text:
    Sarah Sanderson, a lunatic, who sues by Peter P. Artaserse, her guardian, complainant, v. Lillie F. Howell, defendant.
    [Decided January 9th, 1936.]

      Mr. Louis Sort, for the complainant.

      Messrs. Minturn •& Weinberger, for the defendant.
   Egan, Y. C.

The complainant, Sarah Sanderson, a lunatic, sues by Peter P. Artaserse, her guardian, to recover certain bank accounts alleged to be owned by the ward and withdrawn from the banks by the defendant who is her niece. One of the accounts was in the Lincoln Trust Company of Jersey City, which company afterwards merged with the First National Bank of Jersey City. On November 23d, 1928, that account stood in the name of Sarah Sanderson. On the day last mentioned, or on the 26th day of November, 1928, the money in that account was withdrawn and was deposited in the Lincoln Trust Company of Jersey City, Bergen Square Branch, in a new savings account in the name of “Lillie F. Howell or Sarah Sanderson.” The ward, subsequently, made several deposits to this account. There was a withdrawal from it by her on July 3d, 1929, of $32.04. On December 28th, 1933, the account amounted to $2,027.13. On the last mentioned date, the defendant withdrew this amount from the account and closed it. On the same day, she deposited the same amount, $2,027.13, in her own name, in the Bergen Square Branch of the Lincoln Trust Company. On January 8th, 1934, she withdrew this sum from the trust company and closed the account. She still retains the money.

On October 11th, 1922, the ward, Sarah Sanderson, and her husband, Charles H. Sanderson, now deceased, had an account in their joint names, in the Trust Company of New Jersey, Bergen and Lafayette Branch. On November 23d, 1928, that account was changed to Sarah Sanderson and Lillie F. Howell, the defendant. The signature card of the trust company states that the money belonged to the depositors as joint tenants, either and the survivor to draw. On December 28th, 1933, the defendant withdrew $1,000 from this account; and on, or about, January 5th, 1934, she withdrew the balance in the account, or the sum of $2,349.24, and, thereupon, closed the account.

The ward is now of the age of eighty-two, or eighty-three, years. For years, she lived alone, in an apartment in a two-family house on Belmont avenue, Jersey City. The apartnient had no “improvements;” light was furnished by lamps or candles. The evidence indicated that Mrs. Sanderson’s house was continuously untidy, disordered and dirty. Her personal appearance was unclean. She had no children. She was frequently visited by the defendant and by other nieces— Edna Durkin and Mabel Ammerman, respectively, who testified.

In the latter part of the year 1933, Mrs. Sanderson met with an accident and was removed to a hospital. The bank books, representing the accounts above stated, had been kept by her in a tin box in her apartment. Immediately upon her removal to the hospital, the books representing the bank accounts, as well as other bank books showing joint accounts that had been opened by Mrs. Sanderson in her name and that of her niece, Edna Durkin, were removed by the defendant and by Miss Durkin. The books showing the accounts with the defendant’s name were taken by her, while the books showing the accounts in the name of Edna Durkin were taken by Miss Durkin. Both of these ladies testified that they took the books because they felt they could withdraw money from the accounts “to use for Mrs. Sanderson,” as occasion required. The books taken by the defendant have never been returned to Mrs. Sanderson or to the complainant; the defendant still retains them. The complainant herein made demands upon the defendant, and upon Miss Durkin, for the return of the bank books. Miss Durkin returned the book she had taken to the complainant Peter P. Artasorse. The defendant refused to turn over the bank books which she had taken. She testified that she had never deposited any of her own money in these accounts; and that she had the Lincoln Trust Company book for a year prior to the time that Mrs. Sanderson had been taken sick.

Regardless of the ward’s competency, did she give, or intend to give, her bank accounts, or donate an interest in them to the defendant? The testimony indicates that she did not. There is no evidence that Mrs. Sanderson, at any time, gave, or delivered, her bank books to the defendant. The defendant said that she held one of the books showing an account in their joint names for a year prior to Mrs. Sanderson’s removal to the hospital. That fact, in itself, does not establish a gift. We are without the benefit of the ward’s testimony; she is, of course, not competent to testify. T am satisfied the ward had her bank accounts changed to joint accounts with the defendant just as a matter of convenience— she needed the aid and assistance of the defendant to withdraw money from the bank for her (the ward’s) use. Wright v. Sanger, 101 N. J. Eq. 203; 137 Atl. Rep. 657. It seems hardly necessary to cite cases indicating the defendant’s want of title to the accounts. In Reeves v. Reeves, 102 N. J. Eq. 436; 141 Atl. Rep. 175, the principle is laid down that “to sustain a gift inter vivos, there must not only be a donative intention, but also a complete surrender by the donor of all control over the thing given.” The evidence shows no surrender of interest by the ward.

It is apparent that there was a relationship of trust and confidence existing between the ward and her niece, the defendant. Wright v. Sanger, supra; Christian, Admx., v. Canfield, 108 N. J. Eq. 547; 155 Atl. Rep. 788; Kelly v. Kelly, 107 N. J. Eq. 483; 153 Atl. Rep. 384. The burden of proof to establish an alleged gift is on the donee, and both delivery and donative intent must clearly appear. Madison Trust Co. v. Allen, 105 N. J. Eq. 230; 147 Atl. Rep. 5476.

The defendant did not submit any corroborating evidence of the alleged gift. Hudson Trust Co. v. Murphy, 13 N. J. Mis. R. 375; 178 Atl. Rep. 366. In Madison Trust Co. v. Allen, supra, the principle was established that where the only witness to an alleged gift is the wife of the donee, it is proper to consider the surrounding circumstances, personal interest and the actions of the claimant at, or immediately subsequent, to the time of the alleged gift. Bearing in mind the evidence, considering all the circumstances and conditions surrounding this case, the personal interest of the defendant, her conduct toward the ward, the ward’s advanced age, leads, in my opinion, to but one conclusion: a want of donative intent.

In Johnson v. Savings Investment Co., 110 N. J. Eq. 466; 160 Atl. Rep. 371, the court, in effect, said that to establish a gift inter vivos, there must be a donative intention, actual delivery of the subject-matter, and a complete abandonment by the donor of all ownership. To the same effect is the principle laid down in Kirkpatrick v. Kirkpatrick, 106 N. J. Eq. 391; 151 Atl. Rep. 48; First National Bank of Lyndhurst v. Rutherford Trust Co., Exr., 109 N. J. Eq. 265; 157 Atl. Rep. 142; Trenton Savings Fund Society v. Byrnes et al., 110 N. J. Eq. 617; 160 Atl. Rep. 831; In re Farrell, 110 N. J. Eq. 260; 159 Atl. Rep. 617; Parker v. Colonial Building and Loan Association, 111 N. J. Eq. 49; 161 Atl. Rep. 353.

The defendant’s own testimony clearly indicates that in her case the vital and necessary elements of a gift are lacking.

Under the circumstances, I shall advise a decree in accordance with the prayer for relief.


source: Caselaw Access Project

author: Egan, V. C.

license: Public Domain

text:
    Bertha Weiss, complainant, v. Keystone Realty Company, Incorporated, Benjamin Rosenwasser and Fanny Guttenberg, executrix of the last will and testament of Solly Guttenberg, deceased, defendants.
    [Decided January 21st, 1936.]

      Mr. Joseph L. Freiman, for the complainant.

      Mr. JI. David Zerman, for the defendant Keystone Realty Company, Incorporated.

      Mr. Frank II. Fggers, for the defendant Benjamin Rosenwasser.

      Mr. Fred Goldstein, for the defendant Fanny Guttenberg, executrix of the last will and testament of Solly Guttenberg, deceased.
   Egan, V. C.

The defendants, by petition, seek to prevent the confirmation of the sale of the mortgaged premises which brought at the sheriff's sale the sum of $100. The question was duly argued and, after which, it was referred to a master who was directed to ascertain the fair and reasonable value of the premises, with all the rights and credits due to the defendants, and to ascertain the financial ability of the defendants to refinance the property, and to determine what, if any, encumbrances were liens on the same, and, if such, whether they were paramount to the complainant's mortgage. Several hearings were held before the master who then filed his report, in which he stated that the fair value of the land was $14,000; that the defendants were financially unable to protect themselves at the sheriffs sale; and that municipal liens to the extent of $3,980.21 were paramount to the complainant's mortgage.

