the purchase price of the two, machines, paid the balance and alleged that the defendant agreed to hold these particular machines until such time as the plaintiff required their delivery. This issue was also submitted to the jury and resolved in favor of the plaintiff.

When the plaintiff asked for possession of the particular machines, it appeared that the defendant had disposed of them, and, there were negotiations between the parties for the substitution of other different machines for the ones which the plaintiff claimed to have purchased. These negotiations never resulted in a meeting of the minds of the parties, and the plaintiff finally brought suit against the defendant for conversion of the two machines.

At the pretrial permission was given to add an additional cause of action for rescission. At the trial the plaintiff failed to prove a specific demand for the machines, and the court held that there could be no recovery under the action for conversion as the demand was a necessary part of the cause of action. The plaintiff contended that it was not necessary to prove the demand as it was useless, since the defendant had already disposed of the machines and could not get them back. The court, however, overruled this contention and submitted the case to the jury on the cause of action of rescission.

The Uniform Sales Act, B. S. 46 :30-72, provides:

“Where the property in the goods has passed to the buyer and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain any action allowed by law to the owner of goods of similar kind when wrongfully converted or withheld.”

It should be noted that this provision of the statute says the buyer may maintain any action. Plaintiff therefore had the causes of action of conversion, rescission, breach of contract, or replevin, and I take it he could sue for conversion or rescission when the defendant had disabled himself by his own action in rendering himself unable to deliver the machines. The defendant having lost title to the goods in question, the remedy of the plaintiff against the defendant was for compensation for his loss, not to obtain the machines in question, as they had been disposed of and the purchasers evidently had good title. The cause of action of breach of contract, which the defendant urged was the plaintiff’s proper remedy if conversion was not maintained, was inadequate because it was contended by the defendant that at the time of the breach of the contract by the defendant the value of the machines had decreased, and the defendant would then have been placed in the position of having made a profit, as he would only have to pay the fallen price and would therefore be able to keep the difference between that and the amount paid by the plaintiff. This certainly would be an unfair method of compensating the plaintiff for the defendant’s wrong.

The defendant urges under the doctrine of election of remedies that the plaintiff, having started suit for conversion, could not maintain an action for rescission. Permission to add the rescission count was given at the pretrial and, if my recollection serves me right, it was either by consent or without objection. We must bear in mind that the Sales Act specifically gives the right to the plaintiff to maintain any action allowed -by law, and the question of whether the action is maintained or not is determined when it is submitted to the jury. Moreover, Rule 3:8-5 specifically authorizes the pleading of alternative and inconsistent claims.

For the reasons I have stated the application for a new trial will be denied.


author: Hartsi-iorwe, J. 0. C.

text:
    WILLIAM M. YOUNG, WILLIAM M. YOUNG, Jr., AND MARY H. YOUNG, PARTNERS, TRADING AS WILLIAM M. YOUNG & CO., PLAINTIFFS, v. GEORGE C. FULLER CONTRACTING CO., INC., A CORPORATION OF THE STATE OF NEW YORK, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided March 16, 1951.

      Messrs. Lum, Fairlie Foster, attorney for plaintiffs.

      Mr. Meyer H. Ginsherg (Mr. Frvin S. Fulop of counsel), attorney for defendant.
   Hartsi-iorwe, J. 0. C.

Plaintiffs move to amend their complaint by adding thereto new counts 2 and 3. This motion is made subsequent to defendant’s filing of answer and counterclaim to the original complaint and subsequent to discovery proceedings, but prior to pretrial. Defendant resists this motion, claiming that the proposed new counts are inconsistent with the original complaint, and that plaintiff by taking its original position has elected its remedy and is now prevented from changing its position.

The question thus is, when must a party finally elect between inconsistent causes of action and, consequently, inconsistent claims lor relief ? As to this the state and federal courts, before the new rules, were not in accord either in New Jersey or throughout the country. (8 Am. Jur., Election of Remedies, secs. 16, 18, 19).

