author: Lawrence, J.

text:
    Monmouth County Circuit Court.
    JAMES D. CARTON, APPELLANT, v. BOROUGH OF NEPTUNE CITY, IN THE COUNTY OF MONMOUTH, A MUNICIPAL CORPORATION, DEFENDANT.
    Decided December 20, 1937.
    For the appellant, Durand, Ivins & Carton (Robert V. Carton).

    For the defendant, Joseph R. Megill.

   Lawrence, J.

This is an appeal from assessments for benefits imposed on lands of appellant in the borough of Neptune City, in this county, of the proportionate cost of a sanitary sewer system constructed by the authorities there, under the provisions of article XX of the act concerning municipalities. Pamph. L. 1917, ch. 152, p. 319; 2 Cum. Supp. Comp. Stat., pp. 2071, 2194, §§ 136-2001 et seq. The construction, excepting as to laterals on vacant lots and tracts, was completed in 1929, when the assessments here involved were laid. The commissioners appointed to make them reported to the mayor and council of the borough and the municipal body approved and confirmed the report on May 22d, 1929. Appellant, whose lands were affected, gave the statutory notice of appeal, as required by Pamph. L. 1925, ch. 71, p. 237; Supp. Comp. Stat. p. 1135, § 136-2042, and the appeal' was duly perfected. While the hearing was not brought on until the present time, as defendant did not at any time seek to have the appeal dismissed for lack of prosecution, and no question has been raised in that respect, counsel for the parties apparently acquiescing in the delay, it is assumed that a meritorious ground was recognized as supporting the appeal, which in fact appears to be the case.

Appellant is, and was in 1929, the owner of twenty-four acres of farm land in the borough, on a part of which stand a large dwelling house, a small bungalow, and some outbuildings. The property was at the time of the construction of the sewer system and still is occupied by him and his family as a residence and the dwellings were connected with the new sewer by five hundred feet of main laid at his own expense. That part is not consequently included in the appeal. The remainder, spoken of as open fields or farm land, has a frontage of one thousand four hundred and fifty feet on Sylvania avenue, a public street of the borough, and extends in a generally southerly direction to the water line of Shark river. A private road known as Riverview avenue runs from Sylvania avenue through a part of the westerly side of the tract, giving access to one or more dwellings on lots not owned by appellant, although he has three hundred and ninety feet on the north side of this avenue and two hundred and forty feet on the south side. A small lot on the south side of West Sylvania avenue not connected with the main tract is also here involved. This is irregular in shape, having a depth of about seventy feet, with a width of ninety-two feet in the rear and at a point forty feet from the street runs off at an angle to the street line. It has approximately one hundred and thirty-five feet of street frontage, without, as indicated, a corresponding depth.

The territory of the borough is, and was in 1929, largely developed and built upon, but there are and were many vacant lots and tracts such as the property of appellant, which at the time of the construction of the sewer system and the assessments made of the cost derived no immediate advantage from it, excepting as the market value may have been increased by the laying of sewer mains in the adjacent streets upon which they fronted. The system was constructed as a local improvement, under the statute defined as one, the cost of which, or a portion thereof, may be assessed on lands in the vicinity benefited thereby; but the assessments are required to be levied in each case as near as may be in proportion to the peculiar benefit, advantage or increase in value which the respective lots and parcels of land and real estate shall be deemed to receive by reason of the improvement, and in no case may the assessment on any parcel of land exceed in amount such peculiar benefit, advantage or increase in value. If the assessments so made do not equal the cost, then the excess must be raised by general taxation or in some other legallj' permissible way. Passaic v. Delaware, Lackawanna and Western Railroad Co., 37 N. J. L. 538, 540.

In making the assessments here considered the report of the commissioners discloses that they first determined the available drainage area in the borough to be served by the new system and laid off the territory comprehended into units of one hundred square feet, and, whether built upon or not, assessed each lot or parcel within the area on the uniform basis of the number of such units contained therein at a rate of seventy-four cents and one mill, without regard to the peculiar benefit, advantage, or increase in value. The rate was obtained, it appears, by finding the total cost of the improvement to have been $206,023.49, from which was deducted the sum of $6,165.33 for house connections and miscellaneous expenses, leaving the net cost $199,858.16. Of this amount $101,846.17 was apportioned on the indicated unit basis to all the lots and parcels in the drainage area on the theory of a special benefit received from the installation of the treatment plant, pumping station, land occupied, rights of way, outfall sewer, chlorinating equipment, and other related items. The remainder of the cost — $98,011.99—was reduced to a base rate of $1,553 for each lineal foot of land fronting on the streets and avenues where sewer mains, as a part of the new system, were laid. Here again no consideration appears to have been given to the peculiar benefit, advantage or increase in value of the individual properties affected.

The result was that appellant’s lands were assessed as follows: one thousand four hundred and fifty feet fronting on Sylvania avenue at the rate of $1,553 per foot, $2,253.09. In addition this tract of farm land, of which sixteen acres were found to be within the drainage area, was also assessed on the unit basis at the rate of seventy-four cents and one mill, calculated evidently on the number of one hundred square feet units ascertained to be therein, and amounting to $4,487.27. On the land north of Riverview avenue, down which a sewer main had been laid, the assessment of three hundred and ninety feet at the lineal foot rate is $605.67, and for the two hundred and forty feet on the south side, at the same rate, is $372.72. As to the lot on the south side of "West Sylvania avenue, the assessment is $261.40, apparently based on a frontage of one hundred and thirty-five feet at the lineal foot rate and also the unit rate as a full sized lot.

' The aggregate of the assessments against appellant’s land was thus fixed at $7,980.15, and it may be observed that there was evidence at the hearing of the appeal that the market value of the tract of twenty-four acres, sixteen of which were found to be within the drainage area subject to assessment, did not exceed $18,000, one or more "of the experts testifying that the proper figure was about $12,000. Compared with the amount of the assessment imposed on this tract, which is $6,740.36, the suggestion that it approaches confiscation of a substantial part of the value has at least a semblance of truth. That the assessments far exceed the peculiar benefit, advantage or increse in value of the land resulting from the improvement seems clear. That they cannot be sustained appears equally so.

It was sought in behalf of the borough at the hearing to support the assessments by showing that the part of the property within the drainage area had a potential value for development and a plan was produced, made by an engineer, of a tentative division into streets and lots, and it was urged that when such a development actually occurred in the future the assessments would be found equitable and just. Xo such development, however, had taken place at the time they were imposed, nor was it in contemplation, it appears, and nothing of the kind has taken place since to justify the method. When it does, doubtless a proper assessment can be made when the sewer system, with the laterals, is actually installed there or extended to the territory, but not until then. (See article XX, sections 20, 21, 24 and 25, supra.)

In Kellogg v. Elizabeth, 40 N. J. L. 274, 276, it was said that the special and peculiar benefit which will legalize an assessment for an improvement must be a present benefit immediately accruing from its construction, and that land owners cannot be assessed for intended benefits which may never be realized, for the reason that mere speculative benefits are not, in reality, benefits.

The method pursued by the commissioners, both in respect to the lineal foot rate and the unit area basis ignored or did not take into consideration the peculiar benefit, advantage or increase in value of the land, and was not in accordance with the injunction and requirement of the statute, in particular, article XX, section 24. The method will be found disapproved in such cases as State v. Hudson City, 29 N. J. L. 115, 116; Hampson v. Paterson, 36 Id. 159, 164, and in New Brunswick Rubber Co. v. New Brunswick, 38 Id. 190, 195. Other cases may be cited to the same effect, one or more of them indicating that the lineal foot rate may be used if the assessment properly reflects the peculiar benefit, advantage or increase in value of the land, resulting from the improvement. But that is not the case here. The assessments are undoubtedly excessive and were determined as a mere matter of arithmetic, by apportioning the cost of the improvement, with the stated deduction, to a drainage area arbitrarily divided into one hundred square feet units, and the use of a lineal foot rate, without actual regard to location or difference in value of the land included therein or the peculiar benefit or advantage accruing to individual lots or parcels.

The conclusion is that the appeal must be sustained and the assessments corrected. There was credible evidence at the hearing that appellant’s land had increased in value as the result of the installation of the new sewer system. As, for example, the tract of farm land, was shown to have been benefited in that regard to the extent of one dollar a front foot, while the lot on the south side of West Sylvania avenue had increased in value to the extent of $100. The evidence likewise indicated that a just and equitable assessment on the footage on Riverview avenue at the rate of one dollar per foot would have been justified. The unit area assessment on the sixteen acres of farm land, as fixed by the commissioners, amounting to the sum of $4,487.27 should be canceled. As corrected the assessments will thus stand: one

thousand four hundred and fifty feet on Sjdvania avenue, $1,450; three hundred and ninety feet on the north side of Eiverview avenue, $390; two hundred and forty feet on the south side, $240; and as against the lot on the south side of West Sylvania avenue, $100. An order may be submitted accordingly, to the end that the clerk and collector of taxes of the borough may receive the notice required by the statute. No costs will be allowed.-


source: Caselaw Access Project

author: Delmar, C. P. J.

license: Public Domain

text:
    Bergen County Court of Common Pleas.
    MARY BEERMAN, PETITIONER, v. PUBLIC SERVICE COORDINATED TRANSPORT, RESPONDENT.
    Decided December 3, 1937.
    For the petitioner, Abram A. Lebson.

    For the respondent, Henry H. Fryling (Elmer W. Romine, of counsel).
   Delmar, C. P. J.