Thereupon, the complainant petitioned to set aside the report. The defendants seek to confirm the master’s report, but except to the amount of the municipal liens fixed by the master. While it was proper for the complainant to except to the master’s report, her petition to set it aside for the reason therein expressed cannot prevail. There were no irregularities in the proceedings, and there was no neglect or error— except as to the municipal liens hereinafter stated—on the part of the master to report on the matter referred to him; and since that is the situation, the report should be confirmed, except with a modification of the amount of the tax liens. Douglas v. Merceles, 24 N. J. Eq. 25; Practical Building and Loan Association of City of Newark v. Meisol, 101 N. J. Eq. 636; 139 Atl. Rep. 338.

I am not persuaded that there is merit in the complainant's exceptions; in fact, I am satisfied that there is none. The conduct of the witnesses who appeared before the master, their manner of testifying, their demeanor, the readiness with which they responded to the questions that were presented to them by counsel, were all under the observation of the master and he had full and ample opportunity to estimate the weight and quality of the testimony submitted by them. I had no such opportunity. My judgment is limited to the cold type oí the testimony taken before him. I am compelled to believe that the master was in a far better position to j udge and draw inferences from the attitude and manner of testifying of the witnesses than I.

There does not appear to be any fixed rule by which “fair values” shall be determined or established. If the result attained, be it a high or low estimate of value, finds support in competent evidence, and is based upon reason, equity and justice, the court will accept it; but it will not accept the estimates of the master if it feels that the circumstances do not warrant such judgment; it may approve or disapprove the estimates fixed by the expert witnesses; and it may establish what—from all the evidence—it believes to be the fair value. However, in the instant case, the master’s report of the fair value should be sustained. The evidence supporting it appears to be competent. The exceptions of the complainant to the master’s report will be overruled. Chasey v. Broadway Holding Co., 114 N. J. Eq. 74; 168 Alt. Rep. 221. In Peoples Trust, &c., Co. v. Genden, 119 N. J. Eq. 249; 182 Alt. Rep. 25, Vice-Chancellor Lewis said:

“It is now firmly settled that the burden of sustaining exceptions to a master’s report is upon the exceptant (National Bank of Metropolis v. Sprague, 23 N. J. Eq. 81; Fish v. Harrison, 87 N. J. Eq. 103; 100 Alt. Rep. 185; affirmed, sub nom. Fish v. Harrison Milling Co., 89 N. J. Eq. 212; 108 Alt. Rep. 1052), and that this court will not disturb the master’s conclusions upon factual questions submitted to him, unless it clearly and satisfactorily appears that he has erred in reaching them (Sinnickson v. Bruere, 9 N. J. Eq. 659). and this upon the principle that where he has had the opportunity to see and hear the witnesses, and thus better weigh their testimony, his conclusions will be entitled to great weight and respect, and, where supported by competent credible evidence, will not be set aside; even though there is a conflict of testimony. Izard v. Bodine, Ibid. 309; Clark v. Condit, 21 N. J. Eq. 322; Van Ness v. Van Ness, 32 N. J. Eq. 669; Haulenbeck v. Cronkright, 23 N. J. Eq. 407; affirmed, 25 N. J. Eq. 513; Wilson v. Sandall, 92 N. J. Eq. 130; 111 Atl. Rep. 322; affirmed, 92 N. J. Eq. 463; 113 Atl. Rep. 927."

The report indicates that there are encumbrances on the property paramount to the complainant’s mortgage, in the sum of $3,980.21 for taxes and interest due the municipality of Bergenfield. The master seems to have arrived at that sum through an official tax search of Bergenfield which was offered, and received, in evidence as of the time of the hearing; but the lien should have been fixed as of the time of the sale by the sheriff. The files in the case contain an affidavit by the complainant executed after the sheriff’s sale, and before the hearing, that the municipal lien amounted to $3,577.81. The defendants excepted to the figure of $3,980.21. I shall modify the master’s report to the extent of fixing the liens, paramount to the complainant’s mortgage, at $3,577.81; otherwise the master’s report will be confirmed.


author: Leyden, C. P. J.

text:
    Bergen County Court or Common Pleas.
    RUDOLPH WOLF, Jr., PETITIONER-APPELLEE, v. NATIONAL GROCERY COMPANY, RESPONDENT-APPELLANT.
    Decided January 21, 1936.
    Por the petitioner-appellee, Messrs. Breslin & Breslin.

    Por the respondent-appellant, Edward 0. West.

   Leyden, C. P. J.

This is an appeal from the finding of facts, determination and rule for judgment of the deputy commissioner made on September 3d, 1935 (Wolf v. National Grocery Co., 13 N. J. Mis. R. 650; 180 Atl. Rep. 625), wherein petitioner was awarded temporary disability from June 3d, 1933, to December 3d, 1933, at the rate of $6 per week, counsel and stenographic fees.

After reading the entire record 1 am unable to agree with the conclusion reached by the deputy commissioner.

In the morning of Saturday, June 3d, 1933, a load of packaged groceries consisting of thirty or forty pieces, was delivered by one of the respondent’s trucks and placed on the sidewalk in front of the store premises at Mo. 607 Main street, Hackensack, Mew Jersey. The petitioner, then seventeen years of age, was employed by the respondent as a clerk at a weekly wage of $6. His duties were to wait on customers and to carry the merchandise from the sidewalk into the store, unpack it and place it on the shelves.

About eleven o’clock A. M. he commenced the task of carrying in the packages, his second selection being a cardboard carton of Del Monte canned goods weighing about fifty pounds. He lifted this package from the sidewalk to an easy carrying position in both hands and proceeded four or five feet to a flight of three stairs leading into the store. As he stepped on the second stair he felt a sharp pain in his abdomen on the right side. He placed the carton on the floor, sat upon it, rested a while, and in five or ten minutes resumed the work and carried in the remainder of the load. He complained to the manager of not feeling well but no great significance was attached to his statement for he had in the past complained of not being in the best of health. He went home for lunch between one and two p. Mv told his mother of the pain in his abdomen, ate, and returned to work. He continued to perform his duties until closing time at half past ten or eleven o’clock that night. The pain in his abdomen continued throughout the next day, Sunday. In addition he suffered from a headache. He took a dose of epsom salts at eleven-thirty p. m. but obtained no relief. His condition became progressively worse until at three a. m. on Monday morning he vomited and requested the services of a physician. His mother then gave him an enema. At six o’clock a physician, upon examination, gave him a prescription and suggested immediate hospitalization. He entered the hospital at seven A. M. where his condition was diagnosed as acute appendicitis. He was operated upon at twelve noon, the surgeon finding acute suppurative appendicitis, or in other words, a true appendicitis. The appendix was not ruptured and there were no adhesions. He remained in the hospital for two weeks and had an uneventful recovery.

On May 2d, 1935, the petitioner filed his claim petition for compensation, alleging, inter alia, that his appendix was ruptured by the strain caused in the effort of lifting the heavy package of groceries. To substantiate this allegation and to prove there was a causal connection between the lifting and the appendicitis, petitioner called in his behalf a physician and surgeon, who, in response to an involved hypothetical question testified that the strain of lifting was the cause of the appendicitis. The doctor admitted that he had no practical experience in abdominal surgery for the past fifteen or more years; that his practice was limited to eye, ear, nose and throat. Upon cross-examination, when pertinent questions were put to him regarding his knowledge of traumatic appendicitis, the doctor’s answers were entirely unsatisfactory and upon being further pressed, lie left the stand in confusion.

The respondent’s doctors were more helpful. From their testimony it appears that the appendix is a slender process shaped like a worm and attached to an opening near the beginning of the large intestine. It is fonnd in the right lower quarter of the abdomen and its free end is closed and usually hangs downward. The appendix is not fastened to the body itself except at the point of its attachment near the beginning of the large intestine, and there is sufficient freedom so there is no contraction on it. As the abdominal contents move, it moves. When it becomes inflamed by reason of pus organisms or a foreign body, the result is the disease appendicitis. This condition manifests itself initially by either a sharp or dull pain and progresses with increasing pain, sometimes fever and vomiting, for varying lengths of time, depending upon the virulence of the infection, the period being twenty-four or thirty-six hours or even longer, until the appendix ruptures.

The disease may, in rare instances, result from direct or indirect trauma. For example, a penetrating wound in the abdomen with a perforation of the appendix may occasion the inflammation, or a heavy or violent blow in its region may force fecal matter or other intestinal contents into the appendix and thus produce its inflammation. Likewise where the appendix has become adherent to the adjacent tissue as a result of an old or chronic appendicitis, the muscular strain of lifting a heavy object may cause it to tear or rupture and aggravate the inflammation from passiveness to acuteness.