The new rules of civil practice of the courts of this State, with their broader provisions than formerly, both as to pleadings and discovery thereunder, provide for a subsequent pretrial conference as well, unknown under the o]d practice. These rules pertinently provide: “Belief in the alternative or of several different types may be demanded.” (Rule 3 :8 — 1.) “A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. * * * A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both * * * .” (Rule 3 :8~5 (6)). “ * * * leave (to amend pleadings) shall be freely given when justice so requires * * * .” (Rule 3:15-1.) At the pretrial conference, subsequent to pleadings and discovery, but prior to the determination of the merits of the controversy, the attorneys are required to “state and simplify the factual and the legal issues to be litigated and to amend the pleadings accordingly.” In addition to other matters, “The court shall (at pretrial) make an order * * * limiting the issues for trial * * * . Such order * * * with the pleadings as ordered to be amended controls the subsequent course of action, unless modified at the trial to prevent manifest injustice.” (Rule 3 :16.)

It is thus apparent that under the new practice, as contra-distinguished from the old, not only is a party permitted to state his claims, in a simple yet liberal way, but if such statement sets forth a legal claim, it is immaterial that such claims are inconsistent. Of course, these pleadings may be promptly dealt with if sham or otherwise improper or ineffective. (Rules 3:11, 3:13-3, 3:13-6, 3:56.) But if proper, the pleadings, and the bona fide issues raised thereby both of fact and of law, are subjected twice thereafter to the scrutiny of the court, first at pretrial and later at the trial itself, all to the end that the trial may be confined to the actual controversy on the merits. This added opportunity under the new practice of pretrial, to sift the wheat from the chaff, of itself • constitutes a reason why the new rules give greater liberality to a party in asserting his claims during the pleading period, and why such party should not be unduly restricted in asserting inconsistent claims, at least before he has had full opportunity to know exactly what facts his opponent may face him with.

Such being the apparent spirit and letter of the new rules, we turn to a consideration of the original complaint in the case at bar and the proposed two new counts therein. The original complaint alleges that defendant engaged plaintiff as a subcontractor to do certain excavation and other work, under a written contract. That thereafter this written agreement was modified to call for a payment of $2,000 to plaintiff by defendant; that this sum was due and owing, had been demanded, but had not been paid. Copies of the original agreement and the alleged modification were attached to the complaint itself.

Plaintiff asks to amend this complaint by entitling the original complaint “first count/* and by adding thereto a second count and a third count. The proposed second count alleges that, by mutual mistake, there was an ambiguity in the modification, in that it alluded to plaintiffs doing “grading,** though the intent was to state “rough grading,** not “finished grading.** The pleading continues by alleging that “In the alternative, if defendant was not mistaken as aforesaid, then the use of the word ‘grading’ was a deliberate device, utilized by defendant with the intent to deceive plaintiffs, so as to include surreptitiously, by reference to the plans and specifications, all types of ‘grading.* ** Plaintiff then asks for reformation of the modification, to call for “rough grading,** and judgment for $2,000.

The proposed third count is based upon the original agreement, asks judgment for a balance of $11,231 due thereon, and alleges that the “attempted modification agreement (is) invalid for lack of consideration.”

Since the second count is based upon the modification, as is the first, both are consistent. The amendment asks merely for additional equitable relief to reform the modification in order to accord with the intent. This relief is appropriate, if the allegations are trne. Moreover, the alternative hypothesis of fraud, if. the mistake was not mutual, accords with the express terms of the rules above quoted. Further, this fraud is alleged with sufficient particularity.

It is to the third count that defendants’ objection particularly lies, that it is inconsistent with the other counts. This is because the first and second counts rely upon the modification, while the third count is based on the original contract, and alleges the modification to be “invalid for lack of consideration.” Defendant claims that plaintiff, by filing the original complaint based on the modification has, therefore, elected to treat the modification as valid, and the original agreement as altered to that extent, so that It is now legally foreclosed from recovery on the basis of the original agreement.