From a decision of the workmen’s compensation bureau in favor of the petitioner and against the respondent an appeal was taken to this court. After a careful examination and review of all the evidence, including much that was Improperly admitted, I have come to the conclusion that the petitioner has failed to prove her claim for compensation by a preponderance of the evidence. This makes it unnecessary to consider the various other points presented by her counsel. It appears to me that Henry Beer-man, the decedent, died as the direct result of lymphosarcoma, from which disease he was already suffering in an advanced state at the time when he claims to have suffered an accident arising out of and in the course of his employment. The petitioner’s difficulty in fixing a date for the alleged accident serves to emphasize the correctness of the conclusion that I have come to. Considering all of the evidence favorable to the petitioner, some of which was clearly hearsay, it appears that on the first date alleged, to wit, September 22d, the decedent suffered pain while doing his ordinary work but, nevertheless, made no report of any accident to his employer and continued to work thereafter until September 29th, when he again suffered pain, which he apparently attributed to a strain which he believed he suffered while at work. This latter occurrence was reported as an accident, and is the only basis for the petitioner’s claim.

I think the weight of the evidence is to the effect that the decedent’s disease on the latter date had become sufficiently acute to have caused the pain from which the decedent undoubtedly suffered. There is no evidence of anjr traumatic blow and if, as claimed, the decedent suffered from a strain of his muscles while doing his ordinary work there is no evidence that such strain was the cause of or hastened his death.

An- order may he presented reversing the decision of the workmen’s compensation bureau, which opinion was printed in 15 N. J. Mis. R. 318; 191 Atl. Rep. 297.


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    VINCENT CORASIO, PETITIONER, v. IMHOFF BERG SILK DYEING COMPANY, RESPONDENT.
    Decided December 15, 1937.
    For the petitioner, David Cohn.

    For the respondent, George E. Meredith.

   The present petition was filed on June 2d, 1936, averring among other things that the petitioner has developed a traumatic neurosis which together with injuries sustained to his lower back and sacrum has disabled him to the extent of one huudred per cent, total permanent disability. The answer filed by respondent on June 24th, 1936, denied any such increase. In regular course the matter came on for trial before me, John J. Stahl, a deputy commissioner of compensation, at the Paterson chambers of the workmen’s compensation bureau, and after several hearings and continuances was concluded on August 3d, 1937.

i|; % :¡; # * & #

Petitioner’s right to a further recovery of compensation is challenged hv the respondent on two specific grounds: (1) that the petitioner has failed to sustain the burden of proving that his condition has become worse since the original hearing; and (2) that the petitioner has not shown that he is suffering from a condition due to trauma in excess of twenty per cent, of total permanent disability — the allowance already paid him.

A brief summary of the earlier proceedings is essential in order to pass upon the issues raised in the present case. The original petition was filed on May 29th, 1934, and set forth that, as a result of an accident on April 9th, 1934, petitioner sustained an injury to his back with an involvement of the lumbar region, incapacitating him to the extent of fifty per cent, of total and permanent disability. Respondent’s answer denied that petitioner suffered an injury by accident arising out of and in the course of his employment. During the course of trial, after both parties had produced considerable lay and medical testimony which clearly established the fact that petitioner met with an accident on April 9th, 1934, arising out of and in the course of his employment with respondent when he slipped on the wet floor while pouring dyestuffs into a vat and injured his back upon falling, and because of the wide conflict of opinion among the medical experts as to the nature and extent of disability caused by the said injury, counsel, following a conference between themselves, agreed upon a percentage of twenty per cent, of permanent and total disability as representing the degree of petitioner’s incapacity, and requested that an award be made on that basis. An award was accordingly entered as evidenced by a certain determination and rule for judgment bearing date of July 30th, 1934, by the terms of which respondent paid to petitioner one hundred weeks compensation at the rate of $15.33 for permanent disability, and fifteen weeks at the same rate for temporary disability, covering the period from April 9th, 1934, to July 23d, 1934, together with certain allowances for medical and attorney’s fees.

In order to pass upon the first ground raised by the respondent, it becomes necessary to determine the character of the award. If the award was the result of independent findings of the bureau based upon the evidence in the case, the judgment would be final and conclusive, subject only to continued jurisdiction under paragraph 21(f) to modify the said award on the ground of increased or diminished disability. Tucker v. Frank J. Beltramo, Inc., 117 N. J. L. 72; 186 Atl. Rep. 821. If on the other hand the award was the result of agreement and compromise between the parties or attorneys, the judgment would lack the element of finality and not being res judicata, petitioner would still be entitled upon a subsequent petition to a trial on the merits without being limited in his proofs to the establishment of increased disability. Streng’s Piece Dye Works, Inc., v. Galasso, 118 N. J. L. 257; 191 Atl. Rep. 874. The award in the instant case obviously falls within the latter class. Hence petitioner is entitled to a further recovery of compensation merely upon proof that the quantum of disability resulting from the said accident is greater than twenty per cent, of total. Respondent’s contention that it is incumbent upon petitioner to show that his condition has become worse since the original hearing is without merit.

As to the second ground urged by respondent, namely, that petitioner has failed to prove that he is suffering from a condition due to trauma in excess of twenty per cent, of total disability, I feel that the evidence by an overwhelming preponderance establishes the fact of a much greater disability. Such fact was apparent at the earlier trial and recorded in the determination and rule for judgment in the following language: “I further find that the petitioner in his present condition is totally incapacitated and that the disability ultimately resulting therefrom and chargeable to trauma amounts to only twenty per cent, of permanent total disability.” Such finding obviously rested upon speculation as to future developments and was made only upon the assurances by some of the medical experts that many of petitioner’s then existing symptoms were transitory and would clear up with the passage of time. Instead of an improvement petitioner’s condition has grown progressively worse, and many of the symptoms which were considered as temporary have not only remained but hare become much greater in severity.

The nature and extent of disability sustained by the petitioner as a result of the accident is largely a question of medical opinion. Both parties produced numerous physicians who expressed expert medical opinion, as well as many lay witnesses who testified to petitioner’s physical condition upon their observations. A definite contrariety of medical viewpoint was expressed by the physicians produced by the respective parties. This is apparent upon analyzing their testimony.

Dr. Pulvio Patella, Dr. Paul Eauschenbach, Dr. Thomas Manley, Dr. Hans Wassing and Dr. Eoy E. Schubert appeared as medical witnesses in behalf of the petitioner.

Dr. Patella, the original treating physician, testified that upon a recent examination he found more fusion and ankylosis between the fifth lumbar vertebra and the sacrum; more limitation in the lower spine; more definite muscular contracture caused by enforced and prolonged abnormal body posture; and more limitation of both lower extremeties. He gave as his diagnosis: osteo-chrondritis of the lumbo-sacral joint, neuritis of the spine involving both sciatic nerves, muscular contracture, and a general traumatic neurosis, and expressed the opinion that petitioner is one hundred per cent, totally and permanently disabled.

Dr. Eauschenbach, an orthopedist of thirty years practice, testified that the petitioner was suffering from a condition of osteo-chronditis at the juncture of the fifth lumbar vertebra and the sacrum which was undergoing a process of arthrodesis or a fixation of the joint. It was his opinion that petitioner’s disability was equivalent to one hundred per cent, of total.

Dr. Thomas Manley testified that the petitioner was suffering from rigidity and limitation of motion of the spine, due to a chronditis between the fifth lumbar vertebra and the sacrum. He estimated the disability as one hundred per cent, of total.

Dr. Hans Wassing, a specialist in neurology, testified that petitioner was suffering from a marked traumatic neurosis superimposed upon a low spinal column lesion with some nerve root involvement. He expressed the opinion that the disability was equivalent to one hundred per cent, of total.

Dr. Schubert, specializing in orthopedics, testified that the petitioner was suffering from a lesion in the lower lumbar region which ho diagnosed as a rupture of the nucleus pul posus of the fifth lumbar vertebra, causing a pressure of the nerve roots in the spinal cord. He estimated the disability as one hundred per cent, of total.

The respondent produced three physicians, Dr. Andrew O. Buoff, Dr. Jack Biumberg and Dr. Herman H. Hollingsworth, whose opinions were diametrically contrary to those of petitioner’s experts.

Dr. Buoff testified that in his opinion the petitioner was suffering from no organic injury in his lower back; that he voluntarily assumed an apparent fixation of his pelvis which produced a stooped-over posture; and that the neurosis and hysteria, present at the first trial, have now cleared up. He further testified that although he considered the petitioner’s condition the equivalent to one hundred per cent, of total disability at the first trial, he believed his present condition did not exceed twenty per cent, of the total, because of marked improvement which had taken place during the past two years.

Dr. Jack Biumberg, specialist in neurology, testified that upon his first examination of petitioner in 1934 he found him disabled to the extent of one hundred per cent, of total, based upon a neurosis; and that upon his recent examination he found the condition to be the same with the exception of corneal and pharyngeal reflexes which were absent at the earlier examination and present at the last one. While the witness refrained from branding the petitioner as a malingerer, he testified that his estimate of disability would be considerably less than one hundred per cent, of total if the symptoms and complaints of the petitioner were not genuine.

Dr. Hollingsworth, medical director of the carrier’s Clifton clinic, testified that in his opinion the petitioner was suffering from no permanent disability as a result of the accident. He definitely branded the petitioner as a malingerer and attributed his entire condition to exaggeration and simulation, admitting, however, that petitioner may have suffered originally from an injury to the lower back.