The instant case was pleaded and tried upon the theory that the strain of lifting the package caused the appendicitis. The allegation that the appendix was ruptured was abandoned at the hearing. The evidence, however, demonstrates—and I have had the benefit of the hospital records, in evidence by stipulation of counsel—that the operation disclosed petitioner suffered from a true, acute appendicitis, without adhesions, and the appendix was not ruptured. From a study of all the evidence it is manifest that the lifting of the carton of groceries and the pain of the initial attack of the disease were merely coincidental. The strain of lifting had no causal relation to the petitioner’s condition. The inflammation had matured. He would have been seized with the attack regardless of the activity in which he was engaged at the time. He s.uffered the affliction despite the lifting, not because of it.

I conclude, therefore, that the petitioner did not meet with an accident arising out óf and in the course of his employment, and I will sign an order dismissing the petition.


text:
    Bergen County Orphans Court.
    IN THE MATTER OF THE ESTATE OF LUCY I. McCORMICK, ALSO KNOWN AS MacCORMICK, DECEASED.
    Decided January 10, 1936.
    Por the petitioner, Walter J. Freund, pro se.

    Opposed, Kipp icé Ashen.

   Leyden, C. P. J.

This application, seeking the equitable intervention oí the court, was originally made in our Court of Common Pleas on petition and order to show cause, as a step in the cause there pending, but later transferred by mutual consent to this court. The litigants have agreed that the determination here will be effectual and binding in the action in the pleas.

The petitioner, Walter J. Preund, a duly licensed attorney and counselor-at-law of the State of ISTew Jersey, seeks to impress a lien for legal services rendered by him to Arthur T. W. MacCormick in the matter of the above estate, and to the extent oí the sum of $150 to discharge the writ of attachment issued out of the Court of Common Pleas in the matter of Charlotte C. McCormick, plaintiff, v. Arthur T. W. MacCormick, defendant. The facts are : On January 6th, 1930, Lucy I. McCormick died intestate, a resident of this county, leaving her surviving as her only heirs-at-law and next of kin Charlotte C. McCormick, a sister; Mildred L. McCormick, a sister; Mildred McCormick, an infant, daughter and only child of Gerard C. McCormick, a deceased brother; Hannah McCormick, widow of said Gerard C. McCormick, deceased; Arthur T. W. MacCormick, a brother, and Edmond Y. MacCormick, a brother. On October 18th, 1933, Charlotte G. McCormick qualified as administratrix of the estate of Lucy I. McCormick and letters of administration were issued to her.

Subsequently, she stated and filed her account as administratrix under citation so to do, and the brothers, Arthur T. W. MacCormick and Edmond Y. MacCormick, being dissatisfied with certain items of charge and discharge, filed exceptions thereto. Eor this purpose, Arthur T. W. MacCormick retained the petitioner to act as his proctor, it being agreed that the petitioner’s fee would be paid from MacCormick’s distributive share of the estate. Some of the exceptions were well taken and the administratrix was surcharged in the sum of $2,995.71. This resulted in raising the distributive share of Arthur T. W. MacCormick from a negligible amount to the sum of $646.68. On March 6th, 1935, by a decree of this court, it was ordered and adjudged that the balance remaining in the hands of the accountant, Charlotte C. McCormick, amounting to $3,233.44, be disposed of according to law, and thereupon Arthur T. W. MacCormick became entitled to receive his distributive share. It was not paid, but on March 25th, 1935, a writ of attachment was sued out of the Bergen County Court of Common Pleas at the suit of Charlotte C. McCormick, plaintiff, v. Arthur T. W. MacCormick, defendant, wherein it is alleged that on or about the 2d day of June, 1931, the plaintiff loaned to the defendant the sum of $600 to be repaid on demand. To the allegations of the complaint, defendant has filed a general denial and the issues thereby presented are awaiting determination.

Pursuant to the writ, the sheriff of the county of Bergen attached in the hands of Charlotte C. McCormick, as administratrix, the distributive share of Arthur T. W. MacCormick.

MacCormick, though anxious and willing to compensate Mr. Ereund in the sum of $150 for the services rendered, is thus prevented from so doing, and the petitioner, anticipating and rightly so, that the attachment action may defeat his just claim, seeks as one of its officers, the protection of the court.

I think his contention is meritorious.

From the earliest times, founded in the common law, an attorney has had the right to retain possession of all documents, money, or other property of his client coming into his hands professionally until a general balance due him for professional services is paid. This right, sometimes called the general or retaining lien, extends to any general balance that may be due to an attorneys for professional services, either in the particular matter with which he came into possession of the things retained or in any other matter. 6 C. J. 765, 766, ¶¶ 362, 363.

In 1914 our legislature recognized the necessity of affording greater protection to attorneys, counselors and solicitors from unscrupulous clients and created the familiar statutory lien. The purpose was to broaden the rights of attorneys in the matter of their compensation, and to impress a lien upon the client’s cause of action therefor, oven in the event of an amicable settlement. Pamph. L. 1914, ch. 201, p. 410; Cum. Supp. Comp. Stat. 1911-1924, p. 1805, § 116-76.

The facts presented here do not give the petitioner the right of the common law retaining lien, for the money did not come into his hands professionally. Likewise he can take no benefit from the statutory lien of 1914, for the proceeding in which his services were rendered was not commenced by the service of a summons and complaint or the filing of an answer containing a counter-claim in an action at law or the filing of a bill of complaint or petition in the Court of Chancery.

The petitioner is not without remedy, however. He is entitled to the equitable intervention of the court upon another theory, that of equitable assignment, one which has also been judicially recognized from very early times. This right, sometimes inaccurately called the attorney’s charging lien, is the right to have the fees and costs due to him for services in a suit, secured to him out of the judgment or recovery of that particular suit. The attorney, to the extent of such services, is regarded as an equitable assignee of the judgment. 6 C. J. 766, ¶ 364. The right of the attorney to the equitable intervention of the court has been recognized and enforced in Brown ads. Hendrickson, 39 N. J. L. 239; Terney v. Wilson, 45 Id. 282; Phillips v. MacKay, 54 Id. 319; 23 Atl. Rep. 941; Pride v. Smalley, 66 N. J. L. 578; 52 Atl. Rep. 955, and Delaney v. Husband, 64 N. J. L. 275; 45 Atl. Rep. 265.

Under the doctrine as enunciated in Terney v. Wilson, supra, it would appear that the attorney’s right extends not only to cover the court costs for which he is responsible, but also to cover the fees due him by contract or under a quantum, meruit.

The decree of this court on the final account, entered March 6th, 1935, was the law’s last word in the judicial controversy concerning the stewardship of the administratrix. It judicially determined that there was in the hands of the accountant the sum of $3,233.44 to be disposed of according to law. This decree was in every sense a judgment conclusively determining, with the aid of a simple mathematical calculation, the distributive share of MacCormick. It is, in my opinion, such a judgment or order as is contemplated in the doctrine of equitable assignment for the protection of the attorney.

The petitioner, pursuant to his agreement with MacCormick, labored industriously and skillfully in the preparation for and hearing of the exceptions to the account. As a result of his efforts the accountant was surcharged approximately $3,000. This represents practically the entire fund now in the hands of the accountant for distribution. His services were not only of value to his client but to the estate generally.

The personal estate consisted principally of money in the bank with a few odd household effects of no great value and, although no decree of distribution was taken by the accountant or any of the distributees, the accountant acquiesced in the decree on the final account, and, by her action in suing out the writ of attachment and levying upon MacCormick’s distributive share, she effectively set that portion of the estate apart as MacCormick’s property, and by implication, at least, admitted that she, as administratrix, was indebted to him in that sum.

The agreement between the petitioner and his client that the petitioner should be paid for his services out of the distributive share to be recovered in the sum of $.150 as compensation for his services constituted a valid, equitable assignment of that share pro tanlo which attached as soon as the decree was entered on March 6th, 1935. Terney v. Wilson, 45 N. J. L. 282. ft was not until March 25th, 1935, that the writ of attachment was issued and the share levied upon. The equitable right acquired by Mr. Freund was prior to any rights Charlotte C. McCormick may have gained by virtue of the writ of attachment, and the effect of that writ must be limited to so much as remains after satisfying the petitioner’s claim of $150.

The Orphans Court, on the accounting, allowed a counsel fee of $150 to Mr. Freund to be paid by the accountant personally. It is now insisted in her behalf that by reason thereof, petitioner has been fully and completely compensated for his services to his client in the cause, citing King v. Foerster, 61 N. J. Eq. 584; 47 Atl. Rep. 505, wherein Magie, Ordinary, pointed out that such an allowance is not to be treated as a penalty imposed upon a delinquent trustee and graduated by the court’s sense of his misconduct, but only as an imposition upon the trustee of the expense which the beneficiary has been required to pay to compel a proper account.

