author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    ELMER JOHNSON, Jr., PLAINTIFF, v. FLORENCE E. WOOD, AS EXECUTRIX OF THE LAST WILL OF JOHN G. WOOD, DECEASED, DEFENDANT.
    Decided December 18, 1936.
    For the rule, Collins & Corbin (Edward A. Markley and James J. Lang an).

      Contra, Elmer Johnson, Jr., pro se.

   Brown, C. C. J.

This is an application by defendant to have a writ of attachment quashed and the attachment proceedings dismissed on the following grounds:

1. The transfer by the holder of the shares of stock sought to be attached has not been enjoined, as provided for in section 13 of the Uniform Stock Transfer act (Pamph. L. 1916, p. 398; Cum. Supp. Comp. Stat. 1911-1924, § 47-162) and, therefore, said attachment is not valid.

2. The auditor appointed by this court by order dated May 22d, 1936, has failed to file his report as provided for in section 21 of the Attachment act, although more than two months have passed since the return of the writ.

3. There is not present in the State of New Jersey any property of the defendant, and, therefore, the writ of attachment cannot be executed.

4. The situs of the shares of stock on which attempt was made to attach is in Rockingham county, New Hampshire, where the will of the late John G. Wood was probated and where Florence E. Wood, who was appointed executrix of the last will of John G. Wood, deceased, resides.

5. The Attachment act of 1901, under which this suit was instituted, does not authorize the attachment of property of an executrix appointed under the laws of a foreign state for the debts of said executrix incurred after the death of the testator.

6. The statutes of the State of New Jersey do not confer upon plaintiff a right to sue defendant, a foreign executrix, in her representative capacitj’ in the courts of this state.

7. The alleged claim on which the plaintiff seeks to recover is not liquidated.

The facts before the court on this application are contained in the writ of attachment; the jurisdictional affidavit of plaintiff filed at the time the writ was issued; depositions taken by defendant in New Hampshire; a certified copy of the ancillary proceedings instituted by the plaintiff in the Court of Chancery of New Jersey. No depositions were filed by the plaintiff. In lieu thereof affidavits taken ex parte without notice were filed. While there is nothing in these affidavits which would change the conclusions of the court if it were to accept as true the allegations contained therein, nevertheless, the court cannot consider them as they were taken ex parte without notice. The Supreme Court has frequently held that on the return of a rule to show cause why a writ of attachment should not be quashed, ex parte affidavits taken without notice should not be considered. Robinson v. Mellon, 2 N. J. Mis. R. 1184; 126 Atl. Rep. 863. From the record before the court it appears that on December 26th, 1934, John G. Wood, a resident of Exeter, New Hampshire, died and letters testamentary were issued to his sister, Florence E. Wood, by the Probate Court of Rockingham county, New Hampshire. At the time of his death the decedent was the owner of two hundred fifty (250) shares of common stock and sixty (60) shares of preferred stock of the International Harvester Company, a corporation of New Jersey. Both John G. Wood and Florence E. Wood have at all times been residents of the State of New Hampshire, and his estate is in the process of administration in the Rocking-ham County Probate Court. Elmer Johnson, Jr., claims he is owed a debt of seven thousand one hundred twenty-six dollars and fifty cents ($7,126.50) by the defendant, which arose in the following manner: Florence E. Wood, as executrix, employed the plaintiff to conduct an investigation and to assist in a certain action pending in the United States District Court for the Southern District of New York, in which suit the said Florence E. Wood, as executrix, was substituted as a party plaintiff; that in consideration of the services to'be rendered by him the said Florence E. Wood, as executrix, agreed to pay his disbursements in connection with said investigation, if the same were incurred and to recompense him for said services; that in reliance upon such promise he proceeded to render services up to and including February, 1936, but that Florence E. Wood, as executrix, has refused and neglected to pay disbursements incurred by him and that by reason of the failure to pay said disbursements plaintiff is unable to continue to render services to her. Johnson alleges that he has made disbursements or incurred necessary charges in connection with said services in the sum of one thousand one hundred twentjr-six dollars and fifty cents ($1,126.50) for which he says he has received no reimbursement ; that the reasonable value of the services rendered by him to Florence E. Wood, as executrix, as aforesaid, is the sum of six thousand dollars for which ho claims he has received no payment. On April 8th, 1936, Elmer Johnson, Jr., filed an affidavit with the county clerk of Hudson wherein he stated that Florence E. Wood, as executrix of the last will of John G. AYood, is not a resident of the State of New Jersey and she is indebted to him in the sum of seven thousand one hundred twenty-six dollars and fifty cents ($7,126.50) as nearly as he can specify. A writ of attachment issued out of the Hudson County Circuit Court, and an attempt was made by the sheriff to attach shares of stock of the International Harvester Company which are in New Hampshire and assets of the Now Hampshire estate by serving a copy of the writ on an officer of the Hudson Trust Company, registered agent of the International Harvester Company, at Hoboken, New Jersey. The writ was returnable on May 5th, 1936. On May 22d 1936, an order was entered appointing an auditor and requiring publication. No further steps have been taken by the plaintiff, except that an affidavit and brief were filed by plaintiff as attorney pro so, in opposition to this motion to quash. On April 15th, 1936, Elmer Johnson, Jr., obiained from the New Jersey Court of Chancery an order directing the International Harvester Company and Florence E. AYood, executrix of John G. AYood, to show causo why an injunction should not issue restraining both from transferring certain shares of common and preferred stock in the International Harvester Company and held by the executrix as part of the estate of her decedent. The order imposed a temporary restraint on the International Harvester Company, from paying dividends and transferring the shares on its books. Vice-Chancellor Kays has decided that this restraint should he continued until the further order of the court, hut no order has been entered continuing the restraint. No order or injunction has been obtained restraining the executrix Florence E. AYood, from transferring the shares. Section 13 of the Uniform Stock Transfer act (Pamph,. L. 1916, p. 398; 1 Cum. Supp. Comp. Stat. 1911-1924, p. 693, § 47-162) provides:

“Section 13, No Attachment or Levy Upon Shares Unless Certificate Surrendered or Transfer Enjoined. — No attachment or levy upon shares of stock for which a certificate is outstanding shall be valid until such certificate be actually seized by the officer making the attachment or levy, or be surrendered to the corporation which issued it, or its transfer by the holder be enjoined. Except where a certificate is lost or destroyed, such corporation shall not be compelled to issue a new certificate for the stock until the old certificate is surrendered to it.”