In this posture of the proofs with such wholly irreconcilable medical testimony, it becomes necessary to determine which of the opinions deserve the greater weight in accordance with entire evidence in the ease. I feel that the decided weight of the medical testimony leans more strongly toward the views expressed by the petitioner’s experts. By adopting their opinions together with my observation of the petitioner during the several days of trial — a man broken down in health, markedly crippled, drawn up and emaciated, apathetic in appearance with a discernible postural deformity requiring the aid of a crutch and a cane in order to get about- — I am reasonably satisfied that he is suffering from permanent disability as a result of the accident to the extent of one hundred per cent, of total, based upon an organic lesion of the lumbosacral joint, together with a severe traumatic neurosis superimposed thereon.

I find, therefore, that the petitioner is entitled to an award of compensation upon the basis of one hundred per cent, of total and permanent disability, being equivalent to four hundred weeks at the rate of $15.33, less one hundred weeks heretofore paid pursuant to the terms of the previous award. This award shall be subject to such further consideration upon the expiration of the four hundred week period as the case may warrant under the provisions of paragraph 11(b).

$$$$$$$

John J. Stahl, Deputy Commissioner.


author: Lawrence, S. C. C.

text:
    EDITH L. SELPH AND WILLIAM E. SELPH, PLAINTIFFS, v. THE TOWN OF MORRISTOWN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided January 3, 1938.
    For the motion, C. Franklin Wilson.

    Opposed, King & Vogt (Harold A. Price).

   Lawrence, S. C. C.

Defendant moves to strike the complaint filed in this suit on the ground that it is sham. On the argument, however, it developed that the real question is whether defendant, a municipal corporation, can in any circumstance, in view of the enactment of chapter 460 of the laws of 1933 (Pamph. L., p. 1550; N. J. Stat. Annual 1934, § *136-1829B), he held liable for the negligence of its officers, agents or employes, even though a cause of action stated by the person injured charges active wrongdoing on their part in that respect as the producing cause of the injury, for which compensation is sought. In other words, invoking the statute, it is urged in behalf of defendant that the complaint here considered should be stricken, because it attempts to set up a cause of action barred by it.

The statute provides that no county, municipality or school district shall be liable for injury to the person from the use of any public grounds, buildings or structures, any law to the contrary notwithstanding. The purpose of the act, it is said, was to clarify the existing law as to the non-liability of counties, municipalities and school districts when public grounds or buildings are. used and individuals are injured in such use. Cohen v. Morristown, 15 N. J. Mis. R. 288; 190 Atl. Rep. 851.

The complaint, in condensed narrative, recites that on February 12th, 1931, and for many years prior, the town of Morristown had sole control and maintenance of the public park, commonly called and known as “The Green;” that while in the exercise of such control, by its duly authorized agents, it constructed and laid certain concrete walks connecting with others in the park, to facilitate the passing of pedestrians through it; that one of them, intended to be used by the public as a way of entrance and exit from and to the sidewalk of the adjacent street, and to connect with it, was so laid as to terminate at the edge of this sidewalk (also of concrete and in control of the town), but instead of being brought to the grade or level of the latter was, at its end, left at a height of three inches above it, thus creating a hazardous condition and endangering those lawfully using the walks. Mrs. Selph, it appears, on the day in question, had walked through the park and was about to step to the walk on the street, when, not observing the difference in the level of the two, fell and was injured. The present suit was brought to recover on the theory of negligence resulting from active wrongdoing on the part of the municipality in the manner in which it laid the walk leading from the park to the street sidewalk. Mr. Selph joins in the suit by reason of his derivative cause of action.

In ordinary circumstances, such a complaint would he regarded as setting forth a valid cause of action. A sidewalk construction such as that stated was declared a nuisance in Braelow v. Klein, 100 N. J. L. 156; 125 Atl. Rep. 103, involving as it did a footpath in a public highway so far out of alignment with the trué 'pavement level as to constitute a danger in its use and the continuance of that condition by the defendant without any effort on his part to correct the misalignment or to remove the danger.

The exceptions to the general rule that a municipality is not liable to an individual for the negligence of its officers or agents in the performance of a public duty imposed upon it by law, relating as they do either to private actions arising from injuries resulting from the use of public places by the municipalitj'- in the proprietary sense, based on the idea of profit or gain, or to cases of active wrongdoing, have long been recognized. The subject will be found comprehensively discussed in Allas v. Rumson, 115 N. J. L. 593; 181 Atl. Rep. 175, which contains a full citation of pertinent authorities, both here and in England, with a satisfactory definition of “active wrongdoing,” which may result in fixing the liability of a municipality or other public corporate body. It was there said: “Generally, the test of liability to a private action by a municipality, for special damage, is whether such damage is or is not a part of a public wrong for which an indictment will lie; but this exemption does not extend to private injury resulting from active wrongdoing chargeable to the municipal corporation. There is such active wrongdoing when the private injury has resulted from a wrongful act or positive misfeasance, as distinguished from mere negligence. Misfeasance is the wrongful and injurious exercise of lawful authority, or the doing of a lawful act in an unlawful manner.”

The sole question here, therefore, is whether the defendant is exempt from liability to an action of the nature of the present suit by reason of the bar of the statute relied upon (supra). It may be observed that it was held not a bar in the case of Leeds v. Atlantic City, 13 N. J. Mis. R. 868; 181 Atl. Rep. 892, which related to the use of a public building with the motive of making a profit, a proprietary use, under the direct management of the municipal corporation, in which admission fees were charged to the public. If the statute was intended to clarify the existing law as to non-liability of the public bodies named, it is not at all clear that where an individual is injured as the result of the active wrongdoing of such a corporation, by its officers, agents or employes, that it was designed to provide an exemption in such a case, nor does it appear broad enough in its implication to include the exceptions to the general rule of freedom from liability for special damage in the exercise of governmental functions or the performance of public duties. It could hardly have been the intention of the legislature to grant the privilege of exemption in such a case to the public bodies named which it denies to the private citizen. Moreover, the walk in question, connecting as it does with the sidewalk on the street, is indicated as part of a continuous thoroughfare dedicated to public use, as much so, indeed, as the streets and sidewalks surrounding the park, and was such at the time of the accident giving rise to the present suit. There is no suggestion that the statute exempts from liability the municipality in a case of active wrongdoing in the public streets or ways to the special damage of an individual who may have a private action therefor, and it is not consequently perceived that the thoroughfare where the accident here involved happened must necessarily be included in the classification of “public grounds, buildings or structures” referred to in the statute.

It will suffice to say that the act is not regarded as sufficiently implicit-in its phrasing to include the locale of the accident. The conclusion is that the motion to strike the complaint on the ground that it does not state a cause of action, because such action is barred by the statute, should be denied. Other potential issues discussed on the argument appear to be purely factual and may be disposed of on the trial of the cause.


author: Hartshorne, C. P. J.

text:
    Essex County Orphans Court.
    IN THE MATTER OF THE ESTATE OF ISAAC SYCLE, DECEASED.
    Decided December 28, 1937.
    For the petitioner, Saul Tischler.

    For the defendant (Harold L. Sycle, special administrator), Levitan & Levitan.

   Hartshorne, C. P. J.

The question here is whether an attaching creditor of a distributee of an estate, who has duly levied on the distributive share in the hands of the administrator, and whose claim has been reduced to judgment, can compel the administrator to account.

It should be noted, in addition, that the distributee is himself the administrator, that such distributee-administrator is a non-resident, and that there appears on record a refunding bond from the distributee to himself as administrator, reciting that such distributee has received from himself as administrator “the full and complete sum of my administrative share of the estate, amounting to the sum of $6,5f7.'78.” Petitioner’s judgment almost equals such amount.

It is claimed that the estate is insolvent, that the above amount constituted its entire assets, and that such assets were properly distributed to creditors, the distributee receiving nothing. But these claims are in nowise supported by the record, which shows no insolvency proceedings, and are, indeed, the very facts to be established by the accounting requested.

More precisely, the question is whether or not this attaching creditor, under his levy, is a "person interested in the estate,” entitled under the act to an accounting. Orphans Court, section 116, 3 Comp. Stat. 1910, p. 3853.

Under the Attachment act, "a distributive share of an estate in the hands of the * * * administrator * * * may be attached in an action against the * * * next of kin for his debt.” 1 Comp. Stat. 1910, tit. “Attachment/’ p. 136, § 5. As soon as the writ is served, both the defendant’s personalty and realty are bound under lien. Ibid., § 7. In the same way that an assignee of a legacy steps into the shoes of the legatee (Executors of Luce v. Parke, 17 N. J. Eq. 415), so, it would seem, would an attaching lienor, to the extent of his lien, particularly when his attachment is reduced to judgment. And it is generally held that an assignee of a distributive share has the right to demand an accounting. 24 C. J., tit. “Executors and Administrators,” p. 930, § 2308.

While this right on the part of an attaching creditor under a levy, has apparently not been ruled on previously in New Jersey, the right of a "person interested in the estate” to an accounting is so similar to the right of "all persons concerned” to file a caveat against the probate of a will (3 Comp. Stat. 1910, tit. “Orphans Court,” p. 3816, § 13), that the decisions in the latter regard are helpful. Our courts have held that "all persons concerned” is the equivalent of "parties in interest,” that same includes "all persons who might be injured by admitting a will or codicil to probate,” and that this includes a judgment creditor of a devisee or distributee. Re Van Doren, 119 N. J. Eq. 80; 180 Atl. Rep. 841. That the attaching creditor, with a judgment of over $6,000, would be very substantially injured in case the estate had been wasted, so that his judgment debtor distributee did not get his full share, is self-evident. Indeed, why should the legislature give a creditor the right to attach a distributive share in an estate, if such creditor cannot enforce it by compelling an accounting and distribution?