It is admitted that no attempt is made to dictate the amount which petitioner may charge his client for the services rendered but insisted that any amount in excess of the allowance made by the court must be liquidated by the client. That is exactly what is accomplished by this proceeding. The argument fails to take into consideration the services incidentally rendered by Mr. Freund to the estate generally, and it may well be that the court had in mind that fact in fixing the amount of the allowance against the accountant.

I will sign an order accordingly.


author: John C. Wegner, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARY KAZAZIAN, PETITIONER, v. GEORGE SEGAN AND MORRIS KATZ, TRADING AS NEW YORK GIRLS COAT COMPANY, AND MAX DARDICK, RESPONDENTS.
    Decided January 14, 1936.
    For the petitioner, Benedict Krieger.

    For the respondent New York Girls Coat Company, Slcefftngton «£• Walicer (by James J. Blcejjington).

    For the respondent Max Dardick, Herbert G. Dolan.

   * ******

It appears that on November 1st, 1927, the decedent, Vera Kazazian, while crossing the street was struck by a taxicab and suffered a fracture of the left ankle. It appears that she recovered from this injury and in the year of 1929 she received a strain to the left sacroiliac joint for which she was treated and.the medical testimony was to the effect that she suffered a separation of the left'sacroiliac joint, she, however, subsequent to this continued working and on June 20th, 1932, while carrying a bundle of cloth and attempting to open a door she twisted her back, felt a pain, and was subsequently .treated by various doctors at various hospitals, as a result of the accident on June 20th, 1932. A further petition was filed under date of November 23d, 1932, claiming compensation and after the hearing an award was made allowing her twenty-six weeks temporary disability and fifteen per cent, of total permanent disability, amounting in all to one hundred and one weeks, at the gate of $10 per week. In making this award the prior condition of Vera Kazazian was also considered by 'the referee and in sustaining the bureau’s award Common Pleas Judge Lloyd B. Thompson of Uiiion county who reviewed ti^e testimony on appeal, stated in part as follows:

“I .think the testimony warranted the finding of the referee that not all the original disability is due to the accident in question in this case, that she was suffering prior to this accident from an.injury previously suffered in 1929, and that the present injury was not merely, an aggravation of a previous eonditión that was quiescent but that she actually complained of suffering before the most recent injury.” Subsequent to the award she was again treated for her back ahd the testimony of various witnesses, both medical and lay, was that she suffered attacks of pain, talked and acted irrationally, bit her hands, her sleep was affected, she at no time obtained relief from pain and the wound in back never healed.

On June 20th, 1934, petitioner met'death by hanging. It is alleged that due to the various symptoms complained of that in a delirium of frenzy petitioner committed suicide in the manner described above.

The general rule followed where it is alleged that suicide is the result of the trauma is as follows:

Where there follows as a result of a physical injury an insanity such as to cause the employe to take his own life through an unaccountable impulse or in a delirium of frenzy without conscious volition to produce death having knowledge of the physical consequence of the act, there is a direct and unbroken connection between the injury and the death, but where the resulting insanity is such as to cause suicide through a voluntary willful choice determined by a moderately intelligent mental power which knows the purpose and the physical effect of the suicidal act. even though choice is dominated by a disordered mind, then there is a new and independent agency, which breaks the chain of causation arising from the injury.

Tins doctrine was followed in the case of In re Sponatski, 108 N. E. Rep. 466; In re: Charles Ebner the petitioner was still under temporary, became insane, was committed to an asylum and committed suicide. It was held non-compensable by the Ohio industrial commission. 1 Bulletin No. 7 p. 47.

In Withers v. London Brighton, &c., Railway, 9 B. W. C. C., it was held no causal connection was shown- between death by suicide and an accident in employment. It was.said that for suicide to be by accident the suicide must be the effect of insanity and the insanity must be the result of the accident. In this case petitioner suffered an injury to his thumb, same became infected and took a long time in healing. Petitioner became depressed and suffered from neurasthenia subsequently committed suicide by throwing himself in front of a train.

Lord Couzens Hardy, M. R., states in this case: “To make death by suicide during insanity compenasble under the act it must be shown that there is a causal connection between the accident and the insanity and the suicide and that a mere conjecture alone will not suffice and applying the rule there laid down to the case at bar he held that the applicants did not meet the burden of proof which was on them to show, that the suicide was the result of the accident, there being no proof whatever of actual injury to the brain. The mere showing that there was no insanity before the injury, that symptoms of neurasthenia began to develop some two or three months afterwards, and that the depression and subsequent delusion centered on the injury and its consequences, real or imag-ined, did not amount to proof that the injury was the cause of’the mental sjunptoms. I think as the Scottish courts said, there must be some direct evidence of the insanity being as the result of the. accident—something more than the insanity being subsequent in turn to the accident. The legal causation-must be established and proved.”

In re Industrial Commission of Ohio v. Brubaker, 129 Ohio St. 617; 196 N. E. Rep. 209 (1935)—Decedent was injured in the course of his employment while lifting a box from the floor and placing it on a table. The injury consisted of a strain of the right hip, the psoas magnus muscle being-involved. Decedent was under continuous treatment for the condition by an osteopath. An award of compensation for the injury was made. Within a week after the award was made, but before he received the check decedent committed suicide. The award made for the injuries was paid to the widow, claimant herein, but she claimed compensation for decedent’s death on the ground that his injury lead to mental derangement and suicide. The evidence indicated decedent abhorred the thought of being a cripple and burden on his wife, that he had financial worries, a,nd had talked of suicide. The industrial commission denied the claim, but upon trial by jury in the Court of Common Pleas there was verdict and judgment for claimant, which was affirmed below. In reversing the judgment below and entering judgment for the commission, the court held that the evidence was not sufficient to establish that decedent committed suicide as the result of insanity caused by his injury at work. The court said:

“This court has held * * * that there can be no recovery for injuries except such as are traumatic in their nature. If [claimant] is permitted to recover in this case, it must be because [decedent] received an injury in the course of his employment, which injury produced mental derangement to the extent that he could not entertain a fixed purpose to take his own life, and that the taking of his own life, was the direct-result of that lack of purpose that characterizes an insane mind. The mere fact of suicide presents no presumption of insanily. There is a general presumption that all men are . sane until they are proven to be insane * * *. Analyzing^ this testimony [for claimant] the doctor simply testified that the facts [decedent] was injured, and was Hot working, and could not work, and did not know whether he was going to work, had an effect upon his mind. In other words, he worried because he was injured, not because the injury directly affected his nervous system so as to produce worry. This-court will not weigh testimony; but we are unable to find in this record any testimony from which reasonable minds could reach different conclusions.”

After giving this matter very careful consideration I find as a fact and hold that the petitioner on the morning in question by her preparation for the act showed a moderately intelligent mental power which, knew the purpose and physical effect of the suicidal act. The .selection of a tree some distance from her home, the arranging of the chair, the bringing of a sheet, the throwing of the sheet over the limb of the tree, her arranging the sheet about the neck, the tying and the other events leading to the event itself were only those of one with moderately intelligent mental power.

We must also consider that the injury of 1929 added also to her condition and must be considered. I also feel, and might comment casually in passing that in my opinion, the petitioner has failed to sustain the burden of proving dependency upon the decedent, but I find it unnecessary to dwell upon this phase of the case as I am convinced and find as a fact that there is no connection between the accident alleged and the act of suicide on the part of the decedent, and I am consequently dismissing the petition.

* :|s * * * *

John C. Wegner, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANK KUCZYNSKI, PETITIONER, v. C. W. HUMPHREY, RESPONDENT.
    Decided January 9, 1936.
    For the petitioner, Joseph‘T. Karcher.

    For the respondent, Francis X. Kenneally.

   By stipulation between the parties it is agreed that on June 8th, 1929, the petitioner, Prank Kuczynski, was in the employ of the respondent as a carpenter, and that his weekly wages during the time of employment with the respondent weré $32 a week, entitling the petitioner to the compensation rate of $20 per week; that while so employed the petitioner was injured and the said accidental injury arose both out of and in the scope of the employment, and for the said accidental injury the petitioner received compensation from the respondent over a period of eighty and four-sevenths weeks for temporary disability and further compensation benefits for two hundred weeks, equivalent to forty per cent, of total permanent disability; that the said compensation payments were made in full by the respondent to the petitioner, Prank Kuczynski, and upon the said stipulations I find that the petitioner suffered an accidental injury which arose both out of and in the scope of his employment, and that the said claim comes within the provisions of the aforesaid Workmen's Compensation act.