One of the methods given by this section must be followed in order to validate an attachment or a levy on shares of stock. Mulock v. Ulizio, 102 N. J. L. 251; 131 Atl. Rep. 622; Wallach v. Stein, 102 N. J. L. 517; 133 Atl. Rep. 81; affirmed, 103 N. J. L. 470; 136 Atl. Rep. 209. Admittedly the certificate representing the shares of stock has not been “actually seized by the officer making the attachment” nor has it been “surrendered to the corporation which issued it.” The third method given by the Uniform Stock Transfer act, section 14 (Cum. Supp. Comp. Stat. 1911-1924, § 47-163), by which an attachment upon shares of stock may be validated is an injunction out of a court of appropriate jurisdiction against the transfer of the certificates by the holder. Has the plaintiff obtained an injunction against the transfer of the certificate by the holder? The holder of the certificate is Florence E. Wood, executrix of the last will of John G. Wood, deceased. The injunction does not purport to operate against the executrix but restrains the International Harvester Company from transferring the stock on its books and from paying dividends to the holder. If a transfer on the books of the International Harvester Company were a prerequisite to any transfer of the certificate by the holder, it would be arguable that an injunction against the company would satisfy the requirements of section 13 of the Uniform Stock Transfer act. By such circuity the transfer of the certificate might be effectively enjoined. But if there exists a recognized means of transferring the certificate without the necessity of a transfer on the books of the corporation then an injunction against the International Harvester Company is not a compliance with section 13 since a transfer by the holder is not enjoined. Section 1 of the Uniform Stock Transfer act provides {Cum. Supp. Comp. Stcd. 1911-1924, § 47-160) :

“Section 1. How Title to Certificates and Shares May Be Transferred. — Title to a certificate and to the shares represented thereby can be transferred only,
a. By delivery of the certificate endorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or
b. By delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign, or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney may be either in blank or to a specified person.
The provisions of this section shall be applicable although the charter or articles of incorporation or code of regulations or by-laws of the corporation issuing the certificate and the certificate itself, provide that the shares represented thereby shall be transferable only on the books of the corporation or shall be registered by a registrar or transferred by a transfer agent.”

This section permits the executrix to transfer the title to the certificate and the shares thereby represented by a delivery of the certificate endorsed or by a delivery of the certificate and a separate assignment. It specifically negatives the necessity of a transfer on the books of the company. The purpose of section 1 is made apparent in a note by the commissioner on uniform state law found in 6 Uniform Laws Annotated 2, which follows:

“The provisions of this section are in accordance with the existing law (see Coots on Corporations, §§ 373 el seq.), except that the transfer of the certificate is here made to operate as a transfer of the shares, whereas at common law it is the registry on the books of the company which makes the complete transfer. The reason for the change is in order that the certificate may, to the fullest extent possible, be the representative of the shares. This is the fundamental purpose of the whole act, and is in accordance with the mercantile usage. The transfer on the books of the corporation becomes thus like the record of a deed of real estate under a registry system.”

Thus the injunction issued against the International Harvester Company is totally inadequate to satisfy the mandate of section 13, that the transfer of the certificate by the holder be enjoined. That section in its most liberal interpretation requires an injunction that will prevent the valid transfer by the holder. An attachment upon shares of stock is ineffective unless the holder be enjoined from transferring the certificate by a court having jurisdiction over him. Amm v. Amm, 117 N. J. Eq. 185. Since no injunction has been issued which prevents Florence E. Wood from making a transfer of the certificate there is no compliance with section 13 of the Uniform Stock Transfer act. Section 21 of the Attachment act (1 Cum. Supp. Comp. Slat. 1911-1924, p. 101, § 14-21), provides:

“On the return of the writ, the court shall appoint an auditor to adjust and ascertain the amounts due to the plaintiff and each of the applying creditors; the auditor shall have power to administer oaths and to examine witnesses touching the demands of the plaintiff and creditors; and at the expiration of two months from the return of the writ he shall make and file a report of the amounts so ascertained; * * *.”

In Little v. Long, 93 N. J. L. 99; 107 Atl. Rep. 412, it was said by the Supreme Court (at p. 99) :

“The procedings [attachment] are statutory and out of the course of the common law, and result in taking the property of a defendant in an ex parte proceeding, in invitum, and therefore must be strictly pursued.”

The Supreme Court in Black v. Emack, 11 N. J. Mis. R. 363; 166 Atl. Rep. 513, held that the failure of an auditor to make and file a report as required bj section 21 of the Attachment act is sufficient grounds for quashing the writ. While it is true that the plaintiff in the Black case showed a lack of diligence in prosecuting his action, the decision is none the less a holding that a failure to comply strictly with the statute is sufficient reason for quashing the writ. In the case sub judiee more than seven months have elapsed since the return of the writ and no report lias been filed by the auditor. The plaintiff, Elmer Johnson, Jr., has exhibited a lack of diligence in his failure to commence publication in accordance with the order entered in this cause on May 22d, 1936. Prior to the enactment of the Uniform Stock Transfer act and the decision in First National Bank of Boston v. Maine, 284 U. S. 312, the right to attach a non-resident’s stock in a New Jersey corporation was recognized under certain circumstances. A case dealing with the question is Cord v. Newlin, 71 N. J. L. 438; 59 Atl. Rep. 22. In that case Mr. Justice Dixon, speaking for the Supreme Court, said (at p. 440) :

“When corporate stock is so far subject to the control of the corporation that its formal transfer cannot he perfected without the action of the corporation, process of garnishment may he effectually served upon the corporation at its domicile. Such process warns the corporation not to perfect any transfer without the permission of the court, and thus subjects that matter to the jurisdiction of the court. What effect this will have upon the title of a subsequent bona fide purchaser for value need not now be considered.”

Sections 1 and 13 of the Uniform Stock Transfer act, supra, and the decision of the United States Supreme Court in First National Bank of Boston v. Maine, supra, have had a radical effect on the right to attach a non-resident’s stock in a -New Jersey corporation. In the last mentioned case it was held:

“* * * Ownership of shares by the stockholder and ownership of the capital by the corporation are not identical. The former is an individual interest giving the stockholder a right to a proportional part of the dividends and the effects of the corporation when dissolved, after payment of its debts. The Delaware Railroad Tax, 18 Wall. 206, 229, 230; Rhode Island Trust Co. v. Doughton, 270 U. S. 69, 81; Eisner v. Macomber, 252 Id. 189, 213, 214. And this interest is an incorporeal property right which attaches to the person of the owner in the state of his domicile.”

It is to be noted that in Cord v. Newlin supra, it is stated that the stock may be attached when it is so far subject to the control of the corporation that its formal transfer cannot be perfected without the action of the corporation. ■ Since the enactment of section 1 of the Uniform Stock Transfer act, the transfer can be accomplished without any action on the part of the corporation. Klein v. Wilson & Co., Inc. (N. C. N. J., 1924), 7 Fed. Rep. (2d) 769; affirmed on opinion, 7 Id. 777. The change in the law effected by the case of First National Banlc of Boston v. Maine, supra, was recognized by our Court of Errors and Appeals in the case of Miller v. McCutcheon, 117 N. J. Eq. 123; 175 Atl. Rep. 155. It, therefore, appears that the situs of the shares of stock is in New Hampshire and-there is not present in this state any property of the defendant which can be attached.