While there is some conflict in the authorities, both logic and practical justice so clearly support the rule giving the right here contended for, that the New Jersey courts can hardly do otherwise. 24 C. J. 929; 68 Id. 906; 11 Am. & Eng. Encycl. L. (2d ed.) 1195, note 2.

Of course, the fact is immaterial that another remedy may exist before another tribunal, particularly under circumstances where such remedy would be quite ineffective, in view of the non-residence of the distributee-administrator defendant.

The accounting will be ordered accordingly.


author: John C. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    DENNIS MAKRIS, PETITIONER, v. TOP HAT RESTAURANT, INCORPORATED, RESPONDENT.
    Decided December 21, 1937.
    For the petitioner, Meehan Brothers.

    For the respondent, Henry M. Grosman.

   Having considered the testimony on behalf of the petitioner and the respondent, it is the opinion of this court:

1. That the payment of compensation by the respondent based upon a wage of $10 per week and three meals a day is all that the petitioner was entitled to under the Workmen’s Compensation act, and his compensation rate of $10 per week as paid was correct.

2. The contention of the petitioner that his wages should be computed as $30 a week, based upon $10 wages and $20 per week tips was untenable. The Workmen’s Compensation act of New Jersey specifically excludes “gratuities received from the employer or othershence, tips received by a waiter cannot be computed as earnings in determining claimant’s compensation rate.

I find that the petitioner has been adequately compensated for his disability resulting from the accident alleged in the formal petition filed in this cause.

It is therefore ordered, adjudged and decreed that the claim for compensation filed by the petitioner April 3d, 1937, be and hereby is dismissed.

John C. Wegner, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPHINE AMATELLI, PETITIONER, v. JAVAS BREAD COMPANY, INCORPORATED, RESPONDENT.
    Decided December 23, 1937.
    For the petitioner, Richard H. Gashion.

    For the respondent, Stanley U. Shares.

   $ $ >;< s|{ ^ Hs

It was stipulated and agreed between counsel that petitioner, Josephine Amatelli, is the widow of Frank Amatelli, and that they were lawfully married on June 28th, 1924, and that the three children mentioned in the petition are the issue of the marriage; that said Frank Amatelli was regularly employed by the respondent. Javas Bread Company, Incorporated, as a driver and his average weekly wages, based on flat wage and commissions, amounted to $25.69 per week, and that on February 11th, 1937, he met with his death by reason of an accident arising out of and in the course of his employment, and that notice of the happening of said accident was given to the respondent on the same day.

On behalf of the petitioner, Josephine Amatelli testified as follows:

That she and her husband had marital difficulties as early as September 4th, 1935, and that they voluntarily separated, by agreement, and lived apart, and that thereafter and from time to time they were temporarily reconciled and lived together for short periods of time, and then eventually separated permanently some time prior to June, 1936.

That on June 2d, 1936, by agreement between said Josephine Amatelli and her husband, the children were entered into an orphanage conducted by a lodge of which petitioner was a member, and known as “The Sons of Italy.” That the children entered the asylum on June 2d, 1936, where they have continued to reside up to the present time, and where they have been clothed and provided for, and also given an education. That decedent agreed to contribute the sum of $9 a week for the support of the children at the orphanage, but that he paid but $7 per week up to the time of his death, being in arrears on different occasions, some of which arrears have not been paid to date. The payments made were received by the said Josephine Amatelli from the overseer of the poor to whom decedent paid weekly, and that these checks were endorsed over to the orphanage. That in addition to the $7 actually paid, extra clothing was brought to the institution and that the money used to purchase the clothing was contributed by the deceased in addition to the weekly contribution.

Josephine Amatelli further testified that the deceased also contributed to her support to the extent of $5 per week, and that before the death of her husband she was employed in the capacity of a female orderly at the City Hospital, where she received $48 per month as wages.

By consent of counsel there was admitted into evidence a statement of one, Miss Turi, in charge of the orphanage, in so far as the sainé might be evidential and relevant and from which it appears that the amount fixed by the orphanage of $9 per week, being the cost of maintaining the three children, was far less than the actual cost pro rala for each child to the institution, and it is the respondent’s contention that the amounts contributed by the deceased were inadequate and did not fully support the children in the sense that they were totally dependent upon him.

After careful consideration of the evidence, 1 find and determine that the petitioner has sustained the burden of proof and feel, from the evidence, that the only claim to support respondent’s contention is that there was a deiicil between the $9 per week, which was the charge of the orphanage, and the $7 per week which the deceased actually contributed. I feel that the failure of the deceased to pay the full $9 per week was something he himself was responsible for, and that the orphanage would have, a claim against his estate for any deficit on his contract with the orphanage for which he was personally responsible, and I do not feel that because of this unfortunate situation, the children should be taken from one status into another, nor do I feel that the fact that the mother might have brought the children extra clothing or gifts should, of itself, disturb the said status.

It overwhelmingly appears to my satisfaction that the children were sxrpported entirely by the deceased, the father, and that the petitioner has sustained the burden of proof in establishing total dependency on the part of the three children, and partial dependency for herself to the extent of $5 per week.

I find and have computed the total dependency of the three children to be equivalent to forty-five per cent, of the wages stipulated to have been received, and which percentage amounts to -$11.56. Tf there were four total dependents, in this case there happens to be but three and one partial; the amount computed on the same wage scale would be $12.84. Therefore the rate will be somewhere between three total and that allowed for four total dependents, but because the act, under which payments are to be made in this case, does not provide a particular system where dependents are both partial and total, I figure that the amount to be allowed to all dependents, including the mother, will be equivalent to $12 per week and that the amount to be set aside as the petitioner’s share, as a partial dependent, will be $1.75 per week, which will leave for the children, three in number, the sum of $10.25 per week. This compensation will run for a period of three hundred weeks at which time the widow will be eliminated as a dependent, and then the amount will be $11.56 per week until the son, Louis Amatelli, reaches the age of sixteen years; thereafter and until the son, Nicholas Amatelli, reaches the age of sixteen years, the amount will be $10.28 per week; and thereafter and until the son, Frank Amatelli, reaches the age of sixteen years, the amount will be $10 per week.

I further find that there were no medical expenses for the last illness as the deceased was killed instantly, or died a short time after the accident.

I will allow $150 for funeral expenses, payable by the respondent, and will allow to Richard H. Cashion, Esq., attorney for petitioner, the sum of $400, it appearing that the respondent at no time controverted the liability feature but merely questioned the nature and the extent of the dependency. This allowance to counsel is to be assessed against the respondent, as well as the stenographic fees.

% H* Hi ❖ H*

John J. Stahl, Deputy Commissioner.


author: Perskie, J.

text:
    A. FINK & SONS COMPANY, INCORPORATED, PLAINTIFF, v. JOHN HUSS COMPANY, A BODY CORPORATE OF THE STATE OF NEW JERSEY, DEFENDANT.
    Submitted December 30, 1937
    Decided January 4, 1938.
    Before Justice Perskle, in chambers, pursuant to statute.
    For the plaintiff, David Goldstein.

    For the defendant, Milton Miller.
   Perskie, J.

The sole issue requiring decision in this cause is whether, under the circumstances here exhibited, the mortgagee’s right, if any, to receive and collect rents from the property encumbered by his mortgage, is paramount to the right of the plaintiff, as a judgment creditor of the owner of the mortgaged premises, to have a receiver appointed to receive and collect the rent from the property.

The facts have been stipulated. As stipulated they disclose the following situation: Plaintiff recovered a judgment of $316.31 plus costs from defendant corporation on September 21th, 1937. By virtue thereof, execution was issued to the sheriff of Ocean county. The defendant corporation owned (and still owns) premises at 228 Second street, in Lakewood, New Jersey, upon which there are several mortgages, one, a duly recorded third mortgage dated August 30th, 1927, being owned by Benjamin Berger. On November 12th, 1937, by reason of the execution, the sheriff levied upon rents due or thereafter to become due the defendant from the tenants in possession of the mortgaged premises. Five days later, on November 17th, 1937, Berger, the third mortgagee, served a demand for the rent upon the same tenants, who, it is further stipulated, are willing to attorn to the mortgagee. Immediately after the levy was made pursuant to plaintiff’s execution, plaintiff applied for the appointment of a receiver under a supplement to our act respecting executions. Pamph. L. 1915, ch. 115, pp. 182, 183, § 6; Cum. Supp. Comp. Stat. 1911-1924, p. 1205, § 91-9a. A rule to show cause was allowed, and the matter was heard in chambers on the return day thereof, the mortgagee urging that the rule be discharged, but admitting that he had no right prior to his serving the demand for rent upon the tenants in possession.