The present supplemental petition seeks additional compensation beyond the sums so paid by the respondent and alleges that because of the injuries set forth in the said supplemental petition, to wit: ■ “broken back—broken right foot. Head injury resulting in my commitment to IST. J. State Hospital on Oct. 19, 1934 by Doctors Weber and Meacham,” that the petitioner is entitled to further compensation benefits. The evidence presented on behalf of the petitioner attempts to show that subsequent to the accidental injury referred to the petitioner, 'because of his accident, ultimately became insane so that it was necessary to confine him to the State Hospital for the Insane at Trenton, New Jersey. The testimony of Dr. Adrian TJrbanski, the first attending physician, indicates that the injuries suffered by the petitioner were a compression fracture of the fourth dorsal vertebrae, a fracture of the posterior portion of the fifth lumbar vertebrae, a fracture of the astragalus of the right foot, and also of the oscalcis and scafEoid bones of the foot. Dr. IJrbanski treated the petitioner for these injuries and upon discharge from treatment the petitioner suffered disability equivalent to forty per cent, of total disability. From the testimony of Dr. Urbanski nowhere does it appear that the petitioner suffered injury to his head, or to his brain; nor does it appear from the testimony that any of the treatment rendered by the attending physician was directed toward such injury. Dr. J. B. Spradley, appearing as a neurologist and expert on mental diseases, testified on behalf of the petitioner and stated that in his opinion the trauma which the petitioner suffered caused an injury to the brain substance sufficient to produce a condition diagnosed as post-traumatic constitution. Dr. Karl Kothchild likewise testified that in his opinion the condition diagnosed as post-traumatic constitution was due to an injury to the brain substance and caused the petitioner, Frank Kuczynski, to be committed to the aforesaid mental institution. On behalf of the respondent Drs. Jack Blumberg and M. Weinstock Bergman, who appeared as expert neurologists, testified that the condition from which the petitioner, Frank Kuczynski, is now suffering is in no way related to, nor caused or aggravated by the said accidental injury of June 8th, 1929.

From all of the evidence of the medical experts I do find and determine as a fact that the injuries which the petitioner suffered in his accidental injury of June 8th, 1929, were fractures of the oscalcis and scaffoid bones of the right foot and of the astragalus bone of the right foot, fracture of the posterior portion of the fifth lumbar vertebrae, compression fracture with collapse of the anterior portion of the body of the twelfth dorsal vertebrae, for which injuries the respondent has paid temporary disability compensation and permanent disability compensation equivalent to forty per cent, of total disability. I do further find as a fact that the X-rays of the head were negative for any fracture or brain injury.

Having fully considered not only the testimony of the petitioner’s experts, but also the testimony of Dr. J. B. Spradley and also Dr. Karl Bothehild, and also Dr. Jack Blumberg and Dr. M. Weinstock Bergman, who appeared as neurologists for the respondent, I find and determine as a fact that the condition from which the petitioner is now suffering is in no way related to his accidental injury of June 8th, 1929, nor was the said accident either an activating, aggravating or causative factor, especially in view of the fact that the evidence fails to disclose that the petitioner, Frank Kuczynski, suffered any injury or damage to the brain substance, upon which the theory of Dr. J. B. Spradley and Dr. Karl Bothchild is predicated.

Having considered the testimony of the witness, Dr. Eugene Haubner, who appeared as an orthopedic expert on behalf of the petitioner, and Dr. Joseph Koppel, who appeared as an orthopedic expert on behalf of the respondent, I do find further and determine as a fact that the physical disability, aside from the mental condition, suffered by the petitioner because of his accidental injury does not exceed forty per cent, of total disability, compensation benefits for which have already been paid by the respondent.

The testimony of the medical experts is conflicting in character and squarely presents a factual question. Having reviewed not only the medical testimony, but also the testimony of the various lay witnesses who testified as to change in personality of the petitioner subsequent to his accident, and having considered his admitted behavior prior to his accident, I find that the testimony presents a disputed factual question. A careful study of the cases reflect that mental conditions following industrial injury is frequently a matter of legal dispute from the standpoint of compensable liability. Where no reasonable cause, or material basis for the psychosis can be shown, linking the condition, more or less, as a likely sequence to the preceding injury, it has been held that the chain of causation has been broken, thus nullifying the industrial liability. In the matter of Withers v. London B. & S. Co. Railway, W. C. Ins. Ref. 317; 15 N. C. C. A. 349, the court in denying compensation said in part:

‘A think, as the Scottish court said, there must be some direct evidence of the insanity being a result of the accident—something more than the insanity being subsequent in turn to the accident The legal causation must be established and proved.”

In the case of Charles Edner Claim No. 1320, Ohio Indus. Acc. Bd. 1913, claim was disallowed as there was nothing to indicate that insanity resulted from the injury.

Both Dr. J. B. Spradley and Dr. Karl Bothehild base their diagnosis upon a hypothesis that the petitioner, Frank Kuczynski, suffered a concussion of the brain and some damage to the brain substance. There is nothing in the testimony to sustain the hypothesis upon which the said witnesses based their findings, and I further find and determine as a fact from the evidence presented that the petitioner did not suffer a concussion of the brain, nor damage to the brain substance. From the testimony offered, especially the conflict of opinion, I find and determine as a fact that the petitioner’s accidental injury of June 8th, 1929, in no way caused the present mental condition, nor did it activate or aggravate the said condh tion, and I am of the opinion from the evidence that the petitioner has been fully compensated for any physical injury he may have suffered because of the said accident.

Accordingly, the supplemental petition for increased disability benefits is hereby dismissed.

John C. Wegner, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANTONIO PERRONI, PETITIONER, v. PETER FARLEY, RESPONDENT.
    Decided January 7, 1936.
    For the petitioner, Chazin & Ohazin.

    For the respondent, John J. Fallon.

   The attorneys for the respective parties prayed leave to submit briefs in behalf of the respective parties, petitioner and respondent, which prayer was granted, and snch briefs having been duly filed, and the referee aforesaid having been duly granted by the commissioner of labor additional time within which to determine said matter.

H« ❖ Hi Hi H< Hi

2. The proofs manifest that on the evening of May 1st, 1934, the respondent made an arrangement with the petitioner whereby the petitioner on the morning of the following day, May 2d, 1934, became an employe of the respondent, as a laborer, to assist certain contractors whom the respondent had previously engaged to make certain alterations to premises known as Eo. 1299-a Paterson Plank road, Secaucus, Eew Jersey; that the work which said petitioner was engaged to perform was to assist as laborer the aforesaid contractors in the removal of flooring of the store floor of said premises, and to render assistance in the breaking and removal of concrete steps which were in front of said store premises, and carrying materials snch as lumber, brick and cement to and from the premises which were being altered by said contractors; that said petitioner was employed at the rate of fifty cents per hour, or $4 per day for eight hours per day; that in the engagement by the respondent of said petitioner for the rendition of services as laborer aforesaid there was no agreement between said parties as to the length of time that said petitioner was to work on the job which he had been employed to work upon, and that the respondent was privileged to discharge said petitioner from said employment at any time and without notice, and that the petitioner was privileged to cease working for said respondent at any time and without notice, and that such employment was only for the one particular job of assisting as laborer aforesaid in alteration aforesaid.

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4. The proofs manifest that the petitioner was one accustomed to engage himself as a laborer for or with anyone who would employ him in such respect.

5. The proofs manifest that the petitioner was in the employ of the respondent as laborer aforesaid for a period of approximately two and one-half days, that is from Wednesday, May 2d, 1934, to Friday, May 4th, 1934. The petitioner, by his petition, set forth that on the second day of his employment with the respondent as laborer aforesaid, to wit, on May 3d, 1934, at about two o’clock p. M., while engaged in the breaking of concrete steps, and in the use of an eighteen-pound sledge hammer in the doing of said work, he felt a snap and sharp pain in his back. The proofs manifest that petitioner made no complaint thereof to the respondent or to any other person at the time of such alleged happening, and that he continued in the performance of his usual work as laborer throughout the remainder of said day, without complaint, and that he resumed his work as laborer on the following day, May 4th, 1934, and continued in the performance of such work throughout said day until such time as the respondent considered that he was no longer in need of the petitioner’s services, when his services were dispensed with. The proofs manifest that the petitioner did not at any time make known to respondent, or to anyone in respondent’s behalf, nor did he make known to any of his fellow employes up to the time when he ceased to be an employe of the respondent that he met with a mishap such as alleged in his petition, or was in anywise hurt or injured during the course of his employment with the respondent, as laborer aforesaid. The proofs manifest that said petitioner did not at any time give any notice to, or in anywise make known to, respondent that he had suffered any mishap, hurt or injury while employed by the respondent as laborer aforesaid prior to the latter part of September, 1934, at which time Mr. Chazin, as attorney for the petitioner, made known to said respondent, by telephone conversation with the latter, that said petitioner claimed to have met with the mishap, mention whereof is made in the petitioner’s petition which was filed November 1st, 1934, and the proofs disclose that the respondent, when informed thereof by said Mr. Chazin, denied that said petitioner had met with any mishap, hurt -or injury while in the employ of said respondent on May 3d, 1934, or at any other time within the period of three days he was employed as laborer by said respondent.