True it is that the rules properly require that a motion to amend the complaint, made under the present circumstances, should he by leave of court or on consent, thus indicating that plaintiff must show cause iu order to be permitted thus to amend. (Rule 3:15 — 1.) This cause should include, for instance, inadvertence, plus prima facie merits; else the trial might be unduly delayed by useless and sham papers. But if plaintiff shows this cause, the amendment should be permitted, since the rules expressly provide for pleading “separate claims * * * regardless of consistency * * * .” (Rule 3:8 — 5(5).) It would seem that these inconsistent claims to which this part of the rule refers, are claims that are inconsistent in point of law, since this part of the rule alludes to the legal or equitable grounds of the pleading. On the other hand, it would seem that the other portion of the rule alluding to “two or more statements of a claim or defense (set forth) alternatively or hypothetically” refers to inconsistency in point of fact. Such a construction of these broadened provisions of the new rule gives reasonable effect to the principles alluded to in Rose v. Jerome Harvey Development Co., 113 N. J. Eq. 161, 165 (E. & A. 1933) and Morris v. Jersey Central Power & Light Co., 118 N. J. Eq. 541 (Ch. 1935), in requiring that a party shall not play fast and loose with facts on the one hand, but on the other that he shall not he foreclosed from pleading facts alternatively or hypothetically, according to the rules, until his opponent’s version of the facts has been disclosed.

This is exactly what plaintiff has sought to do here in its proposed second count. There, after alleging mutual mistake in the modification agreement, plaintiff adds that “in the alternative, if defendant was not mistaken as aforesaid then * * *” defendant had a fraudulent intent to deceive plaintiff in that regard, so that plaintiff is entitled to reformation anyway.

Note that the present rule in the above regard (3 :8 — 5 (b)) is verbatim the rule as printed in the Tentative Draft of Bules, and, as there noted, is verbatim Federal Civil Buie 8(e) (2). The editors of the Tentative Draft in the comment on such rule call attention to the fact that the federal rule, contrary to the rule in some state jurisdictions, such as New Jersey, does not make inconsistent pleadings objectionable, regardless of whether such inconsistency is in point of fact or in point of law. And see Levy v. Massachusetts Accident Company, 124 N. J. Eq. 420, 433 (Ch. 1938), that the party’s election accordingly may well not be requisite “until at or after trial and verdict.” Since the new rules adopted verbatim the above tentative draft rule, as explained by such comment, and the tentative draft rule adopted verbatim the above federal civil rule, it would appear that the New Jersey Supreme Court in the present rules has adopted the above construction of the federal civil rule.

On the other hand, as to the proposed third count, there is no contradictory statement of fact. This count in point of fact is quite consistent with the fact that the modification agreement may have been entered into either by mutual mistake or through the fraud of defendant. What this count says is that, regardless of whether the modification agreement came into being under either of the above alternatives, it is “invalid for lack of consideration.” This is a new point of law, inconsistent as to law, not as to fact, with the first and second counts. This is properly pleadable under the above rules.

Furthermore, in this regard, plaintiff has shown the necessary cause for the amendment by affidavits filed by both its engineer and its counsel. These expressly say that the engineer, primarily familiar with the situation, “was not available for inquiry” earlier, hence the delay in filing the amendment. This affidavit adds that “defendant deliberately and unreasonably misconstrued the (original) contract so as to wring a concession from plaintiffs, and that defendant had no basis for a bona fide dispute.” In other words, the objections raised by defendant to paring plaintiff under the original contract were not bona fide; there was no bona fide dispute; hence the modification agreement is invalid for lack of consideration. If that is so. the proposed third count states a cause of action.

Nor are the decisions relied on by defendant to the contrary, Grobart v. Society, etc., 2 N. J. 136, 149 (1949); Stretch v. Watson, 6 N. J. Super. 456 (Ch. Div. 1949) ; In re Perrone, 5 N. J. 514 (1950); Lizak v. Rottenbucher, 140 N. J. Eq. 76 (Ch. 1947). In the Grobart case the court, by its own italics, criticizes inconsistent pleadings, only where they are set up in “successive” pleadings. This is because, as the court says, “shifting causes of action in successive pleading will completely block the purpose of all pleading, i. e., getting to an issue or issues * * As to a party’s changing position, as alluded to in the above Stretch, P err one, and Lizak eases, this change of position occurred, not at the preliminary stage of pleading, before the party knew the full facts, but after the party knew the full facts, i. e., on final hearing or appeal, ('learly, knowing such full facts, it is but fair the party then should have elected his position. Though situations might perchance exist even then, when it would be a close question of fact, whether the jury would find fact A or fact B to exist. Hence it might aid justice, not to compel the party to gamble on the finding of the jury, but to submit his case to them alternatively or hypothetically. In other words, the party could submit to the court that, if fact A exists, then result (1) should follow, but if fact B exists, then result (2) should follow, this perchance in the form of a request for special verdict.