First: It is well settled that where a mortgage does not expressly pledge the rents, and the mortgage here involved does not, the mortgagee is not entitled to the rents or profits from the land until he either takes possession, or obtains possession by appropriate action. Cohn v. Plass (Court of Errors and Appeals), 85 N. J. Eq. 153, 160; 95 Atl. Rep. 1011; Stewart v. Fairchild-Baldwin Co. (Court of Errors and Appeals), 91 N. J. Eq. 86, 89; 108 Atl. Rep. 301; Hands v. Russell (Court of Chancery), 115 N. J. Eq. 55, 57; 169 Atl. Rep. 361; Del-New Co. v. James (Supreme Court), 111 N. J. L. 157, 160; 167 Atl. Rep. 747. The mortgagee, in the case at bar, has instituted no action of ejectment, nor any other appropriate action. All that he has done has been to serve notice upon the tenants that they should attorn to him. It is obvious that this does not constitute an actual taking of possession. Nor is such action equivalent to a transfer of constructive possession to the mortgagee, unless an attornment to him has actually taken place. Shields v. Lozear (Court of Errors and Appeals), 34 N. J. L. 496; Del-New Co. v. James, supra; Hinck v. Cohn (Court of Errors and Appeals), 86 Id. 615; 92 Atl. Rep. 378; Hands v. Russell, supra (at p. 58); 105 A. L. R. 750. (I pass over the holding to the contrary — and to which no reference was made by either party — in the District Court case of Spiotta v. National Grocery Co. 11 N. J. Mis. R. 739; 168 Atl. Rep. 159.) While under the circumstances here exhibited, the tenants, it is stated, were willing to attorn to the mortgagee, j^et there has been no actual attornment in fact. Constructive possession, therefore, did not pass to the mortgagee.

In fine, since the mortgagee is not in actual possession, since he has instituted no action to acquire actual possession: and since there was no attornment by the tenants so as to put the mortgagee in constructive possession, the mortgagee as yet has no right to the rents or profits from the mortgaged land.

Second: Under all the circumstances exhibited, I am satisfied that the interests of all will best be served by the appointment of a receiver to collect the rents pursuant to Pamph. L. 1915, supra.

Accordingly, the rule is made absolute, with costs.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    IN THE MATTER OF THE CONTEST OF THE ALLEGED ELECTION OF CHARLES F. STOEBLING TO THE OFFICE OF MEMBER OF THE REPUBLICAN STATE COMMITTEE FROM HUDSON COUNTY; AUGUST ZIEGENER, PETITIONER. IN THE MATTER OF THE CONTEST OF THE ALLEGED ELECTION OF DAISY DOUGLAS TO THE OFFICE OF MEMBER OF THE REPUBLICAN STATE COMMITTEE FROM HUDSON COUNTY; JENNIE C. SMITH, PETITIONER.
    Decided January 5, 1938.
    Decided January 5, 1938.
    For the petitioner, Julius J. Seiden (Harry Lane, of counsel).
    For the incumbent, Benjamin Dowden.

      For the petitioner, Jacob J. Levey (Harry Lane, of counsel).
    For the incumbent, Henry Pass.

   Brown, C. C. J.

The petitions in the above entitled matters were filed for the purpose of contesting the election of the respective incumbents and determining that those petitioners were elected to the office named. The petitions were filed under and by virtue of Pamph. L. 1930, ch. 187, pp. 829-833, article XXYI, paragraphs 355 to 364, inclusive, of “An act to regulate elections” (Revision of 1930), approved April 18th, 1930, with amendments thereto and supplements thereof. Supp. Comp. Stat. 1925-1930 §§ 565-2602A to 65-2610A. Paragraph 355 of the act provides that the nomination or election of any person to any public office or party position, or the approval of any public proposition, may he contested by the voters of this state or of any of its political subdivisions upon one or more of nine grounds that are specified in the statute. Territorially the contest is confined to Hudson county. The petitioners are qualified to file their petitions as provided by the statute. In the primary election held in Hudson county on September 21st, 1937, the petitioner Ziegener opposed the incumbent Stoebling for the office of male member of the Republican state committee. The petitioner Smith opposed the incumbent Douglas in the same primary for the office of female member of the same committee. The county board of canvassers declared Stoebling elected by a majority of nine hundred and ninety-seven votes and Douglas by a majority of nine hundred and seventy-one votes. At' the hearing on both petitions it was agreed between all the parties that the testimony taken and motions made would apply to both petitions and thereby avoid the repetition that would otherwise occur. The petitioners in the contest relied upon the following statutory grounds:

1. Malconduct, fraud or corruption on the part of the members of the district boards, sufficient to challenge the election.

2. Illegal votes had been received, or legal votes rejected at the polls sufficient to change the result of the election.

In addition to the general statutory grounds above stated the petitioners also charged that there was fraudulent and illegal counting and tallying of votes; fraudulent and illegal marking of ballots; permitting improper voters to illegally sign the names of legal and qualified voters and to east ballots; that many ballots were counted in favor of Stoebling and Douglas as the result of an alleged fraud and conspiracy on the part of Stoebling “and persons in concert with him, and particularly employed by him in his office as commissioner of registration of Hudson county and in concert with a large number of the members of the various district election boards in a large number of the districts.” Paragraph 356 of the Election law requires, in part, that “when the reception of illegal or the rejection of legal voLers is alleged as a cause of contest, the names of the persons who so voted, or whose votes were rejected with the election district where they voted, or offered to vote, shall be set forth in the petition, if known.” Paragraph 359, in part, provides that “the proceedings shall he similar to those in an action at law so far as practicable, but shall be under the control and direction of the court, which shall hear and determine the matter without a jury.” The petitions as originally filed contained charges that were mostly expressions of opinion and conclusions of the petitioners and did not contain sufficient particulars or statements of fact to enable the incumbents to meet fairly the issues. Procedure is not an end in itself. It does involve the substantive rights of the parties involved. The complaint, in a civil cause of action and the petitions which are comparable in this contest, should contain a plain and concise statement of the points in issue. Pacts should be stated and not conclusions of the pleader. Sufficient facts should be stated to apprise an adversary fairly of the stated facts which the pleader intends to prove. The petitions should set forth with reasonable particularity facts and circumstances sufficient to render probable any statutory ground of contest. The petitions originally filed failed to charge the elements of fraud and conspiracy. Where the reception of illegal votes was charged or the rejection of legal votes the names of the voters were not contained in the petition nor the allegation that their names were unknown. The petitions did, however, contain references to the result of a recount before the county hoard of election of two hundred and fourteen election districts which reduced the majority for Stoebling from nine hundred and ninety-seven to one hundred and sixty votes and for the candidate Douglas from nine hundred and seventy-one to one hundred and twenty-three votes. This, in itself, would cause tlio most open mind to feel that fraud or corruption was practiced in some of those districts. The object of elections is to ascertain the popular will and not to thwart that will; to secure the rights of duly qualified electors and not to defeat them. The election laws were enacted to secure freedom of choice and to prevent fraud and corruption. Technicalities should not be used to make the right of the voter insecure. To this end paragraph 359 of the election laws provides, in part, that the court hearing the contest shall have “power to order any amendments in the petition, or proceedings as to form or substance.” Duly considering the purpose of the law and the rights of voters and contestants, the court denied repeated motions to dismiss the petitions. Amendments were allowed from time to time and the court proceeded with the hearing and by consent of all the parties reserved to the incumbents the right to renew their motion to strike at the completion oí the taking of testimony. At this point there was no testimony adduced to prove the charge of conspiracy against Stoebling and others and upon motion that charge in the petitions as amended was stricken. The remainder of the petitions as amended were not stricken as all motions were abandoned. Dull and complete opportunity was afforded all parties to examine all the ballots and as many of the election records, including poll books and registers, as they desired. A recount of two hundred and fourteen districts having been conducted before the county board of election the mechanics of finishing before this court the tallying and inspection of the ballots in the remaining districts was undertaken and completed and thereafter poll books and registers and impounded ballots, in districts designated by the parties, were inspected and testimony taken in connection therewith. During the investigation the court communicated to counsel the well established rule that the election laws should be liberally construed so as to ascertain the will and intention of the voter. Carson v. Scully, 89 N. J. L. 458; 99 Atl. Rep. 199; affirmed, 90 N. J. L. 295; 101 Atl. Rep. 289. The acceptance and recognition of this fundamental by counsel during the inspection and counting of ballots as well as the inspection of the poll hooks and other records resulted in an investigation that was expeditious, comparatively inexpensive to the county and produced a result that was consented to by contestants and incumbents alike. There are two results that can arise out of the investigation; namely, one where the malconduct, fraud or corruption is “sufficient to challenge the result,” and the other where the canvassers in counting the votes or declaring the result of the election commit errors sufficient to “change the result.” The statutory limitations on the judgment of the court may he found in paragraph 362 of the Election laws, wherein it is provided, “the court shall pronounce judgment whether the incumbent or any contestant was duly elected, and the person so declared elected will he entitled to his certificate; provided, that if misconduct is complained of on the part of the members, of any district board, it shall not be held sufficient to set aside the election, unless the rejection of the vote of such district would change the result as to that office.” To “challenge” is to call in question; to make doubtful. It is the finding and conclusion of this court that the petitioners have proven malconduct, fraud or corruption in the primary election under consideration sufficiently to challenge the result thereof. The petitions contain the allegation that illegal votes were received for the incumbents sufficient to change the result. The burden of proving this ground of complaint is upon the contestants. Under the law in order to change the result of the election the contestants should prove the actual casting of sufficient illegal votes for the incumbent to enable the court with reasonable certainty to determine that the rejection of such votes changes the result of the election. The contestants have not carried the burden of proof on this ground of complaint.