6. The proofs manifest that the only semblance of notice alleged to have been given to the respondent, in the petitioner’s behalf, of the alleged happening to the petitioner on May 3d, 1934, was such as testified to herein by the petitioner’s son, Antonio Perroni, Jr., who stated that on a Saturday morning in the early part of May, 1934, he visited the scene of the alteration work which had been carried on at No. 1299-a Paterson Plank road, Secaucus, New Jersey, at which time he talked to the respondent and said his father was unable to go to work, and that he further testified, “I said it was while he was working on the job breaking concrete steps he was hurt.” Such alleged conversation the respondent denied. There was no testimony submitted to corroborate the aforesaid statement by Mr. Perroni, Jr., to the respondent. Such is the full extent of notice as manifested by the proofs, prior to the communication aforesaid between the petitioner’s attorney, Mr. Chazin, and the respondent in the latter part of September, 1934.

I do hereby further find and determine in the matter sub judice three questions were submitted to me for my consideration and determination—

(1) Casual emplojunent.

(2) Accident, if any.

(3) Notice of such accident within statutory period. My conclusions with regard thereto are as follows:

(1) That the employment of the petitioner by the respondent was casual within the purview of section 23, subdivision (c) (Cum. Supp. Comp. Stat. 1911-1924, p. 3885, § **236-32, subd. 23(c), of the statutory enactment aforesaid, which defines “casual” and divides same into two classes: (1) That which is in connection with employer’s business; (2) that which is not in connection with employer’s business. I do further find and determine that the petitioner’s employment by and with the respondent as manifested by the proofs herein was neither regular, periodic or recurring, and therefore must be classified as “casual.” In Forrester v. Eckerson, 107 N. J. L. 156; 151 Atl. Rep. 639, the court defines “regular.” “periodic” and “recurring” as follows:

“The words, as used in this act, connote that employment is regular when it is steady and permanent for more than a single piece of work; recurring, when the work is to be performed at some future time by the same party, without further engagement; and periodic, when the work is to be performed at stated intervals, without further engagement.

“In the case under consideration there is nothing to suggest regularity of employment, because upon completion of the particular job, plaintiff would return to his usual and regular employment with the Butterine Company, nor is there any testimony that it was in contemplation that he should return to defendant’s home at any time, either fixed or indefinite, to do any work. If other work was ever to be done, a new employment would be entered into. The- employment, therefore, was casual.”

The above cited case, and the rule of law and the facts stated in the aforesaid quotation therefrom, is, in my judgment, applicable to the case sub judice.

The petitioner’s petition is therefore dismissed.

Notwithstanding my finding and determination that by reason of the fact that the employment of the petitioner with the respondent, was casual, and by reason thereof the workmen’s compensation bureau is without jurisdiction in the premises, I deem it appropriate to hereby make known that my consideration of the testimony and proofs in the case warrants me in finding and determining, and I therefore do hereby find and determine, upon the proofs herein, that the petitioner has failed to prove—(1) the happening of the alleged accident whereby the petitioner claims to have suffered an injury arising out of and in the course of his employment, casual though it be; and (2) that the petitioner has failed to prove the giving of statutory notice of the alleged happening of May 3d, 1934; and (3) that the proofs fail to show that the respondent had any notice whatever of the alleged happening to the petitioner on May 3d, 1934, prior to the telephone message communicated to him in thé latter part of September, 1934, by the petitioner’s attorney as mentioned hereinabove.

It is, therefore, ordered that the petitioner’s aforesaid petition be and is hereby dismissed.

John C. Wegner, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN FRAYLER, PETITIONER, v. UNITED CORK COMPANY, RESPONDENT.
    Decided December 28, 1935.
    For the petitioner, Robert Kasdin.

    For the respondent, Richard W. Baker.

   i-i ij; ;J:

While the petitioner was in the employ of the respondent as a laborer and while engaged in his duties, his right foot became caught in wire while binding a bale of cork and injured his right leg and at the time of the accident the petitioner was in receipt of wages in the sum of $16 per week.

i\i s¡{ :j? % % % £

The matter coming on to be heard the court took testimony for the purpose of determining whether the petitioner actually did suffer an accident while in the employ of the respondent, and whether he gave notice to the respondent pursuant to the statute in such cases made and provided and the court also heard testimony for the purpose of determining whether the petitioner’s alleged injuries pre-existed the accident. The respondent alleged as a matter of defense that the petitioner suffered from a pre-existing condition that was in no way affected by the alleged accident on November 21st, 1934. The respondent produced medical and lay witnesses. The lay witnesses in their testimony referred to the petitioner as having complained of rheumatism, but were not certain as to same being the left or right leg. The testimony of the medical experts of respondent was to the effect that from the X-rays as well as of their own opinion that the condition had pre-existed and could not result from the accident as described and was in no way aggravated. The petitioner’s medical expert claimed the condition could result from the accident. Having considered the testimony the court was of the opinion that where the respondent enters a defense of a previous condition the respondent must prove such condition to have existed without any reasonable doubt. To merely state that in the opinion of the experts it did exist is not sufficient.

I therefore find and order * * * that judgment be entered in. favor of the petitioner for permanent disability of twenty-five per cent. (25%) of the right leg. * * *

John C. Wegner, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HELEN CASSARO, PETITIONER, v. PEERLESS COLOR COMPANY, INCORPORATED, RESPONDENT.
    Decided January 10, 1936.
    Tor the petitioner Helen Cassaro and children, Semer •& Fine and Sidney W. Gudin.

      For the petitioner Dan Cassaro and mother, Frank Calabrese and J. Alexander Pignone.

    For the respondent, Clarence B. Tippell.

   A petition was filed herein May 25th, 1935, on behalf of Helen Cassaro, and two minor children, * * *. A former petition had been filed in name of Dan Cassaro, deceased, on behalf of the mother and minor brother of deceased as claimed dependents; and by mutual agreement of respective attorneys, both cases were heard and tried together before the same referee.

The whole question involved in the cases sub judice is one of dependency.

Decedent met with an accident arising out of and in the course of employment. Surviving him are a wife and two minor children and his mother, a widow with several children, only one of which is under the statutory age of sixteen.

From the facts it would appear that decedent lived with the wife for a time, then left her. Subsequently through the activity of the poormaster a court order was issued making mandatory the payment of $5 per week by decedent to the wife. This order was issued prior to the birth of the second child. Decedent was for a time incarcerated in jail for noncompliance with said order and subsequently released and resumed employment. When not living with his wife he made his home with his mother. His mother’s means of support was from $8 to $15 per week from decedent, $8 to $12 from a daughter, Margaret, when she was employed, and $10 per month from the widows’ pension bureau for William, who is under sixteen.

The wages received by the decedent at time of death was $20 per week.

Under the Schmid v. Stanton Forging Co., 104 N. J. L. 471; 142 Atl. Rep. 4, a widow not a member of deceased’s household but receiving $10 per week by order of a Pennsylvania court was held a total dependent. The case sub judice is analogous. I am holding the wife and two children in this instance as full dependents.

We must now consider the mother of decedent and the brother under sixteen. At the most the mother is only a partial dependent. Decedent’s contribution was on an average approximately fifty per cent, of his wages. She had an income from her daughter and a widow’s pension for the son, William. Under our cases and they are many, the mother would be considered partially dependent. As to the son, William, who is under sixteen, in view of the fact that the widow’s pension payment of $10 per month is payable due to his existence I do not believe he should be considered as a partial dependent-. That sum is paid for his maintenance until he is sixteen.