Another question presented by the motion in this case is whether an attachment lies against the property of a decedent in the case of a debt contracted by an executor after the death. A brief review of the legislative history of the Attachment act is necessary for a proper determination of this ground to quash the writ of attachment in the instant case. The original Attachment act was passed March 8th, 1798 (see revision of William Paterson published 1800 by Matthias Day, pages 296 to 302). Section 1 provided for attachment against absconding debtors, and section 26 for attachment against absent debtors. Those sections remain the same in the revision printed for the state by Joseph Justice in 1821 (see Eevision of 1821, pages 355-364). They read as follows:

"1. Be It Enacted by the Council and General Assembly of this State, and It Is Hereby Enacted by the Authority of the Same, That if any creditor shall make oath or affirmation before any judge of any of the courts of record of this state, or justice of the peace of any county in the same, that he verily believes, that his debtor absconds from his creditors, and is not, to his knowledge or belief, resident in this state at that time, then it shall be the duty of the clerk of the Supreme Court, or of the court of common pleas, to issue a writ of attachment, to be directed to the sheriff or coroner, as the case may require, and returnable to the next term, commanding him to attach the rights and credits, moneys and effects, goods and chattels, lands and tenements of such debtor, wheresoever they may be found; which oath or affirmation shall, prior to the sealing of the said writ, be delivered to the said clerk, to be by him hied in his office. (Revision 1821, page 355.)
“26. And Whereas debtors, who reside out of this state, may have property sufficient within the same to pay their debts, or some part thereof, be it therefore further enacted, that the rights and credits, moneys and effects, goods and chattels, lands and tenements, of every debtor, who may reside out of this state, shall be liable to be attached, taken, proceeded against, sold, assigned, transferred and conveyed, for the payment of his debts, in the like manner, as nearly as may be, as the rights and credits, moneys and effects, goods and chattels, lands and tenements of other debtors are made liable by this act: Provided, That instead of the oath or affirmation hereinbefore mentioned, the applicant for such writ of attachment shall, before the sealing thereof, make oath or affirmation [which shall be filed in the office of the clerk of the court, out of which the same shall be issued] before any judge or justice aforesaid, that the person, against whose estate such attachment is to be issued, is not, to his knowledge or belief, resident at that time in this state, and that he owes to the plaintiff a cerfain sum of money, specifying, as nearly as he can, the amount of the debt or balance.” (Revision of 1821, pages 361, 362.)

Such were the provisions of sections 1 and 26 in 1835, when Chief Justice Hornblower, in Haight v. Executors of Bergh, 15 N. J. L. 183, held (at p. 184), that a proceeding by attachment against executors and administrators was not authorized either by section 1 or section 26 of the Attachment act then in existence. The decision in Haight v. Executors of Bergh, supra, was followed by the Supreme Court (1890) in Muller v. Leeds, 52 Id. 366; 19 Ail. Rep. 261. Section 1 of the original Attachment act remains the same in the Revision of 1847 (Revision of 1847, page 48), but section 26 in the Revision of 1821 becomes section 40 of the Revision of 1847. Section 40 of the Revision of 1847 becomes section 3 in the Revision of 1896, section 1 remaining the same. When the Attachment act was re-written in 1901, sections 1, 2 and 3 of the Revision of 1896 were all placed together as section 1 (1 Comp. Stat., p. 133; Pamph. L. 1901, p. 158). Therefore, it is clear that substantially the provisions of sections 1 and 26 of the original Attachment act are embodied in section 1 of the current act, and it follows that since the decision in Haight v. Executors of Bergh, supra, a proceeding by attachment against executors and administrators was not authorized either by section 1 or section 26 of the original Attachment act, it is not now authorized under section 1 which embodies the provisions of sections 1 and 26 of the act of 1798 substantially. Section 27 of the original Attachment act provided for attachment against the estate of joint debtors. This is now section 3 of our Attachment act. There is no claim of a joint debt in this case. In the revision published in 1847, section 44 was added to the Attachment act, providing as follows:

“That the writ of attachment may be issued against the heir or devisee of any deceased debtor in all eases in which the writ might lawfully have been issued against such debtor in his lifetime; and all lands, tenements, hereditaments and real estate descended from or devised by such deceased debtor to the heir or devisee against whom the attachment is issued may be attached and taken by virtue of the said writ/'’ (Revision of 1847, page 59.)

See Jordan v. Moore, 82 N. J. L. 552; 82 Atl. Rep. 850. This appears as section 8 in the Revision of 1874. When the Attachment act was re-written in 1901, section 8 became section 5 in an amended form, the important amendment being that provision was made for the issuance of the writ for the debt of a deceased debtor against his executor in all cases in which the writ might have issued against such debtor immediately prior to his decease. Section 5 remains in this form to-day, being as follows:

“5. Attachment for Debt of Deceased Debtor Against Executor, Etc.; Distribution of Proceeds. — Attachments may issue for the debt of a deceased debtor against his executor, administrator, trustee, heir or devisee in all eases in which the writ might have issued against such debtor immediately prior to his decease, and all real estate descended from or devised by him to the heir or devisee may he attached; and his personal estate in the hands of the executor, administrator, trustee, or other person may be attached, and the executor, administrator, trustee, heir and devisee, and such other person or any or all of them, may he joined as defendants in the same action; provided, that in the distribution of the proceeds of any attachment so issued against the executor, administrator, trustee, heir or devisee, the plaintiff shall not be preferred, but shall share ratably with the applying creditors; a legacy or distributive share of an estate in the hands of the executor, administrator or trustee may he attached in an action against the legatee or next of kin for his debt.” Pamph. L. 1901, p. 159; 1 Comp. Slat., p. 136.

It is apparent that section 5 does not provide for attachment in the case of a debt contracted by an executor after testator’s death. It provides only for the issuance of the writ in the case of a debt contracted by testator prior to his death. This specific question apparently has not been passed upon as yet by the courts of this state. However, in the case of C. Cedar Cove v. Staub, 10 N. J. Mis. R. 120; 158 Atl. Rep. 97, the Supreme Court held :

“We think the affidavit was insufficient It apparently is issued under the fifth section of the Attachment act of 1901 (Comp. S1a1., p. 136), which enacts that attachments may issue for the debt of a deceased debtor against inter alia the heirs or devisees in all eases in which the writ may have issued against such debtor immediately prior to bis decease. There is no averment in the affidavit of any indebtedness by the deceased or that the defendants have assumed or otherwise owe a debt owing by the deceased.”

Tf the legislature intended to permit attachment for a debt contracted by decedent’s representatives subsequent to his death, provision therefor would have been incorporated in the law when the amendments of 1901 were added to section 5 of the act. And in this connection it is well to bear in mind the statement of the Supreme Court in Little v. Long, 93 N. J. L. 99; 107 Atl. Rep. 412, that:

“The proceedings [attachment] are statutory and out of the course of the common law, and result in taking the property of a defendant in an ex parle proceeding, in invitum,, and therefore must be strictly pursued.”