In conclusion, it appears (1) that the new rules permit greater liberality than existed under the old practice for pleading claims dr defenses, inconsistent in point of either law or fact; (2) that the purpose of these more liberal pleadings is to prevent the pleader from being foreclosed from asserting any rights to which he may perchance be entitled, until the true facts on both sides are known; (3) that the greater power of discovery of the facts under the new practice, plus the additional check on ascertaining the actual issues, as afforded by pretrial, which succeeds discovery, but precedes trial, will prevent sham and unnecessary pleadings from obscuring the true issues at trial. Hence (4) under normal circumstances, the doctrine of election of remedies should not be applied as strictly under the new practice as formerly, and generally, a party should not be foreclosed from pleading any claim or defense, until all the facts on both sides, material to such party’s position, are substantially known.

Accordingly, plaintiff’s motion herein, to amend the complaint, is granted.


author: Hughes. J. C. C.

text:
    IN THE MATTER OF THE APPLICATION OF HENRY ZIENOWICZ FOR ISSUANCE OF WRIT OF HABEAS CORPUS.
    Mercer County Court Law Division
    Decided March 7, 1951.

      Mr. William Q. G-roh, attorney for the petitioner, in forma pauperis.

      2Lr. Honorable Theodore D. Parsons, Attorney-General of tlie State of New Jorsej' (21 r. Eugene T. TJrbaniah, Deputy Attorney-General, appearing), attorney for the State.
   Hughes. J. C. C.

On the representation that he is illegally confined in the New Jersey State Prison, there was issued to the petitioner, Henry Zienowicz, the writ of habeas corpus under the authority of R. S. 2 :82-l. On the return of the writ, testimony was taken and argument heard, resulting in the following faci ual showing:

On July 1, 1938, in the former Court of Quarter Sessions of Middlesex County, the petitioner, on his plea oí non milt to an indictment for robbery (R. 8. 2:166-1), was sentenced to serve an “institutional” term of imprisonment at the New Jersey Eeformatory at Aim and ale. This type of sentence has no fixed minimum and the maximum term thereof corresponds to the statutory maximum term of imprisonment for the particular crime for which sentence is imposed (R. 8. 30 -.4-152), which, in tlie case of robbery, was and is 15 years. R. S. 2 :166-1. On July 28, 1939. pursuant to its authority under R. 8. 30 :4 — 152, the board of managers of such reformatory paroled petitioner, i. e., terminated the term of service, placing him at liberty under parole supervision for the unserved period of the maximum term aforesaid.

Thereafter and in November, 1942, petitioner, on conviction in the federal court for violation of the National Motor Yehiele Theft Act, was sentenced to serve three years in the custody of the United States Attorney General and was committed to the federal prison at Lewisburg. Pennsylvania. Although the New Jersey authorities filed a detainer against petitioner at Lewisburg, they later withdrew it and took no action to revoke the parole previously granted him from the Annandale sentence. He was-conditionally released from Lewisburg on April 9, 1945, and such conditions were fulfilled by him on December .23, 1945. Upon his release from Lewisburg, petitioner returned to New Jersey and parole supervision by the New Jersey authorities continued to be exercised over him. Petitioner was thereafter and in February, 1946, convicted of the crime of larceny of motor vehicle in the appropriate court in Union County and was sentenced to the New Jersey State Prison for a minimum and maximum term of three years.