Descending to the particulars of the proof upon which the foregoing finding and conclusion is made, the charge was made in the petitions and in the taking of the testimony that so-called “one-day Republicans” were permitted to vote. In the fifth district of the second ward of Jersey City to the extent of thirty-four votes and in the first district of the first ward in the same city to the extent of fourteen votes. The testimony clearly showed that the appellation commonly applied to this class of voters was not justified. It is a sound American principle that a voter should be permitted to change his party allegiance. Indeed, it is considered necessary for the welfare of our country that changes of this kind should be permitted, but within the law. The testimony showed that the voters complained of had failed to vote in any primary since the year 1930 for intervals of three or four years until the primary of September 18th, 1935, when they voted for Democratic primary candidates. They did not vote again until the primary election of September 21st, 1937, when they voted in the primary election as Republicans. A period of two full years and six days had elapsed before this change of party allegiance was affected. The Election law of the State of New Jersey in paragraph 310, section 45, provides: “A voter who votes in a primary election of a political party shall be deemed to be a member of that party until two full years have elapsed after casting such primary vote.” The petitioners contended that the statutory phrase “two full years” means “two primary elections” that must take place before a voter is eligible to change his primary choice of a political party. No decision is cited as an authority. Evidently there is none. As this court views the dispute there is no room for such a strained construction. The words used in the law are clearly unambiguous. Literally and ordinarily “full” means complete to -the utmost extent. The word “year” was originally used in referring to the period in which the earth completed its revolution around the sun. It is now considered in civil and religious reckoning as a continuous period of three hundred and sixty-five days with a day additional for a leap year. To depart from the long accepted meaning of the words “full55 and “year55 is bound to result in confusion. If the legislature intended two primaries to intervene before a change of a political choice they would have so stated in the law enacted. They evidently did not so intend, for it appeared in the investigation a bill was introduced in the legislature in the year 1937, that had for its purpose, according to its contents and the explanatory statement at the bottom thereof, the settlement of this question by requiring two primaries to elapse before a change of political choice could be affected. This bill was not enacted into law. It was passed in the senate but not in the assembly.

Thus we have the proof that the legislature as late as the year 1937 did not consider the law ambiguous or otherwise they would have enacted clarifying legislation. Since the revision of our statutes in the year 1877 there has continued as the law of this state a statutory definition of the word “year.” In 4 Comp. Stat. 1910, p. 4973, § 10, it is provided as follows: “Construction of Words 'month5 and 'year5— that the words 'month5 and 'year5 when used in any statute, shall be construed to mean a calendar month and the words 'A year5 shall be construed to mean a calendar 'year.5 55 Our courts have followed this statutory construction in the case of Eatontown v. Shrewsbury, 49 N. J. L. (at p. 190); a case involving the legal settlement of a pauper in which it was held that the words “one full year” will only be satisfied by a dwelling for the full space of one year continuously and without interruption. To a like effect is the decision in the case of Carroll v. State Board of Education, 8 N. J. Mis. R. 859; 152 Atl. Rep. 339, wherein it was held that the term three years in the school teachers’ tenure of office act meant calendar and not school years. In this case the court referred to the statute of construction above mentioned and said it “is a legislative guide for the purpose of construing the language of the law-making body.” This court determines that there was no corruption, fraud or illegality in the receipt and counting of the votes in question under this item of complaint except in two cases where the time elapsed was eighteen months and in those cases it was not proven for which candidates the votes were cast. The court finds and determines. as far as those two votes affect or change the result oí the election, that the election officers in this particular district were guilty of malconduet, which conduct tends to “challenge the result” of the election. The petitioners contend there was evidence of malconduet, fraud and corruption in the balloting in the fifth district in the second ward of Jersey City. An examination of the ballots in this district show that the name John Yolpe was written on sixty ballots in pencil as a candidate for city committeeman. His name was written in a blank space on the ballot. The voters had the legal right to insert the name of Yolpe on the ballot as a candidate for the office in question. Evidently the voters who voted the ballots did not write the name Yolpe thereon because the testimony disclosed that Yolpe’s name was written by three persons in almost an equal number of times. The officers in charge of this particular district were required to testify concerning the writing of the Yolpe name. They could not account for the pencil writing. They stated the ballots were given to the voter and received from him without the name Yolpe. On being required to write the name it was apparent that the specimens of three of the officers were like the writing of the name Yolpe on the ballots. There was some contradiction in part of their testimony when they testified that they rendered assistance to about twelve voters when requested and that in those cases they might have written in the name Yolpe. It was evident from the conduct of these witnesses on the stand; their weak explanation of the transactions and the convincing specimen of their writing that they were not telling the truth and that they conducted the election in that district in a fraudulent and corrupt manner which had the effect of challenging the result of the election, all of which this court finds and determines so to be. While three of the officers of this district evidently were responsible for the fraud, the remaining member was a partjr to the wrongdoing as he placed his seal of approval of the result by signing the certification of statement of the election as required by paragraph 317 (Supp. Comp. Stat. 1925-1930, p. 593, § 65-2252Á) of the Election law and by failing to obtain the affidavit of voters asking for assistance as required by paragraph 198 (Supp. Comp. Stat. 1925-1930, p. 555, § 65-1433A) of the same law and in other respects being grossly negligent in his duties as a public official. In several of the complained of ballots in this district the evidence disclosed that the polling booth was not large enough to physically comply with the statute (paragraph 198) requiring two election officers to enter the booth with a voter asking assistance. There appears to be no exception to this requirement in the law. Paragraph 188 of the Election law permits a voter to mark his ballot without the booth “by reason of his own physical disability.” The evidence was to the effect that the booths in this district were similar in capacitjr to those used throughout the state. If a law cannot physically be complied with, of course an unintentional violation is not evidence of fraud or corruption. The proof showed that two officers and a voter of average size would have a difficult time in preparing a vote in the booth in secret as required by the statute. The modesty of a female voter whether of streamline or other proportions might well take alarm under such statutory pressing circumstances. So far as it affects the determination of this case there appears but one transaction where the ballot was marked outside the booth. In this district there was no affidavit taken of any voter to whom assistance was rendered. There was testimony that this is not an uncommon practice at elections because of the large number of voters that appear after working hours. This provision of the law, if complied with, is a factor that contributes to an honest election. Its violation is evidence of malconduct, fraud and corruption. This court finds and determines that the officers of this district in failing to obtain affidavits of voters to whom assistance was rendered were guilty of malconduct which tended to challenge the result of the election. In this same district thirty-nine names appeared in the poll book that were distinctly dissimilar in appearance to the same names appearing in the permanent register. Several specimens of the writings of three of the election officers of this district were taken and compared with the dissimilar names appearing in the poll book. In many instances the writing in the poll book compared with the specimens furnished by the witnesses. The court finds and concludes that the election officers of this district were guilty of malconduct, corruption and fraud in causing or permitting to be inserted on the poll books the signatures of voters without authority.

There was evidence introduced to the effect that in the ninth district of the second ward, Jersey City, the name Helen Curry was written for a minor office on forty-nine ballots east in that district. The recount showed that Ziegener received seven votes, Stoebling eighty votes. Smith seven votes and Douglas eighty-eight votes in this district which was twelve votes less than Stoebling was given credit for by the local board and was four votes less Douglas was credited by the same board. In the first district of the eleventh ward in which the original canvass of the votes showed Ziegener received seven and Stoebling thirty-seven, Smith seven and Douglas thirty-seven: the names Anne Keyes and William Stewart were written on thirty-six ballots for a minor office. In the second district of the eleventh ward where the local board tallied six votes for Ziegener and forty-height for Stoebling; six votes for Smith and forty-eight for Douglas, the names Thomas Evans and Mary Evans were written forty times on as many ballots for a minor office.

In those three last mentioned districts the names written in pencil was evidently done by some one other than the voter as there is a distinct similarity of signature in each ward of the names written on the ballots in the respective districts mentioned. There was no testimony adduced to prove by whom the signatures were written. Considering the small total vote cast in each district and the similarity of signatures it is quite evident that malconduct was exercised in the casting of those votes or in some other manner that was not regular and lawful. The court finds and concludes that the writing in of those names was evidence of malconduct and fraud that would tend to challenge the result of the election. In the instances where the signatures on the poll books did not correspond with the permanent register and in those cases where the name of a candidate for a minor office, was written on the ballot, the court requested that the voter be subpoenaed to testify whether or not such voter signed the poll book and if he cast a ballot for whom the ballot was cast. If there was such proof the voter could be compelled to testify for whom he voted and if he did not vote that fact could have been established. The officers of the local district boards above referred to were not subpoenaed as witnesses except from the fifth district of the second ward of Jersey Oity. Although the court requested this evidence to be produced it did not materialize. Besides the recount of the ballots in two hundred and fourteen districts before the county board of election, the remaining districts in the county, that is four hundred and thirty-nine, were retallied before this court with the final result that Stoebling’s majority was reduced to ninety-three votes and Douglas to fifty-one votes. The final results are illuminating as Stoebling was originally declared elected by a majority of nine hundred and ninety-seven votes and Douglas by nine hundred and seventy-one votes. In the investigation before this court substantial changes occurred that indicated something above and beyond the mistakes that are ordinarily made in counting ballots. The total number of votes cast in those districts was small. The errors discovered on the investigation showed a variance that could only occur through malconduct on the part of the officers in charge that contributed to a challenge of the result of the election in those districts and the court so finds. The following is a tabulation of those districts:

Jebsey City

Smith Stoebling Douglas Ziegener

Net Net Net Votes Net

Gain Gain Gain Oast Gain

Fifth Ward

9th Dist . 1 18 53

Eighth Ward

8th Dist. 19 64 19

16th Dist. 10 9 66

Ninth Ward

26th Ward 12 27 12

Tenth Ward

4th Dist. . 23 47 23

Eleventh Ward

3d Dist. 9 40 9

6th Dist. . . 18 46 19

Twelfth Ward

22d Dist. ..... 9 7 38

11 OBOKEN

First Ward

6th Dist..... 7 8 17

Fifth Ward

3d Dist. . . 12 12 31

Union City

Fifth Ward

1st Dist. . 6 8 25

Ninth Ward

5th Dist. . 9 61 3

6th Dist. . 12 93 11

Guttenberg

Ziegener Smith Stoebling Douglas

Net Net Net Net Votes

Gain Gain Gain Gain Cast

First Ward

3d Dist........ 9 8 7

Kearny

Third Ward

3d Dist........ 8 7 276

From the recount held before the county hoard of election the result of which was offered in evidence in the investigation the following tabulation of changes indicates to the court that considering the small total vote cast in each district and the large variances between the local district board count and the county board of election recount that the variances would not have occurred if the canvass of the votes in those districts was honestly performed. The court therefore finds and determines that in the districts set forth in the schedule which follows, the officers malconducted themselves to a degree that challenges the result of the election:

Bayonne

Ward District Votes Cast Net Change

First 1 43 33

2 69 21

3 33 5

5 65 18

6 62 6

8 50 9

11 23 3

14 66 5

16 18 11

17 45 15

18 40 15

20 79 18

Ward District Votes Cast Net Change

Second 3 70 20

5 75 28

7 33 16

8 24 8

15 58 21

16 83 35

Third 21 35 14

Jersey City

First 5 91 7

Second 3 94 9

9 99 12

10 97 8

Third 2 134 8

10 80 9

Fourth 4 77 8

7 47 9

Fifth 10 56 14

Sixth 6 47 9

12 78 33

Seventh 13 36 15

34 45 7

56 41 25

Eighth 21 153 13

23 46 19

27 26 9

39 60 50

42 22 5

49 27 9

Ninth 5 70 8

19 82 34

20 42 18

25 o2 19

37 37 8

Tenth 1 52 20

17 31 11

23 41 22

Ward District Votes Cast Net Change

Eleventh 2 54 0

3 40 9

6 45 19

Twelfth. 7 30 17

Hoboken

Third 9 28 4

8 73 47

North Bergen

First 13 19 6

Note — The net change or gain in the above computations is obtained by adding the gain of one candidate to the loss sustained by the opposing candidate. In the tabulation of the third district of the' first ward of Guttenberg the net change is arrived at as follows:

Votes

Ziegener Smith Stoebling Douglas Cast

Original Tabulation 0 0 6 6 7

Gain on Investigation 5 4 2 2

Ziegener’s gain of five plus Stroebling’s loss of four equals net change of nine for Ziegener.

Smith’s gain of four plus Douglas’ loss of four equals net change of eight for Smith.

While the final result of the investigation, and recount before the county board, leaves Stoebling with a majority of ninety-three votes and Douglas with fifty-one votes, the testimony is overwhelming that votes in a number far greater than the majorities thus remaining were illegally cast. The number of such votes cannot, of course, be definitely ascertained, particularly in view of the omission in the testimony to not only prove fraud and maleonduct but the failure to show and trace the result of that maleonduct and fraud upon the vote that was cast. The evidence of maleonduct. fraud and corruption on the part of the members of the district boards as herein found and determined renders the election of the incumbents very doubtful and to such a degree as to prevent the issuance of a certificate of election to the incumbents and if the certificates are issued, to cancel the same. The findings of fact and conclusions of this court are that there was malconduct on the part of the members of the district boards hereinbefore particularly mentioned sufficient to challenge the result of the election of Charles F. Stoebling in the county of Hudson as the male member of the Eepublican state committee and of Daisy Douglas as the female member of the same committee. From the evidence produced before this court, the court finds and determines and concludes that the incumbent Stoebling received in the districts hereinbefore particularly referred to more than ninety-three illegal votes and that the incumbent Douglas received more than fifty-one illegal votes. The judgment of this court is

(I) That the incumbent Charles F. Stoebling is not entitled to a certificate of election to the office of a member of the Eepublican state committee from Hudson county.

(II) That the incumbent Daisy Douglas is not entitled to a certificate of election to the office of a member of the Eepublican state committee from Hudson county.

(III) That the primary election held on September 21st, 1937, in the county of Hudson to choose male and female members of the Eepublican state committee be set aside and for nothing holden.


author: Lawrence, C. C. J.

text:
    THE BOARD OF EDUCATION OF THE TOWNSHIP OF JEFFERSON, IN THE COUNTY OF MORRIS, PLAINTIFF, v. THE NATIONAL UNION BANK OF DOVER, A BODY CORPORATE, DEFENDANT.
    Decided January 13, 1938.
    For the plaintiff, King & Vogt (Robert H. Schenck).

    For the defendant, Samuel C. Meyerson.

   Lawrence, C. C. J.

This suit was submitted to the court, without a jury, at the Morris Circuit, for determination on the admitted facts.

The summons issued on August 23d, 1937. The complaint alleges that from January 1st, 1935, to the date of instituting the suit, plaintiff board of education, a public corporate body of the township of Jefferson, in the county of Morris, was a depositor of its school funds in the bank of defendant at Dover, and during the period had on deposit sums of money in excess of $8,000. Between August 1st, 1935, and March 1st, 1937, the bank paid, as they were presented and received, and charged to the board’s deposit account, in the respective amounts set forth in the bill of particulars, checks or warrants, aggregating $7,505.04,. These payments it is declared, were unlawful, wrongful, without the consent or authority of the board, and therefore improperly charged to its account with the bank. Recovery is accordingly sought for the stated sum, with interest, in the present suit.

The payees named in all of the disputed checks or warrants were individuals residing in the township of Jefferson or elsewhere in the county of Morris. The board of education, however, was not indebted to any of them and none of them was entitled to receive the money for which each check had been drawn; in other words, none of them knew of the checks and had no interest in them. But they were all regular as to form and the signatures of the president and clerk of the board and of the custodian of the school fund were genuine. Mo question arises as to the signing of them by the generally authorized officers or agents of the board of education. What they lacked, as will be shown, was the authority of the board and they were not in payment of any indebtedness due from it to the payees named in them.

At various times, it appears, the payees had had business dealings with the board, but, as to the checks in question, none of them knew that he or she had been named therein as such; none, as stated, had any beneficial interest in any of them; none received any of them, endorsed any of them, or presented any of them to the bank and received the money for -which any of them had been drawn.

The proof discloses that, as a matter of fact, they were all prepared by one Kolar, the clerk of the hoard, on or about their respectives dates; that he inserted the names of the payees, apparently selecting names of residents of the neighborhood at random. Having made them out, he then procured the signature of the president of the board, and, evidently through the misrepresentation that they were to be used in payment of bills due the payees named, with the approval of the board, he also obtained that of the custodian. Thereupon, from time to time during the indicated period, after himself endorsing on the back of each the name of the fictitious payee, without the knowledge or consent of such person, he added his own name below that of the payee, proceeded to the bank and deposited the checks, with the exception of three or four, to his individual account. The bank allowed him to do this without question, and no effort whatever appears to have been made by anyone in the bank to ascertain his right or authority to divert the proceeds of the checks to his own account. The bank does not deny that the transactions occurred as stated, assuming apparently that they were entirely valid, so far as it was concerned.

The result was that in 1935 eleven of such checks were so used by Kolar, and sixty of them in 1936, all of which, by his direction, the bank placed to his individual credit and charged to the account of the school board, thus enabling him to use the money for his own purposes, which he admittedly did. The remaining checks, similarly endorsed, were used by him at other places and ultimately reached the bank and, as in the case of the others, were likewise charged to the board’s account. It was'in this way depleted in the amount for - which recovery is here sought. The endorsements were, of course, forgeries. Kolar was later arrested, indicted and found guilty of the offense. The then president of the board of education was also indicted, charged with conspiring to defraud it, was tried on one of such indictments and convicted; from which conviction an appeal has been taken.

Mrs. Kobinson, the custodian of the school fund, who was in nowise implicated in the matter, testified at the trial of the present suit that she had not been specially instructed as to her duties; that when she signed the checks as they were presented to her by the clerk, without any verified bills on which they were supposed to be based and which had had the approval of the board of education, it was represented to her by him that they were being issued to the persons named in payment of claims they had against the board and with its approval; she had thereupon, after signing them, entered them in her record book and had then handed them to the clerk who took them away with him; that while she knew many of the named payees as local residents of the county, she was not familiar with their signatures; when therefore the checks came back from the bank with the monthly statements of the board’s account, she had compared them with her own book and finding that the dates, names and amounts tallied, she did not suspect any irregularity or discover the forged endorsements, until March 10th, 1937, when she found among the checks returned with one of the bank’s statements one purporting to have the endorsement of a person whose signature she did know and realized that it was not genuine. She immediately called the attention of the board’s attorney to it, with the result that he caused an investigation to be made and the unauthorized checks with the forged endorsements were discovered. He communicated at once verbally with the officers of the bank, and, on April 8th, 1937, wrote, in behalf of the board of education, notifying the bank of the forgeries and demanding that it restore to the board’s account the amounts improperly charged to it, or to reimburse the board for the loss. The bank declined to comply. Hence the present suit.

Plaintiff board predicates its right to recover on the recognized rule, which may be paraphrased as applicable to the suit, to the effect that the implied contract on the part of the defendant bank was that it would disburse the money standing to the credit of the board only on its order and in conformity with its direction, and when it paid the checks in question, to which the names of necessary endorsers had been forged, it must be considered as having paid out its own funds and could not charge the account with the amount, unless it appears that it had a right to do so, on the doctrine of estoppel or because of some negligence chargeable to the board as a depositor. Harter v. Mechanics National Bank, 63 N. J. L. 578, 580; 44 Atl. Rep. 715; referred to in Pannonia Building and Loan Association v. West Side Trust Co., 93 N. J. L. 377; 108 Atl. Rep. 240.