The Supreme Court, in Young v. Potter Title and Trust Co., 114 N. J. L. 561 (at p. 565); 178 Atl. Rep. 177, stated:

“But this argument runs against * * * the well established rule that foreign administrators and foreign executors are not liable to be sued in their representative capacity in the courts of this state unless power to be sued has been conferred by statute. Durie v. Blauvelt, 49 Id. 114; Green et al. v. Dolin, 5 N. J. Mis. R. 1000; Babbit v. Fidelity Trust Co., 70 N. J. Eq. 651.

It follows that the Attachment act of 1901 does not authorize the attachment of property of a foreign decedent for the debts of an executrix incurred after the death of the testator.

In order that attachment lie, the claim must be liquidated. Sher v. Church, 93 N. J. L. 73; 107 Atl. Rep. 57; Heckscher v. Trotter, 48 N. J. L. 419; 5 Atl. Rep. 581. The claim in the case sub judice is for services rendered and disbursements made. There was no agreement with respect to the amount that was to be paid. Plaintiff says the reasonable value of the services is $6,000. In this respect the case resembles Skratt v. Camera, 12 N. J. Mis. R. 826; 175 Atl. Rep. 366, in which this court held the claim was not liquidated. The disbursements cannot be recovered unless it can be shown they were reasonably necessary in the furtherance of the investigation. The question of the amount due, if any, either for services or disbursements, cannot be determined without the intervention of a jury. Jeffrey v. Wooley, 10 N. J. L. 123. The claim in this case is not liquidated and attachment will not lie under the Attachment act.

For the foregoing reasons the writ of attachment should be quashed and the attachment proceedings dismissed. A rule may be entered accordingly.


source: Caselaw Access Project

author: Neutze, C. P. J.

license: Public Domain

text:
    Camden County Court of Common Pleas.
    EDWARD F. HEMMINGER, PLAINTIFF-APPELLEE, v. FRED KLAPRATH, DEFENDANT-APPELLANT.
    Decided January 26, 1937.
    For the defendant-appellant, Edwin Field Crane.

    For the plaintiff-appellee, W. Louis Bossle.

   Neutze, C. P. J.

From a verdict and judgment in favor of the plaintiff against the defendant, rendered before one of the Justice of Peace Courts in Camden county, the defendant appeals. The facts in the appeal are stipulated and are not in dispute.

It appears that as of February 7th, 1934, the plaintiff, Edward F. Hemminger, was the owner of a house which was encumbered by a first mortgage held by the Metropolitan Life Insurance Company. The defendant occupied the premises as the tenant of the plaintiff, on a month to month ten- ■ ancy and paid the plaintiff the sum of $30 a month payable in advance on the first of the month. On February 7th, 1934, the mortgagee, through its mortgage loan correspondent notified the defendant that the plaintiff’s mortgage was in default and that future payments of rent were to be made to the agent, of the mortgagee, named in the letter. On the same day the mortgage loan correspondent sent a letter to the plaintiff informing him that they had attached all rents, issues and profits which were due and payable on that day and from thenceforth on from the premises in question because of the default.

The defendant paid no rent to the plaintiff for the month of March or April, 1934, but neither did he pay such rent, when due, to the agent of the mortgagee.

The plaintiff started his suit April 6th, 1934, upon which this appeal is based, against the defendant for two months rent due when suit was commenced. On April 13th, 1934, the defendant paid $60, representing the two months rent, to the agent of the mortgagee. On April 23d, 1934, the plaintiff secured a judgment against the defendant for $60 and costs. It is from this judgment that the appeal emanates.

The law is well settled that a tenant may attorn to a mortgagee, who holds a mortgage in default, and pay such a mortgagee the rent without fear of being compelled to pay the rent a second time, to the owner-mortgagor (Del-New Co. v. James, 111 N. J. L. 157; 167 Atl. Rep. 747; Landlord and Tenant act, 3 Comp. Stat., p. 3076, § 26); but a tenant cannot with impunity pay to such a mortgagee rents which have accrued and become payable prior to the attornment. Sanderson v. Price, 21 N. J. L. 637.

The issue before us, therefore, narrows itself down to the ascertainment as to when the defendant in this case attorned to the mortgagee. “Attornment is an act by which a tenant acknowledges his obligation to a new landlord.” Del-New Co. v. James, supra (at p. 748). We find the word “attorn” defined by 1 Bouv. (8th ed.) 281, means “to turn over; to transfer to another money or goods; to assign to some particular use or service.” It is apparent that attornment by a tenant to a new landlord or a mortgagee requires an overt act on the part of the tenant before it can be said that the tenant has attorned. The defendant in this case did not pay over the money representing the rent airead}' due, to the agent of the mortgagee until April 13th, 1934, which was a date subsequent to the date upon which the plaintiff started suit, namely April 6th, 1934, for rent past due and which was then a debt running from the defendant to the plaintiff, as the tenant had not attorned to anyone else when the rent became due. Though rents are an incident to the reversion of land, rents already accrued are personalty and not to be treated as realty so as to belong to someone coming into possession of the land at a later date. This principle is clearly illustrated in those cases where a tenant owes rent and the landlord dies. The accrued rent is payable to the personal representative of the decedent and not to the heirs of the decedent.

The reason for allowing a tenant to attorn to the mortgagee rests upon the ground that after default the mortgagee could bring ejectment and the tenant may retain possession by paying the mortgagee an agreed sum in lieu thereof. The payments are not based upon the lease between the mortgagor and the tenant but rather so that the mortgagee shall not treat the tenant as a trespasser. Therefore as to any rents accruing subsequent to the attornment the tenant is protected. However the more default on the part of the mortgagor does not entitle the mortgagee to the rents. There are two methods by which a mortgagee of a mortgage in default may secure the rents of the property. He may have a receiver appointed by the court or may take possession personally, either through ejectment or by having the tenant attorn to him. Stanton v. Metropolitan Lumber Co., 107 N. J. Eq. 345; 152 Atl. Rep. 653; Bermes v. Kelley, 108 N. J. Eq. 289; 154 Atl. Rep. 860; Paramount Building and Loan v. Sacks, 107 N. J. Eq. 328; 152 Atl. Rep. 457; Stewart v. Fairchild-Baldwin Co., 91 N. J. Eq. 86; 108 Atl. Rep. 301. But the mortgagee cannot be said to ho in possession by merely giving the tenant notice of the default in the mortgage. In the case of Sander-son v. Price, supra, the court held that a tenant was not liable for mesne profits to a mortgagee from the time of notice of default nor from the time of service upon the tenant of a declaration in ejectment but only from the time of actual entry by the mortgagee. In the ease of Stewart v. Fairchild-Baldwin Co., 91 N. J. Eq. 86; 108 Atl. Rep. 301 (at p. 302), Mr. Justice Tronchará said: “The mortgagee after breach of condition, having a title in the mortgaged premises possessing all the incidents of a common law title, and only subject to be divested by the equitable proceeding to redeem, and having the right to possess the property has the right, from the date of talcing such possession, to the profits arising from the estate.” (Italics mine.) The court further said: “Since a mortgagee taking possession of mortgaged premises is not entitled to rents accrued before the date of taking possession, it follows that a receiver is not.” Up to the time of taking possession either actually by the mortgagee or by attornment of the tenant to the mortgagee, the mortgagor is entitled to the rents accrued. Hinch v. Cohn, 86 N. J. L. 615; 92 Atl. Rep. 378; Badaracco v. Gatti Paper Stock Corp., 114 N. J. Eq. 551; 169 Atl. Rep. 281; Kenney v. 149 North Avenue Corp., 115 N. J. Eq. 314; 170 Atl. Rep. 822.