On the latter sentence, he was received in said prison on February 21, 1946, and, not being paroled on such sentence, served the maximum term thereof, which, after credit to him of commutation time credits uniformly available to prisoners .committed to such prison, under R. S. 30 :4-140, expired on March 29, 1948. Meanwhile, and on April 22, 1947, as a result of his said conviction in Union County, the board of managers of the reformatory at Annandale, pursuant to its authority under R. 8. 30:4-lll, revoked the parole previously granted by it, at which time, according to the return to the writ, which was not traversed in this cause, there remained unserved against the maximum of the original Annandale sentence of 1938 a total of six years, four months and four days. Upon such parole being revoked, the Commissioner of the Department of Institutions and Agencies of New Jersey, pursuant to the authority vested in him by R. 8. 30:4 — 85,’ as amended, ordered the transfer of the remaining portion of the maximum term of petitioner from Annandale, to be served at the New Jersey State Prison.

Petitioner was born on March 8,1916, and thus was 22 years of age when originally committed to Annandale, 31 years of age when his parole from Annandale was revoked, as aforesaid, and is presently about 35 years of age, these details being material to one of his contentions, which will be mentioned hereafter.

In this field of evidence there is no substantial conflict of fact, but it forms the basis for petitioner’s claim that he is presently unlawfully detained. In support of this contention, he makes the following fundamental propositions going to the validity of such confinement.

First, that the parole authorities irrevocably lost jurisdiction of his person by their relinquishment of their parole warrant filed as a detainer against him at Lewisburg. There is no evidence as to the reasons underlying the decision not to seek revocation of parole at this time by reason of the mentioned conviction in the federal court. On the basis of such conviction, the board clearly had the right to revoke the parole. R. S. 30 :4 — 111. Quaere: Does the failure to exercise such right of revocation at a particular time and by reason of a particular breach of condition, of which the board is on notice, have the effect in law of a final discharge of petitioner from parole supervision or sanctions ? There is no doubt, nor issue in this case, that the normal period of parole supervision corresponded, at the outset, to the maximum period of the sentence imposed, namely, 15 years from the date of imposition of such sentence on July 1, 1938, less any uniform commutation time credits for work assignments to which the parolee might become entitled. The statute prescribes a method for the shortening of this period of parole for prisoners sentenced to institutional terms as distinguished from minimum-maximum terms, by the issuance by the board of managers of the reformatory of a final discharge from custody (“custody” here referring not to physical imprisonment, but to the constructive custodial power implied in the parole relationship. R. S. 30:1-110). In granting the power to issue this final discharge, the Legislature has left its use to the discretion of the board, keyed to the interim conduct of the parolee and the consequent apparent compatibility of such discharge with the welfare of society. R. 8. 30 :4-113, as amended L. 1948, c. 86. The statutory power to discharge before the expiration of the maximum term has been held constitutional as not interfering with the prerogative of the sovereignty in the granting of pardon (In re Marlow, 75 N. J. L. 400 (Sup. Ct. 1907)), and our courts have also held that such a final discharge is contingent, in all cases, upon the action of the board of managers of the particular correctional institution involved. An attempted discharge therefrom by the superintendent of such institution, for instance, is not sufficient. In r.e Wright, 139 N. J. Eq. 515 (Ch. 1947). It seems quite clear to me that the final discharge referred to in the statute can occur only by an intentional and formal action taken by the board of managers, in which the Legislature has vested this important discretionary power. It is noted that the grant of power to the board to revoke parole, where there has been a breach of condition and unfitness to remain further at liberty, as in the case of subsequent conviction of crime, likewise leaves discretion in the board to revoke the parole or not (R. S.. 30 :4-lll), and the legislative intention to repose this discretion in the board is apparent by its use of language differing from that used in conferring revocation power on the former Court of Pardons, which would seem to have made revocation of a license to be at large issued by it mandatory under certain circumstances. R. 8. 2:198-3, repealed L. 1949, c. 18. Hence, I determine that the failure of the board to revoke petitioner’s parole by reason of the federal court conviction did not effect a termination of his parole status, nor indeed, have any effect whatever on that relationship.