Also, as a corollary to the stated rule, reliance is had on another, likewise recognized, that it was the duty of the bank to inquire as to the genuineness of the payees’ endorsements on the checks and the authority of Kolar to divert them from the usual business channels to his own use, as he did. It is accordingly charged by plaintiff that the failure of the defendant to make such inquiry was not only a breach of duty that it owed to it (the board), but was equivalent to an act of bad faith and made it liable to it for the amount of the checks charged to its deposit account. Passaic-Bergen Lumber Co. v. United States Trust Co., 110 N. J. L. 315; 164 Atl. Rep. 580; and Singer Sewing Machine Co. v. Citizens National Bank of Englewood, 111 N. J. L. 199; 168 Atl. Rep. 32; affirmed, 112 N. J. L. 497; 171 Atl. Rep. 796. Also as discussing a related subject, Robbins v. Passaic National Bank and Trust Co., 109 N. J. L. 250, 253; 160 Atl. Rep. 418.

Counsel for plaintiff also urges as applicable to the issue involved article 1, section 23 of the Negotiable Instrument act (Comp. Stat., p. 3738), providing that where a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.

Three defenses are pleaded by defendant: (1) that the checks having been made to the order of a fictitious payee, under article 1, section 9, paragraph 3 of the act (Comp. Stat., p. 3136), they must be regarded as payable to bearer and delivery to the bank by Kolar passed valid title. Article 111, section 30 (Comp. Stat., p. 3138) ; (2) that plaintiff was negligent in failing to examine the checks and discover their invalidity, when they were returned with the monthly statements of the account, and its failure to do so was tantamount to an account stated in settlement, which estops it and precludes recovery; and (3) under Pamph. L. 1908, p. 428 (Comp. Stat., p. 3156, § 189-a), which provides that no bank shall be liable to a depositor for the payment by it of a forged or raised check unless within one year after the return to the depositor of the voucher of such payment such depositor shall notify the bank that the check so paid was forged or raised, plaintiff can recover, if at all, only as to those checks not affected by the statute, which is one of limitation.

Article 1, section 9, paragraph 3 of the Negotiable Instruments act, supra, was construed in the ease of Ocean Accident and Guarantee Corp. v. Lincoln National Bank, 112 N. J. L. 550; 172 Atl. Rep. 45, and it was there held that when the instrument is payable to the order of a fictitious or non-existing person the payee is a fictitious person within the meaning of the statute, whether the name be that of an existing person or one who has no existence, and that the instrument may in each case be treated by a lawful holder as payable to bearer. It must appear, however, in the language of the paragraph, that “such fact [fictitious payee ] was known to the person making it so payable.” Here, it is evident that defendant cannot invoke the provision as a justification for its action.

The checks purported to be those of plaintiff board of education. There is not the slightest evidence that members of the board knew of them or the transactions in which they were used by Kolar, and, while it is said that the president of the board knew of them, it does not appear that Mrs. Bobinson, the custodian of the school fund, had any knowledge of the fraudulent character of the checks, or the use to which they were being put by the clerk. Since her siguature, generally speaking, was essential to give validity to a check or warrant of the board, thereby becoming one of its agents as the drawer, it was necessary that the proof show that she and members of the board had such knowledge.

The president, clerk and custodian were mere agents or instrumentalities of the board in signing and issuing its checks or warrants. The board in fact bore the relation of drawer to them, and it is apparent that information as to the fraud being practiced by Kolar, the clerk, was deliberately and carefully concealed from members of the board and Mrs. Kobinson. In Deal v. Sieling, 102 N. J. L. 585, 589; 133 Atl. Rep. 409, it was said: “* * * conceding the knowledge of the engineer of the violation of the contract by the contractor, coupled with the former’s consent to such violation — thereby joining with the contractor in the perpetration of a fraud upon his principal — such knowledge will not be imputed to the respondent” (principal). See, also, as to the negligence of municipal agents in the performance of public duties, City of Paterson v. Erie Railroad Co., 78 N. J. L. 592; 75 Atl. Rep. 922, and Reilly, Admx., v. New Brunswick, 92 N. J. L. 547; 108 Atl. Rep. 107. Defendant can take nothing of the point raised under the first defense.

With regard to the second item of defense, in which it is pleaded that plaintiff is precluded from recovery by reason of its alleged negligence in failing to discover, by an examination of the returned checks and the monthly statements of the board’s account with the bank, the fraudulent conduct of Kolar, here against it appears that the evidence is not adequate to support such defense. Mrs. Kobinson, the custodian, was not familiar with the signatures of the fictitious payees, nor does it appear that any member of the board knew them or ought to have known them. In Harter v. Mechanics National Bank, supra, it was pointed out that the return to a depositor of his check with a forged endorsement, together with his balanced passbook, casts on him only the duty of exercising reasonable care and diligence to examine the vouchers and the account as stated by the bank, and to inform it of any errors thus discoverable. And at page 580 of the case, it was said: “As in the present case, the plaintiffs were not in fact acquainted with Miss Young’s signature, and there is no ground for claiming that they ought to have known it, they did not fail in duty to the bank by not discovering the forgery on return of the check. Indeed, they were entitled to assume that the bank, before paying the check,, had ascertained the genuineness of her apparent endorsement.”

Again, in Pratt v. Union National Bank, 79 N. J. L. 117; 75 Atl. Rep. 313; affirmed, 81 N. J. L. 588; 80 Atl. Rep. 492, it is stated (at page 121 of the state report) : “But reasonable diligence in the examination of the passbook and vouchers may often be entirely ineffectual to discover forged endorsements. Tt will always be so when the depositor is unacquainted with the handwriting of the payee or other persons who endorse his checks. In the case at bar, it appeared that the plaintiff was not in fact acquainted with the payee’s signature, and there is no ground for claiming that he ought to have known it. * * The text then repeats the expression found in Harter v. Mechanics National Bank that the depositor had not failed in duty to the bank and had a right to assume that before paying the check involved it had ascertained the genuineness of the payee’s endorsement. Since it does not appear that members of the board of education or Mrs. Bobinson, the custodian, were chargeable with knowledge of the fraud perpetrated by Kolar, the clerk, and the evidence is not sufficient to show that they were negligent in failing to discover the forged endorsements in the early stages of the transactions, the second defense in defendant’s answer likewise fails of factual support.

Finally, the third defense, which pleads the statute of limitation of 1908, supra, relating to a forged or raised check, does not, in view of the circumstances here involved, appear to preclude plaintiff from recovery as to any of fhe checks included in the bill of particulars.

It may be said that in the cited case of Pannonia Building and Loan Association v. West Side Trust Co. (at page 386 of the state report), it was observed by Chancellor Walker: “The trial judge ruled that this [the statute] disclosed no defense because the statutory rule does not apply to the forgery of a payee’s endorsement. It may be that the forgery of a check contemplated by this statute of limitation is that of the maker’s signature, which he, of course, knows, and not of an endorser’s signature, which he may not know. The Pratt case did not construe the statute of 1908, it being held that the act did not apply because not retroactive. As to whether that statute constitutes a defense in the case at bar, because the plaintiff did not notify the defendant of the forged endorsements within one year after the return of the checks, we express no opinion, as the question is not raised as a ground of appeal.”

Inasmuch as the question is here raised, however, by pleading the statute, and argument has been had thereon, its application being urged by defendant and denied by plaintiff, it is sufficient to say that if through no fault of the maker a forged endorsement of the payee’s signature, with which the maker is not familiar, is not discovered until more than a year after the instrument’s return, in circumstances such as are here present, a reasonable interpretation of the statute would lead to the conclusion that it applies only to one containing a signature known to the maker or which could have been ascertained in the exercise of due care. As the proof here discloses that plaintiff had no notice of the forged endorsements of the checks in question, and was without knowledge of the unusual transactions until over a year after many of the checks had been returned to the custodian of the school fund, information as to their invalidity obviously having been purposely concealed by Kolar, and, not improbably, the president of the board, it cannot be said that plaintiff had been negligent. The board, in other words, could not have notified the bank, within the year limited by the statute, if, through no fault of its own, it failed to acquire knowledge of the forged endorsements. This would also apply to Mrs. Eobinson, the custodian, who was not familiar with the signatures of the fictitious payees.

In all the circumstances of the case, as shown by the evidence, since the statute does not clearly indicate whether forged endorsements of checks are to be regarded as within the scope of its provision, it would seem that it has no application to the issues in the present suit. It is so held. As no negligence is found on the part of plaintiff, while, on the other hand, defendant, considering the evidence, is regarded as having breached its duty to plaintiff in failing to make proper inquiry to ascertain by what authority Kolar was diverting moneys in the board’s deposit account to his individual account in the bank, through the medium of the cheeks made out to fictitious payees with forged endorsements, it follows that plaintiff is entitled to recover. Certainly Kolar gave the bank abundant reason for inviting inquiry, not alone for diverting the cheeks from the usual business channels, but as to the genuineness of the endorsements of the purported payees. Its failure in this respect was a breach of the duty it owed plaintiff not to allow its deposit account to be so used.

Judgment may be entered in favor of plaintiff and against defendant for the sum of $7,505.04, with interest on the various items set forth in the bill of particulars from the respective dates on which they were charged to plaintiff’s deposit account by the bank. When so ascertained, a supplemental or amended postea may be submitted, in order that judgment may he entered for the indicated sum with the interest so calculated.