The defendant was indebted to the plaintiff for two months rent when suit was commenced and the defendant may not defeat plaintiff’s ownership to the debt by paying the mortgagee.

Judgment of the justice of the peace affirmed.


author: Grosman, A. M.

text:
    Edna B. Flavell, complainant, v. William Watson Flavell, defendant.
    [Decided February 2d, 1937.]

      Mr. John Trier, pro se.

      Messrs. Carl & William Abruzzese (by Mr. Carl Abruzzese), for the respondent Edna B. Flavell.
   Grosman, A. M.

This is an application by Mr. John Trier, of the Essex bar,' to amend the final decree entered in this cause; to have his compensation for services determined and to impress a solicitor’s lien therefore upon the respondent’s alimony. He prays that the decree be amended by deleting therefrom this provision :

“And it is further ordered, adjudged and decreed that the said defendant do further pay to the complainant or her solicitor, the cost ,of this suit to be taxed and also the sum of $750, which is hereby adjudged and decreed to be a reasonable counsel fee for the counsel of said complainant;” and substituting therefore the following clause:
“And it is further ordered, adjudged and decreed that the said defendant do pay to the complainant or her solicitor the costs of this suit to be taxed and also the sum of $750, which is hereby adjudged and decreed to be a reasonable amount to be paid by the defendant toward the complainant’s expenditures and obligations for legal services rendered to her in the preparation and trial of this cause.”

The reason for this application is that the respondent, after having agreed with her solicitor, Mr. Trier, as is said, to pay him the sum of $2,000 for his services in this cause to September, 1934, and a reasonable sum for his services thereafter, has seized upon the peculiar phraseology of this paragraph to deny him all further compensation, contending that by the language of the decree the value of the services rendered by Mr. Trier to her has been expressly adjudicated to be the sum of $750 and he is therefore entitled to no more.

Petitioner concedes that under a literal interpretation of the language used in the decree, his former client’s contention is sound, but he argues quite convincingly, that he prepared the decree and that it was neither his, his client’s, nor the court’s intention that any such limitation be placed upon him in respect to compensation and that simple justice requires that the decree be amended so as to permit him to have the benefit of his contract.

To this argument, Mr. Carl Abruzzese, appearing specially for Mrs. Mavell, I having refused to permit his substitution in place of Mr. Trier while the matter of his compensation is in dispute, raises three technical objections, namely:

1. The petitioner, Mr. Trier, is not a party to the suit and has no standing to seek an amendment or modification of the final decree.

2. The petitioner shows no surprise, fraud, or newly discovered evidence, and therefore, fails to make out a case warranting the reopening and modification of the final decree.

3. Application to reopen and modify a final decree must be by bill of review and not by petition and order to show cause as is attempted in the instant case.

I will take these points up in their order.

The respondent’s argument in support of her first contention is that the petitioner, in his capacity as solicitor, is obviously not a party to the suit in the same sense as the complainant or defendant; that in respect to costs and counsel fees, he is accorded no standing by law because these items are payable not to the solicitor but to his client. Not so. It is true that costs and counsel fees are allowed in right of the litigant, but they are payable to the solicitor.

Vice-Chancellor Backes, in the case of Cicalese v. Fortunato, 92 N. J. Eq. 329 (at p. 330); 112 Atl. Rep. 508, holds that:

“The first question is whether the attorney who recovered the judgment, the fruits of which I am called upon to dispose of, is entitled to be compensated. The cause was litigated before a jury in the circuit court, and on appeal in the supreme court and court of errors and appeals. The taxed costs in the three courts form part of the fund paid into this court. The attorney, of course, is entitled to costs. Phillips v. MacKay, 54 N. J. Law 319. He is also entitled to be compensated for his services under chapter 201, laws of 1914 (P. L. 1914 p. 410), which gives attorneys ‘a lien for compensation upon his client’s cause of action, suit, claim or counter-claim.’ ”

In the very well considered case of Phillips v. MacKay, 54 N. J. L. 319; 23 Atl. Rep. 941, Mr. Justice Garrison, speaking for the supreme court, holds that:

“The attorney of a plaintiff who has recovered a judgment in this court has a claim upon it for the taxable costs and court charges, which is to be preferred to the defendant’s right to off set a judgment held by him against the plaintiff.”

See, also, Pride v. Smalley, 66 N. J. Law 578; 52 Atl. Rep. 955.

It follows that if the court will recognize a solicitor’s right to taxable costs against his client’s innocent creditor, whose rights are usualty preferred, the same protection must be accorded an unpaid solicitor when his right in this regard is challenged by his own client.

In Columbia Insurance Co. v. Artale, 112 N. J. Eq. 505; 164 Atl. Rep. 864, Vice-Chancellor Backes held specifically, that: “Taxed costs are awarded to the client but they belong to the attorney.” Under section 91 of our Chancery act (1 Comp. Stat. p. 445 § ,9)1), “a counsel fee, on order of the chancellor, may be included in the taxed costs and thereupon becomes a part thereof.” McMullin v. Doughty, 68 N. J. Eq. 776; 55 Atl. Rep. 115; affirmed, 68 N. J. Eq. 76; 64 Atl. Rep. 1134.

It is true that a solicitor in a cause is not a party to it in the same sense as a complainant or defendant, but he is a party thereto in his own right, as an ‘unpaid solicitor.’ Ferraro v. City Hall Garage (Court of Errors and Appeals), 94 N. J. Law 209; 109 Atl. Rep. 358.

The respondent’s second contention against the re-opening of the decree, namely that neither surprise, fraud, nor newly discovered evidence is shown, is untenable. These considerations are in nowise involved. The issue is whether the decree as it now stands “gives full expression to the court’s judgment and whether the matter sought to be included therein is such as would without doubt have been incorporated in the decree when made, if attention had been called to it.” The answer is obvious. It was certainly not Mr. Trier’s intention at the time he submitted the decree, to limit its effect so as to deprive himself of just compensation; and most assuredly it was not the purpose of the court to do so. In fact, I recall very distinctly that counsel requested a counsel fee of $2,500. In allowing him the sum of $750, I stated explicitly that he could not expect the defendant in the main cause to fully compensate him for all his services to his client. The counsel fee allowed was to aid her in defraying the expense of litigation and not in full satisfaction thereof; that for the balance of his fee he was required to look to his client. Strong & Sons v. Mundy, 52 N. J. Eq. 833; 31 Atl. Rep. 611; reversing 52 N. J. Eq. 744; 30 Atl. Rep. 322.