Such discretionary power to withhold revocation for a specific cause, in the judgment of the board, where a later revocation is declared in timely fashion on a separate and subsequent ground for revocation, all during the period of the parole as measured by the initial maximum term of the sentence, does not trench upon the safeguards of the Fourteenth Amendment to the Constitution of the United States, and is not in any sense comparable to the abuses condemned in the case of United States ex rel. Howard v. Ragen, Warden, 59 F. Supp. 374 (U. S. D. C., N. D. Ill., E. D., 1945).

It is next contended that the statute under which the Commissioner transferred petitioner to the New Jersey State Prison for completion of the unexpired period of the sentence to Annandale is unconstitutional. R. 8. 30:4^85. Petitioner asserts that this statute violates constitutional guarantees of equal protection of the laws and due process, that it confers judicial powers on the Commissioner and that it effects cruel and unusual punishment in violation of the New Jersey Constitution, Article I, par. 12.

It has been noted that sentences to the New Jersey Reformatory at Annandale are those of “institutional” nature, i. e., with no minimum term, the maximum term being the statutory maximum for the crime involved, and that the board of managers of such institution has very broad powers of termination of the period of service. R. 8. 30 :4-152. This type of sentence, when considered in connection with R. 8. 30 :4-1513, which restricts original commitments to such reformatory to those who previously have not been sentenced to a prison, reformatory or penitentiary, sufficiently indicates a legislative purpose to secure its function as a reformatory-type institution and to prevent the incarceration and training there of criminals of the recidivous type. When contrasted with the type of sentence to the State Prison prescribed by law, which requires the imposition of a fixed minimum term (R. 8. 2:192-4), the legislative formula for the imposition of the “institutional” type sentences accentuates the theory of training and social rehabilitation, with termination of service dependent, inter alia, upon its accomplishment, over and above the more normal incidents of imprisonment which are implicit in sentences to the State Prison.

It is. thus, apparent that the State conceives of importance the role of this rcformator}', primarily, as a rehabilitative and corrective institution, and the statute legitimately creates a means for the separation therefrom of prisoners deemed unsuited or obstructive to such objectives. This and other purposes, including those incident to security, discipline, curriculum and the like, undoubtedly justify, as an' executive rather than as a judicial function, the transfer of prisoners from one institution to another, when authorized bjr statute, as here. Uram v. Roach, Warden, 37 P. 2d 793 (Sup. Ct., Wyo., 1934) Ex Parte Neighbors, 187 P. 2d 276 (Crim. Ct. of App., Okl., 1947); Moffett v. Hudspeth, Warden, 165 Kan. 656, 198 P. 2d 153 (Sup. Ct., Kan., 1948); People v. Scherbing, 93 Cal. App. 2d 736, 209 P. 2d 796 (Dist. Ct. of App., Cal., 1949).

The transfer ordered in this case, without notice and hearing, is not illegal, nor is the statute so authorizing it unconstitutional as a denial of due process. The phrase “due process of law” is intended to guarantee to a defendant a fair and impartial trial, and is not interpreted as extending in application to the method of incarceration determined by administrative officials or body, bested with that power by statute, in the execution of sentence, after a trial in due course which stands-unchallenged for its legality. Nor is such transfer, nor statute authorizing it, subject in any way to characterization as-cruel and unusual punishment. Such a statute is a proper exercise of the power of a State for the regulation of the welfare-of the individual whose liberty may be thus restrained, as well as for the protection of the community at large, under a clearly described policy of educational and reformatory discipline. Slagway v. Riker, 84 N. J. L. 201 (Sup. Ct. 1913).

That .such a,transfer is an executive rather than a judicial function and, moreover, presumptively within the contemplation of the court imposing sentence, is further apparent when it - is considered that statutes conferring the right of' transfer on administrative officials, which are in effect at the time of imposition of sentence, are as much a part thereof as-though specifically incorporated in the sentence and, thus,, the possibility of administrative transfer is an incident im- • pliedly annexed thereto. Cassidy’s Petition, 13 R. I. 143 (Sup. Ct., R. I., 1880); Re Murphy, 62 Kan. 422, 63 Pac. 428 (Sup. Ct., Kan., 1901) ; Pellissier v. Reed, 75 Wash. 201, 134 Pac. 813 (Sup. Ct., Wash., 1913) ; Glazier v. Reed, Warden, 116 Conn. 136, 163 A. 766 (Sup. Ct. of Errors, Conn., 1933); Ex Parle Olden, 199 P. 2d 228, (Crim. Ct. of App., Okla., 1948).