The statute itself is equitable as well as remedial. In the instant case the minimum rate of $10 per week applies. We have three full dependents as well as one partial. An equitable distribution of this amount based upon three full dependents and one partial dependent would be to allow each full dependent twentjr-eight and one-half per cent, of the compensation rate and the partial dependent fourteen and one-half per cent, of the compensation rate payable. If we were to consider the mother on basis of only partial dependency her amount would not exceed this.

I am, therefore, awarding compensation as follows: To the widow, Helen Cassaro, and two children: $8.55 per week for three hundred weeks.

To the mother of decedent, Lucia Cassaro, $1.45 per week for three hundred weeks.

At the termination of the three hundred weeks then $10 per week to be paid to the widow for the two children until youngest child reaches the age of sixteen.

This award to be modified upon remarriage of widow or mother or by death of any of parties concerned.

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I am disallowing bill presented by poormaster under section 22 of the act.

* if; H* * * * ❖

John C. Wegner, Referee.


author: Per Curiam.

text:
    C. V. HILL & COMPANY, PROSECUTOR, v. AUGUSTUS N. DRAKE, RESPONDENT.
    Argued October 2, 1935
    Decided January 23, 1936.
    For the prosecutor, Merritt Lane.

    For the respondent, Samuel D. Lenox.

    Before Justices Case and Bodine.
   Per Curiam.

On August 5th, 1929, Augustus N. Drake was injured by an accident while in the employ of C. V. Hill & Company. On December 10th, 1930, the bureau awarded compensation. The pleas, November 25th, 1931, affirmed the award as made. Drake had appealed.

Before or shortly after the appeal was taken, Drake, by at least two separate documents, petitioned the bureau to review, under section 21f of the Compensation act, claiming his disability had increased. These petitions remained in abeyance until after the disposition of the matter by the pleas. The proofs, on the hearing on the petitions to review, disclosed that the disabilities had increased. One petition to review was verified December 16th, 1930, and an amended petition was verified January 2d, 1931. Just when these petitions were filed does not appear. Nevertheless, the bureau took jurisdiction, awarded increased disability and- the pleas affirmed. What petitioner sought to do was to save his right to reopen and at the same time take his appeal. This we do not think he can do. He has a right to appeal and a right to apply to have the case reopened, but he must pursue one or the other remedy. lie cannot both appeal and petition the bureau to review its findings. Nor can we see how an oral request to take further proofs before the determination of the bureau can be the basis of any rights. Although the act is intended to be remedial the orderly procedure demands that there be a finality to determinations which are subject to appeal, and that if a remedy by review be sought it be made in a timely manner and not while the applicant is pursuing an appeal. In a common law action a petition for a new trial could not be countenanced as keeping that remedy open after an appeal was taken. A rule of procedure so simple must be regarded as known to all members of the bar. The petitions to review had no validity until after the disposition of the appeal. Then they were too late.

The award for increased compensation will be set aside, with costs.


author: Case, J.

text:
    JOHN EARRUSSO AND MARY EARRUSSO, PROSECUTORS, v. TOWNSHIP OF EAST HANOVER, A MUNICIPAL CORPORATION IN THE COUNTY OF MORRIS, AND STATE OF NEW JERSEY, RESPONDENT.
    Submitted October term, 1935
    Decided January 27, 1936.
    Before Justices Case and Bodine.
    For the prosecutors, Thomas Brunetto.

    For the respondent, Harry Amsterdam and Abraham M. Herman.

   The opinion of the court was delivered by

Case, J.

Prosecutors, by writ of certiorari, challenge the legality of an ordinance adopted in 1931 by the township committee of the township of East Hanover. The ordinance prohibits the dumping, depositing or placing in the township of East Hanover of any garbage collected outside of that township and provides a penalty for violation.

Prosecutors own a tract of isolated farm and swamp land whereon they conduct a piggery. To those premises the prosecutors have for many years—antedating the passage of the ordinance—carted refuse, ashes and garbage. In 1934 they contracted with the town of Morristown for the collection of garbage in that town and since then they have brought that garbage to their farm property in East Hanover township, primarily as food for their pigs but using the excess as fertilizer. Charges of violation have been made against an employe of the prosecutors and now, for the first time as we are told, against the prosecutors themselves, and the present writ is doubtless to test the ordinance as against those prosecutions. Under the circumstances we find no laches.

Prosecutors first contend that the township had no statutory authority to pass the municipal enactment. We know of no such authority and none is brought to our attention.

Respondent cites the Home Rule act, chapter 152 (Pamph. L. 1917, art. XXIII, § 1; Cum. Supp. Comp. Stat. 1911-1924, § *136-2301, p. 2243), which by its terms gives the governing body of a municipality power to provide for the cleaning of streets of the municipality and for the collection, removal and disposal of ashes, garbage and other refuse; but that is clearly aimed at something different. Respondent further cites section 7 of the same article (Cum. Supp. Comp. Stat. 1911-1924, § *136-2307, p. 2244), which, in giving a municipality power to procure by purchase, condemnation or lease, unimproved lowland for the disposal of indestructible ■waste, directs that no such acquisition may be had outside the corporate limits without the consent of the governing body and of the board of health of the municipality in which the land is situated; and that, too, is quite another matter.

Respondent’s argument proceeds upon the assumption that garbage is in and of itself a nuisance and a menace to the public health, and that because that is so the township committee has plenary power thereover by ordinance. This is summarized in its assertion that “it is almost elementary that under the police power the township committee would have the right to adopt any ordinance to protect the health and public welfare of its inhabitants.” The police power is inherent in the sovereignty. Municipalities have no legislative power except as it is granted to them. Atlantic Coast, &c., Co. v. Public Utility Board, 92 N. J. L. 168; 104 Atl. Rep. 218; Kosich v. Dover Township, 112 N. J. D. 281; 170 Atl. Rep. 248. True as to all municipalities this is of course true as to the township, an elementary form of municipal government. Ordinance powers over matters therein pertaining to health are ordinarily conferred upon the local board of health, Board of Health act, section 12 (2 Comp. Stat., p. 2663, amended Cum. Supp. Comp. Stat. 1925-1930, § 89-12, p. 806); e. g., the regulation, control and prohibition of the keeping of animals (subdivision IY) including pigs (Wogish v. Board of Health, &c., Moonachie, 114 N. J. L. 261; 176 Atl. Rep. 602), the regulation, control and prohibition of the accumulation of offal and all decaying matter (subdivision Y) and the prohibition and removal of nuisances (subdivision YI). It does not follow that because the presence of garbage may be harmful to health the township committee may legislate thereon.

No authority having been shown for the exercise by the township committee of legislative powers over the subject-matter, we conclude that the ordinance is void.

It is unnecessary to consider the remaining points.

The ordinance will be set aside, with costs.


author: Lyon, C. P. J.

text:
    Middlesex County Court of Common Pleas.
    SIFRI SHOE SHOPS, INCORPORATED, PLAINTIFF, v. REGINA MAHLER AND MAURICE BRODY, DEFENDANTS.
    Decided January 20, 1936.
    For the motion, Henry K. Golenbock.

      Gonlm, Julius Kass.

   Lyon, C. P. J.

The question involved in this case is set forth in the brief of the attorney for the defendant as follows:

“The sole question for decision in this case is whether a landlord, defendant in replevin, may re-replevin chattels which he has previously distrained for rent, at the snit of the tenant who has caused a writ of replevin to be issued in accordance with the provisions of section 6 of the Distress act. 2 Comp. Stat., p. 1940.”

I do not think he may. 1 have read the brief of the defendant and do not find any case therein cited which is clearly in support of that contention, nor can 1 find any case in New Jersey which will support it. I am inclined to think that the reason for this is the very unusual situation of a landlord, who has received a bond in a replevin action which practically secured him for his rent, wanting the goods which lie has distrained. 1 assume from what has been stated that in this case it grows out of a desire of the landlord to obtain certain store fixtures which annot be conveniently removed. Be that as it may it cannot affect the legal question involved.

The reason for a replevin action in case of a distress is so familiar and these actions are so common that I cannot see in connection therewith what can be the legal justification for the landlord to re-replevin the goods.

When they have been taken into possession by the sheriff under a writ of replevin, they are not wrongfully in his possession. They are m custody of the law. To maintain an action of replevin it must be against one who unlawfully detains the goods and chattels. If the contention of the defendant in the case at bar is sound in that the statute by its term gives him the right to re-replevy from the sheriff, simply because the sheriff has goods that he wants or claims, then by the very same language it would give the tenant the right to re-replevy from the landlord and so on back and forth interminably. When a replevin suit is started it is the means of forming an issue between the parties as to the right of possession of the goods. The landlord is secured by his bond. The court in the action can give judgment as between the parties and all rights thereby can be conserved.