The right of this court to amend its enrolled decree when such amendment is necessary to give full expression to its judgment, in a matter which would without doubt have been incorporated therein when made, if attention had been called to it, is too well settled in our equity jurisprudence to be successfully challenged. Lynde v. Lynde, 54 N. J. Eq. 473; 35 Atl. Rep. 641; Lyle v. Staten Island Terra Cotta Lumber Co. (Court of Errors and Appeals), 62 N. J. Eq. 797 (at p. 805); 48 Atl. Rep. 783; Jarmon v. Wiswell, 2k N. J. Eq. 68. The court may, on its own motion, open a decree if in its judgment the ends of justice require it. Morris v. Glaser, 106 N. J. Eq. 585; 151 Atl. Rep. 766.

The third objection raised by the respondent, namely that the petitioner should have initiated these proceedings by bill of review and not by petition and order to show cause, is likewise without merit. Whatever the procedural requirements may have been in ancient days, the modern practice in respect to the opening of a final decree is by petition and order to show cause. Moms v. Glaser, supra; Lynde v. Lynde, supra.

The respondent further questions petitioner’s right to have his compensation fixed by this court and to have a lien therefore impressed upon her alimony, on three grounds. She contends:

1. Petitioner’s claim is unliquidated and the court of chancery lias no jurisdiction to determine the same because the respondent is entitled to a jury trial.

2. Petitioner is not entitled to a lien upon the respondent’s alimony because he has waived any right which he may have had thereto.

3. Alimony is not available for the payment of counsel fees because it is a personal and not a property right.

I see no substance in any of these contentions. This court has repeatedly passed upon the reasonable value of services rendered by a solicitor to his elien in a cause pending herein. In every instance the matter has been adjudicated according to established equity practice by the court without the intervention of a jury. These cases have been assembled by Mr. Justice Parker in Artale v. Columbia Insurance Co., 109 N. J. Law 463 (at p. 465); 162 Atl. Rep. 585 (at p. 586).

A suitor coming into this tribunal submits himself fully to the jurisdiction of the chancellor, for all purposes incident to the matter in controversy. A solicitor’s compensation is an integral part of every such cause and both client and counsel are of right entitled to have any dispute concerning the reasonableness thereof passed upon by this court. It is axiomatic that one who seeks equity must do equity. A suitor who has obtained relief in this court is in equity bound to compensate the solicitor through whose offices his remedy has been obtained. The power of the chancellor has been repeatedly invoked on behalf of clients from whom unconscionable fees have been exacted. There is no reason, either in logic or justice, why a solicitor should not be equally privileged to come into this court and seek its intervention where his client would deal unfairly with him. This court is open to all alike.

When the respondent selected this forum in which to litigate her main cause, she ipso facto acquiesced to our procedural requirements and will not be heard to complain now that our practice is objectionable to her because it does not embrace the use of a jury. In fact, this is the only court in which the petitioner may press his claim. Whatever doubt there majr have been upon this point is set at rest by the case of Simon v. Globe Indemnity Co., 9 N. J. Mis. R. 392; 154 Atl. Rep. 238, which holds that:

“The lien, given to an attorney, counselor-at-law, or solicitor in chancery, under P. L. 1914 p. 410, upon any cause of action, is enforceable by petition to the court in which the original action was brought.”

In this cause the original action was brought in the supreme court. Subsequently the attorney instituted suit in the district court to recover for his services. A nonsuit was entered on tile ground that the action should have been brought in the tribunal where the original action was instituted. The nonsuit was affirmed “per curiam” by our supreme court and the decision was cited with approval by our court of errors and appeals in Artale v. Columbia Insurance Co., 109 N. J. Law 463; 162 Atl. Rep. 585.

Mr. Justice Parker, speaking for the court of errors and appeals in the last named case, holds that:

“Tiie statutory lien of an attorney, solicitor, &e., attached to a cause of action by P. L. 1,911 p. 110, is to be enforced by petition to the same court in which the action has been brought, and to be determined by that court.”

At page 466, in speaking of the summary character of such proceedings, the court has this to say:

* * The Levy Case came up from a court of law and perhaps the opinion should be read in the light of that fact; for the act of 1914 is applicable to courts of equity as well, and expressly provides that The court in which such [main] action * * * is pending, upon the petition of the attorney, solicitor, or counselor-at-law, may determine and enforce the lien.’ This language was treated as mandatory by the supreme court in Simon v. Globe Indemnity Co., 9 N. J. Mis. R. 392; 154 Atl. Rep. 238. Assuming the correctness of that view, then it follows that the statutory lien of a solicitor in a chancery suit must be ascertained and enforced in chanceiy; and presumably according to the usual practice of that court without a jury, as in Cicalese v. Fortunato, 92 N. J. Fq. 329. Eecent eases in which chancery has undertaken to settle the amount of. a lawyer’s charges without a jury apart from the statute now under consideration, are Ramondi v. Bianchi, 100 Id. 448; 102 Id. 254; Sinisi v. Milton, 107 Id. 179, and Grimm v. Franklin, 102 Id. 198; affirmed, 146 Atl. Rep. 914.” * * *

Even apart from the statutory enactment (P. L. 1911 p. 110) this court has original jurisdiction to entertain a solicitor’s petition for compensation. It follows therefore, that irrespective of whether the proceedings are initiated nnder the statute or under the court’s inherent power, the issue will be disposed of according to our established practice, without a jury.

Eespondent contends further against this application that no lien can be accorded petitioner because he has waived any right which he may have had thereto. I am unable to accede to this proposition. I cannot understand precisely -how a solicitor may be said to have waived his lien in a “maintenance action.” Nothing of tangible value ever comes into his possession. Usually he is supplied with a miscellaneous collection of exhibits which after the termination of the suit is of value to no one. In an action of this nature there is absolutely nothing upon which he may impress a lien in the common law sense. A common law lien, of course, is dependent entirely upon possession. A statutory or equitable lien, however, is not. 37 Gorp. Jur. 326 f 36 and cases there cited. This distinction is recognized by our court of errors and appeals in the case of Lanterman v. Luby, 96 N. J. Law 255; 114 Atl. Rep. 325.