The validity of like statutes permitting transfer of prisoners lias been upheld, quite uniformly, as against objections that they constitute a denial of due process or confer judicial powers on administrative officials, or constitute cruel and unusual punishment. 15 Am. Jur., Crim. Law, sec. 555.

This petitioner complains that upon such transfer, although he is subject, under R. S. 30 :4-86, to the rules and regulations of said State Prison, he is denied the right to earn commutation time credits under R. S. 30 :4-140, which would materially reduce the maximum term of his sentence. The latter statute grants incentive reward to those originally committed to the State Prison by way of time credits against the minimum and maximum terms of their sentences in return for work assignments faithfully performed and in recognition of good behavior, oil a uniform scale. These credits, as such, are withheld from reformatory inmates transferred to lire State Prison, as here, although credits are allowed under R. S. 30 :4-9.2, for “employment in productive occupations” within the prison. Such reformatory prisoner, although serving the balance of his term in the State Prison, is not required to do hard labor, which is undoubtedly the “assigned labor” referred to in R. S. 30.1-140, as a basis for remission of time, and if he does work, he is allowed time credits as above. The withholding of the commutation time credits under R. S. 30:4-140, however, does not increase or change the sentence originally imposed (In rs White. 10 N. J. Super. 600 (Cty. Ct. 1950)), nor does it discriminate against petitioner or those in his (.‘lass or deny them the equal protection of the laws. Such statute is restricted to those prisoners having minimum and maximum terms, and the incentive feature as to credits earned, while shortening the maximum term of imprisonment, is primarily apropos to eligibility for parole, which, under R. S. 30:4-123.10, N. J. S. A., occurs at the expiration of service of such minimum term, as reduced by such time credits, or upon service of one-third of the maximum term without regard to commutation time, whichever occurs sooner.

But a reformatory inmate is immediately and always eligible for consideration for parole and his transfer to the New Jersey State Prison, under the statute referred to, does not alter this status. In fact, under existing law, he has two avenues of parole which may be granted him by the board of managers of the reformatory-type institution to which he was originally committed, as noted (B. S. 30:4^152), and also by the State Board of Parole under L. 1950, c. 30.

The third point made by this petitioner has to do with his age; he contends that the right to detain him on the Annandale sentence on which he is presently held, terminated when he achieved the age of 30 years. Reference to the statute, B. S. 30 :4r-151, indicates that commitment to the New Jersey Reformatory at Annandale is restricted to males between the age of 16 and 26 years, but this has no reference to the right of detention as does B. S. 30:4r-157.6, N. J. S. A., for instance, which provides, with regard to another corrective institution (State Home for Boys at Jamesburg), that a youth may be detained there “* * * until he reaches the age of twenty-one years, * * Annandale is not an institution “wherein the right of detention is determined by age,” within the intendment of B. 8. 30:4r-113, and this point of the petitioner is devoid of merit.

I conclude that the petitioner is properly held to serve the unexpired maximum term of his original 1938 sentence to Annandale, unless sooner paroled; that the statute under which he was tranferred is wholly constitutional and that his transfer thereunder to the New Jersey State Prison for completion of his sentence was legal in all respects; and that his age is no impediment to the right and duty of the State to detain him in custody.

The writ is discharged and the petitioner remanded to custody.

       “The courts in sentencing to the reformatory shall not fix or limit the duration of sentence, but the time which any person shall serve in the reformatory shall not in any case exceed the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, and the term of service may be terminated by the board of managers of the reformatory in accordance with its rules and regulations formally adopted.”