Certainly, the law does not look with favor upon unnecessary complicated litigation, which certainly would result from permitting the defendant in this case to start another replevin suit against his adversary in the other suit.

Tiffany, on Landlord and Tenant 2073, says as follows: “The effect of the giving of the replevy bond is to relieve the things distrained from the lien created by their seizure, to enable their owner to sell or encumber them, and to leave them free to be subjected to the satisfaction of creditors generally.”

It may be contended that inasmuch as the replevy bond provides for the return of the goods and not for the payment of the rent this law does not apply. Whether it does or not in New Jersey, it does in those jurisdictions where a suit on the bond may be for recovery of damages in the event that the goods cannot be returned. It furthermore illustrates the principle of the reason for a replevy bond, which reason is entirely inconsistent with the theory advanced by the defendant in this case.

Furthermore, section 23 of our Replevin act (3 Comp. Stat., p. 4373) provides for the framing of an issue and a sheriff’s jury to determine the amount due for the arrearages of rent. This further supports the theory that the rights between the parties should be determined in the replevin suit brought by the tenant against the landlord.

In the case of Sloan v. Poor, 7 N. J. Mis. R. 197; 145 Atl. Rep. 469, the court holds that “where tenant, in action in replevin for furniture distrained by landlord, executed a bond conditioned for return of furniture, the landlord, after non-suit of tenant, was entitled to recover on bond only the amount due from tenant with interest and costs, since landlord’s right to possession of furniture was only for purpose of realizing therefrom the amount of debt due him for rent.”

I do not think the landlord has the right to re-replevy the goods and chattels, and an order may be entered in accordance with these views.


text:
    Albert Datz and Anna Datz, his wife, complainants, v. William J. Barry et al., defendants.
    [Decided August 21st, 1934.]

      Messrs. Hudspeth \& Harris, for the complainants.

      Messrs. Insley, Vreeland & Declcer, for the defendants.
   Egan, V. C.

On January 30th, 1924, the complainants conveyed the premises described in the bill to the defendants, William J. and Margaret Barry, husband and wife. As a part of the consideration for the deed, they received from the grantees a mortgage for $5,000, which, subsequently, was reduced to $4,000. The bill seeks the foreclosure of this mortgage. On June 27th, 1924, the Barrys conveyed the premises to Ksienia Onufrow; the deed of conveyance reciting,- among other things, "subject to a third mortgage held by Albert and Anna C. Datz, in the sum of five thousand dollars, and which is due July 30th, 1927.” The purchase price agreed between the Barrys and Ksienia Onufrow was $25,650; Ksienia Onufrow deducted therefrom $5,112.50 as an allowance for the Datz mortgage; but that mortgage she did not pay or satisfy. On January 18th, 1928, the Datzes and Ksienia Onufrow executed an agreement extending the time for the payment of the mortgage to January 30th, 1933. This agreement, among other things recites the following: “The party of the second part [Ksienia Onufrow]—to pay the said principal sum and interest as above set forth and to comply with the other terms and conditions of the said bond and mortgage.” Ksienia Onufrow conveyed the premises, but, subsequently, reacquired the title. On August 23d, 1932, by deed of that date, Ksienia Onufrow and her husband, Luka Onufrow, conveyed the property to Arthur P. Puller. The deed to Puller contains this recital: “Subject to all mortgages, taxes, liens of record and otherwise from which the parties of the second part agree to save the parties of the first part harmless.”

The testimony of Barry, inter alia, is that a few days after the conveyance of the title from him and his wife to Mrs. Onufrow, he and Luka Onufrow, the husband of Ksienia, visited the complainant, Albert Datz, at his home, and Barry there told Datz that Onufrow “was the new owner and would assume the mortgage;” that Datz then “shook hands with Onufrow” and said Onufrow would or should thereafter pay him the interest. Luka Onufrow testified that the said conversation did not take place at Datz’ home, but at 2309 Boulevard; and that Barry said to Datz: “My wife [Ksienia Onufrow] own property and we take care of everything.” The witness Luka Onufrow spoke English imperfectly. Datz denied the alleged conversation between him, Barry and Onui'row. Datz’ testimony, however, was not clear, satisfactory, or convincing. Riehl v. Riehl, 101 N. J. Eq. 15; 137 Atl. Rep. 787. His attitude on the witness stand obviously annoyed, or perplexed, his counsel; his answers, in many instances, were not responsive; they were not prompt, but noticeably hesitant and his general conduct was not conducive to a favorable impression.

The contention of the Barrys is that Puller, the owner of record, is not the real owner; that he is a mere “dummy,” agent, or convenient titleholder for the complainants, who are alleged to be the owners in fact. The evidence is clear, and it is admitted by the complainants, that they paid, or provided the sum of $300 which was given to the Onufrows for their deed to Puller. Puller is a nephew of the Datzes. The Datzes, by their testimony, leave no donbt about the situation. Albert Datz said he wanted to relieve Onufrow from any liability on, or under, the bond and mortgage; and, also, that he wanted to hold Barry, or the Barrys, liable under those instruments. Mr. Justice Case, who wrote the opinion in the appeal heretofore instituted in this matter for the court of errors and appeals, reported in Datz v. Barry, 115 N. J. Eq. 84 169 Atl. Rep. 685, said:

“They [the affidavits of the complainants] disclose that Duller holds as the nominee of, and dummy for, the complainants who, for their own purposes, procured, for the consideration of $300 paid by them to Onufrow, a conveyance of the lands from the latter to Duller.

“The promise to save harmless made on Datz’ behalf is without satisfying explanation.”

Datz engaged Philip Sauer, his attorney, to attend to the matters incidental to the conveyance of the title from the Onufrows to Duller. Alfred Becker, an attorney, testified that at a meeting in Sauer’s office, Datz wanted Barry to accept back a deed from Onufrow; and that he, Becker, then told Datz that Onufrow, at the time of the said conveyance from the Barrys, verbally assumed the payment of the mortgage and had retained the amount thereof from the purchase price. Datz denied that such conversation took place; but he admitted the meeting with Becker in Sauer’s office. Certainly, the assumption of a mortgage indebtedness upon the land conveyed, as part of the consideration of the conveyance, is valid and enforceable, notwithstanding the agreement be by parol. Dieckman v. Walser, 114 N. J. Eq. 382; 168 Atl. Rep. 582; and when the “purchaser * * * deducts or retains out of the purchase price the amount of the mortgage debt, equity will impose upon his conscience an obligation to indemnify his grantor, if the latter himself be personally liable for the mortgage debt, and this although the premises were conveyed subject to the mortgage.” Fiedler Corp. v. Peak Really Co., 114 N. J. Eq. 535; 169 Atl. Rep. 169; Binns v. Baumgartner, 105 N. J. Eq. 58; 146 Atl. Rep. 879. The evidence of knowledge by Datz of the assumption of the Barry mortgage has, in my opinion, been clearly established and the execution of the agreement to extend the time of payment of the mortgage by the Onufrows and Datzes is undisputed; therefore, the ruling laid down in Delacroix v. Stanley, 113 N. J. Eq. 121; 165 Atl. Rep. 882, applies to the instant case; there, the court said: “If a mortgagee with notice or knowledge of the conveyance and assumption by the grantee of the mortgage debt, extends the time of payment of the mortgage by a valid agreement between him and the grantee, such extension agreement ipso facto operates to discharge the original mortgagor, unless same has been assented to by the latter.” Reeves v. Cordes, 108 N. J. Eq. 469; 155 Atl. Rep. 547. There is no evidence to the effect that the Barrys assented to the extension. Mr. Justice Case, speaking for the court of errors and appeals in Datz v. Barry, supra, said: “From what was Onufrow to be saved harmless ? Hot from the mortgage itself because that was a burden only upon the lands and the lands were not conveyed; not from the strict wording of the bond, for that instrument was in the hands of the complainants and did not mention Onufrow. From what, then, other than an assumption of the debt which the mortgage was given to secure ?” The facts in this case conclusively indicate that the said recital was to relieve Onufrow from the debt which the mortgage was given to secure. There is no doubt in my mind that Datz, through his agent and nominee, Fuller, agreed to assume the payment of the mortgage debt as a part consideration for the conveyance from Onufrow to Fuller; and, under the circumstances, equity considers the debt satisfied; therefore, since the debt is regarded as being satisfied, there is no existing mortgage to foreclose. Mann v. Bugbee, 113 N. J. Eq. 434; 167 Atl. Rep. 202.

I shall advise a decree dismissing the bill against the defendants, the Barrys.