Perhaps a great deal of confusion has arisen unnecessarily in respect to this subject because of the use of the word “lien” in respect to the attorney’s claim for compensation. The use of this term immediately conjures up the thought of the old “common law lien.” This, of course, was entirely dependent upon possession. Under a simpler order, perhaps it sufficed. Material was delivered to an artificer. He expended his labor thereon and retained possession of the article until he was paid for his services. This obviously cannot be true in respect to a solicitor’s services. Most often the matters involved in litigation are not susceptible to the solicitor’s possession, i. e., a right of way; the restraint of a nuisance, an injunction, &c. What the solicitor really has is a right to have his claim for compensation passed upon by the court. Our court of errors and appeals adopted this view in Delaney v. Husband, 64 N. J. Law 275; 45 Atl. Rep. 265. Mr. Justice Dickson, speaking for the court (at p. 276), holds:

“* * * So, after a judgment or order for payment of money in favor of his client, he has what is sometimes called a lien thereon for his costs (Braden v. Ward, 13 Vr. 518), which, however, Chiof-Jnstice Cockburn, in Mercer v. Graves, L. R. 7 Q. B. 499, described as ‘only a claim or right to ask for the intervention of the court for his protection, when, having obtained judgment for his client, there is a probability of the client depriving him of his costs.’ ”

In the well considered case of the appeal of Harris et al. (Pa.), 186 Atl. Rep. 92, the Pennsylvania supreme court arrived at an eminently equitable solution of a similar problem by grafting on to the trunk of the common law lien a new shoot, which it terms a “charging lien,” in order to cover a situation where an attorney created a fund which never came into his possession. If we are by precedent and tradition, inescapably bound to use the term “lien” in this connection, perhaps this hybrid created by the courts of our sister state offers as good a solution as any. Irrespective, however, of how the proceedings may be labeled, an unpaid solicitor has an unequivocal right to petition this court to have his compensation for services rendered determined and he is entitled to our aid in securing payment. Where the proceeds of litigation are either in the possession of the court or in that of the solicitor, a lien for the amount due will be impressed directly thereon and satisfaction decreed therefrom, otherwise satisfaction of the award may be had according to the usual practice of this court by means of the writ of fieri facias.

The remaining objection is that “alimony is not available for the payment of counsel fees.” The respondent quotes in support thereof the case of Lynde v. Lynde, supra, wherein Mr. Justice Pitney, speaking for the court of errors and appeals, holds:

“A wife’s claim for an allowance of permanent alimony, on a divorce vinculo, is a purely personal right and not a property right. Alimony to be allowed and paid in futuro, is intended for tire personal benefit and support of the wife, and in its nature is not susceptible of assignment by the wife to another, nor capable of being enjoyed by her in anticipation.
“A contract between a wife and her solicitor, providing that for his services in procuring an allowance of alimony and enforcing its payment he shall receive a share of the alimony recovered, is void not only because the claim for alimony is incapable of assignment, but also because the contract is in contravention of public policy.”

I concede, as of necessity I must, that this is the law of the state, but I fail to see wherein it applies to the case at bar. Alimony in futuro, is a personal right which may not be assigned, encumbered, or bargained away. First, because it is not in being and secondly, because under our cases it is subject to modification or suspension. But once it accrues, such an award assumes an altogether different character. It then comes “into esse.” The recipient is protected in its enjoyment by federal and state constitutional provisions. Upon the wife’s bankruptcy, it passes to the trustee up to the filing of the petition. Subsequent thereto it goes to the wife. It may be reached by creditors in proceedings supplementary to execution. Bolton v. Bolton, 86 N. J. Law 69; 89 Atl. Rep.. 1014; affirmed, 86 N. J. Law 622; 92 Atl. Rep. 389. It does not follow that merely because money comes into a woman’s possession by way of alimony, it is exempted from the payment of just debts. True the court will exercise great circumspection in seeing that one so situated shall not be victimized, but we cannot give sanction to the proposition that such an allowance when it accrues, is sacrosanct; and enjoyable only by the recipient, and beyond the reach of her creditors generally, and her solicitor particularly. Alimony when, if, and as it accrues is as much available for the satisfaction of just debts as any other property. Where an adjudication is made by this court granting an allowance for services to an unpaid solicitor, alimony payments made and being made under one of our decrees will be so controlled as to do substantial equity. The right of both parties will be considered. Our decree may be amended so as to require the husband to pay his alimony in the first instance, to the clerk of this court, who thereupon will deduct therefrom such amount as may be directed and pay the surplus over to the wife. What this deduction shall be must in every case depend upon its circumstances. Where the award is small, necessarily but little will be deducted.

The last contention made by the respondent, namely that contracts between a solicitor and his client for compensation out of alimony payments are void, is without force. In the instant case no claim to a contract for payment out of alimony is alleged by the petitioner. His contention is that he entered into a definite agreement with the respondent under which she was to pay him the sum of $2,000 for services rendered by him to September, 1934, and to pay him a reasonable sum for services to be rendered by him thereafter, the value of which he fixes at $500. Nowhere is the contention made that these payments were to be made out of her alimony award. It is quite conceivable that she was possessed of an independent estate. While the case of Lynde v. Lynde, supra, outlaws agreements between solicitor and client for the compensation of the former on a percentage basis out of alimony, nevertheless, it does not say that alimony payments may not be applied to the satisfaction of an award made to the solicitor for his services. In fact, this is precisely what was done by the court in that case. It directed the payment of the moneys into court by the solicitor and then ordered that therefrom he be allowed a reasonable sum for his services.

The final decree will be opened and amended in accordance with the petitioner’s prayer, with this further proviso, that the counsel fee allowed shall be included in the taxed costs. I will hear Mr. Trier’s application to have his compensation determined by proceedings in accordance with our usual practice. If an allowance is ultimately made to him and he is unable to obtain satisfaction thereof in the usual way, by execution, I will advise an order directing the defendant in the main cause to make his alimony payments to the clerk of this court in the first instance, who will then be directed to deduct therefrom such sum as may be determined by this court, on notice, and pay the balance thereof to the respondent.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. WILLIAM J. PARKS, PLAINTIFF IN ERROR.
    Argued October 6, 1936
    Decided January 30, 1937.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    For the defendant in error, T. Raymond Bazley, prosecutor ; and Charles Frankel, assistant prosecutor.
    For the plaintiff in error, Joseph F. Mattice.

   Per Curiam.

The defendant below is a practicing physician of this state. He was indicted for and convicted of committing an abortion upon a pregnant woman. The review is before us on strict writ of error and also under the one hundred and thirty-sixth section of the Criminal Procedure act. Hine points were presented wherein, as is alleged, the trial court erred.