        R. S. 30 :4r-85, N. J. S. A. “Any .inmate of any correctional institution as classified in section 30 :l-7 of this Title may be transferred to any other such correctional institution by order of the commissioner directing such transfer, either upon the application of the chief executive officer or upon the initiative of the commissioner. * ** *” Source. L. 1918, e. 147, § 213, p. 357, as am. by L. 1919, c. 96, § 2, p. 219 [1924 Suppl. § 34-93], L. 1931, c. 96, § 1, p. 162. a R, S. 30:4-151, N. J. 8. A. “Any male between the ages of sixteen and twenty-six years, who has been convicted of a crime punishable by imprisonment in the state prison, who has not previously been sentenced to a state prison, reformatory or a penitentiary in this or any other state, may be committed to the reformatory at Annandale or to the reformatory at Rahway, but no person who has been previously convicted of a crime punishable by imprisonment in the state prison, and sentenced to a prison, reformatory or penitentiary may be sentenced to the reformatory at Annandale.”


author: Ziegenee, J. C. C.

text:
    ANTHONY DA BIN, PETITIONER-APPELLANT, v. P. S. THORSEN & CO., INC., RESPONDENT-APPELLEE.
    Hudson County Court Law Division
    Decided March 27, 1951.

      Messrs. Meehan Brothers, attorneys for the petitioner (Mr. Morris Bdelsiein, of counsel).

      Messrs Marlcley & Broadhurst (Mr. Arthur J. Blalee, appearing), attorney for the respondent.
   Ziegenee, J. C. C.

This is a workmen’s compensation case in which the petitioner-appellant, Anthony Da Bin, hereinafter called petitioner, filed a claim for increased disability and the Workmen’s Compensation Bureau entered a judgment for the respondent-appellee, hereinafter called respondent, and dismissed the petition, on October 6, 1950.

Petitioner met with an accident arising out of and in the course of his employment on July 26, 1944, and as a result thereof was paid temporary compensation by respondent for a period of eighty-two and six sevenths weeks (82 6/7) at $20 per week, or $1,657.14, and vras awarded 40 per cent partial permanent total disability, or 200 weeks at $20 per week, totaling $4,000, by the Workmen’s Compensation Bureau on November 14, 1946. Petitioner subsequently brought this action to obtain additional compensation due to increased disability.

In a case of this type, the claim of increased disability should be grounded in the comparative condition and ability of the workman and must be supported by proofs which per-mil comparison. Hopler v. Hill City, 5 N. J. 466, 73 N. J. L. J. 376 (1950). An increase in an award must be predicated upon a comparison of the two conditions; i. e.. petitioner’s condition at the time of the award and his present condition.

In this instance petitioner did not produce Dr. Meehan, the physician who testified for him at the original ]tearing, but respondent did produce Dr. Watman, who testified in its behalf at the first hearing. Now respondent contends the petitioner’s failure to produce Dr. Meehan to testify in reference to any alleged increased disability should operate against petitioner insofar as his present claim is concerned. It is evident that Dr. Watman, respondent’s physician, from his examination of petitioner in relation to the claimed increase in disability, concludes that there was none, and, if anything, there was a decrease in disability.

However, the petitioner was precluded from offering the testimony of Dr. Meehan, given at the prior hearing, due to the sustained objection of respondent’s counsel, and, therefore, was unable to actually produce testimony concerning the possible increased disability by comparing the condition of petitioner, as testified to by Dr. Meehan, and any present condition which might prove an increased disability. I am not unmindful of the fact that Dr. Meehan is presently a practicing physician in this county and is evidently available to testify. However, petitioner’s failure to call him, regardless of the reason therefor, does- not, in all finality, indicate he does not have any increased disability. Dr. Meehan’s testimony, at the original hearing, including the cross-examination, should have been admitted into evidence and petitioner would then be in a position to interrogate the physician testifying in his behalf in this instance, Dr. Marcus, as to his comparison between Dr. Meehan’s findings at that time and the present condition of petitioner, and he can he cross-examined in connection therewith.

It is hereby ordered, on this 2? (My of March 1951, that the cause herein be remanded to the Workmen’s Compensation Bureau for rehearing in accordance with the above.