It is first said that the trial court erred in refusing to allow the defendant his right to open his defense to the jury and that the court further erred in allowing the prosecutor to comment upon the defendant’s failure to open and in the court’s own comment on the defendant’s failure to open. Chapter 288, Pamph. L. 1935, provides that in the trial of criminal causes the defendant or his counsel shall open his case to the jury immediately after the opening by the state and that should the defendant or his counsel elect not to make an opening statement at such time he shall not thereafter he permitted to make any opening statement to the jury. The statute further provides that the prosecutor of the Pleas may in his closing statement to the jury comment on the failure of the defendant or his counsel to make such opening statement and that the judge of the court in his charge to the jury may likewise comment upon the failure of the defendant or his counsel to make such opening statement. The record discloses that defendant’s counsel, though given an opportunity so to do, did not open to the jury at the close of the state’s opening, but on the contrary observed that he would not waive his right to open but would press his right to open at the close of the state’s case. It was at once made clear by the court that that procedure would not be countenanced. The later remarks by the prosecuting attorney in closing and by the court in its charge were fully within the privilege of the statute in such an instance. While the state’s case was in progress the prosecutor moved to amend the date of the offense as nominated in the indictment from the 29th day of February to the 28th day of February, and the court granted the motion. No request for an opening by the defendant was then made. Five state’s witnesses were thereafter examined and cross-examined. At the close of the state’s case defendant’s counsel undertook, as at the beginning of the trial he had wrongfully expressed his intention so to do, to open for the defense and was denied that privilege by the court. We find no error in the court’s ruling.

It is next complained that the court improperly permitted one of the state’s medical witnesses to answer the question, “what did Maude Pfleger say to you?” Tt is enough to observe that the answer actually given to that question was not responsive and was not harmful. After an interval wherein several other questions had been asked the gist of the question was repeated in another form, was not objected to and was answered.

It is further said that the court erred in denying defendant’s motion for a direction of verdict for acquittal at the close of the state’s case and at the close of the entire case. Without undertaking to review the evidence, we express our opinion that there was clearly a case for the jury and that the court consequently did not err in its rulings thereon.

The fourth point is that the trial judge erred in denying a motion for a mistrial after the prosecutor had asked that a defendant’s witness be arrested for perjury and the court had ordered such arrest. The court had not ordered an arrest. The court’s direction was simply that the witness was to remain in the court room until the recess. We find no abuse of discretion in the court’s refusal to order a mistrial in that situation.

It is further alleged that the trial judge erred in not overruling a question asked by the prosecutor of the defendant as to the latter’s reputation. However improper the question, the answer by the defendant was that he did not know what his reputation was; and there the incident ended. We find that no harm came to the defendant therefrom.

Sixthly it is said that the trial court erred in charging the jury on the state’s burden of proof. The court charged the jury:

“The state is charged with the duty in this ease of proving that the defendant is guilty beyond a reasonable doubt. This defendant, the same as any other defendant in any other criminal case, is presumed to be innocent unless the state proves beyond a reasonable doubt that he is guilty. What do we mean by reasonable doubt ? I will give you the definition that has been laid down by the highest court in this state. It is a term which is difficult to define; however, it is easily understood. The state is charged with the duty of proving beyond a reasonable doubt that the defendant is guilty. Here is the definition of the term 'reasonable doubt:’ 'It is not a mere possible doubt, because everjffhing relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the turtle of the charge. The evidence must establish the truth of the fact to a moral certainty, and satisfies the reason and judgment of those who are bound to act conscientiously upon it.’ But if, after carefully considering the evidence, giving the accused the benefit of reasonable doubt, you are led to the conclusion that he is guilty, you should so declare by your verdict.”

We find no fault in that charge. The sentence to which the appellant calls attention is to be read and understood in the light of the very full charge which we have just quoted. It is not contradictory thereof and could have caused, we think, no confusion in the minds of the jury. The same observation applies to the appellant’s ninth point.

Under point 7 appellant complains that the trial judge erred in thus charging the jury: “If the jury finds a witness lying as to a material fact, they may, if they see fit, disregard the entire testimony of that witness and hold it as valueless.” The primary definition of the verb “lie” as given in Webster’s How International Dictionary is “to utter falsehood with intention to deceive.” Given that interpretation we find no error in the charge, particularly when coupled with the earlier language charged by the court on the same subject as follows:

“There is one other principle of law to which I would like to call your attention. That is that if you ladies and gentlemen of the jury believe that a witness knowingly and willfully testified falsely as to any material fact in the case, you have the right to disregard any other testimony that that person may give, or give such weight to that testimony as you think it is entitled to. You had an opportunity of observing the witnesses.”

The question presented under the eighth point is answered by our disposition of the point just considered.

We find no reversible error. The judgment below will be affirmed.


text:
    WILLIAM D. BALDWIN ET AL., PROSECUTORS, v. CITY OF EAST ORANGE ET AL., DEFENDANTS.
    Argued January 20, 1937
    Decided January 28, 1937.
    Before Justices Parker, Lloyd and Donges.
    Por the prosecutors, Norman B. Grobert.

    Por the defendants, Walter G. Ellis.

   Per Curiam.

The application appears to be for a mandamus to require the issuance of a permit for a gasoline and service station in the acute angle between Greenwood avenue and Worth Wineteenth street, East Orange: or in the alternative, as we gather from the brief and argument, a certiorari to the refusal of the local authorities to issue such permit.

We are advised that the late Chief Justice Gummere, who died early in 1933, was asked to intervene as regards this property and refused to do so: and it is stated in the brief that three applications, different somewhat in detail, but similar in essentials, have been sucessively denied by Mr. Justice Parker at chambers, and, so far as appears, without further application to this court. Those applications were made by other counsel, but their merits, or demerits, were substantially the same. We are unable to perceive any good reason for taking a different course at this time, and think it advisable to place our refusal on record with the foregoing recital of its antecedents.

The applications are denied, with costs.


text:
    BARNET LUBINSKY, PROSECUTOR, v. COURT OF COMMON PLEAS OF PASSAIC COUNTY, BENJAMIN MARKOWITZ AND ANNA MARKOWITZ, RESPONDENTS.
    Argued October 8, 1936
    Decided February 6, 1937.
    Before Justices Parker and Lloyd.
    For the prosecutor, Biro & Stroll.

    For the respondents, Cole & Morrill (Maurice Levinthal, of counsel).
   Per Curiam.

The certiorari was allowed in this case to test the validity of certain proceedings on a claim of property under an execution issued out of the Supreme Court. These proceedings resulted in a verdict and judgment for the claimant.

There are twenty-two reasons presented as grounds for reversal. Most of these alleged reasons are insufficient in form to bring any judicial action legally before the court. Those that adequately justify consideration are that the Court of Common Pleas was without jurisdiction to try the issue, that the necessary steps under the statute were not taken, and that on the trial of the case the judge erred in directing a verdict in favor of the claimant.

None of these reasons appear to us to be well founded.

As to jurisdiction the contention is that the judgment out of which the execution was issued was obtained in the Supreme Court and that the trial of the claim of property-purports to have been “at a Court of Common Pleas.” Section 32 of the Execution act (2 Gomp. Statp. 2255), provides that when claim of property is made for goods levied upon by execution by any person other than the defendant, the claimant may apply to one of the judges of the Court of Common Pleas where the goods and chattels were seized for a venire to summon a jury of twelve men to try the right of the claimant to the property.

Steps were taken in accordance with this provision by the claimant in proper time and the judge of the Court of Common Pleas proceeded (it is true some months later), to try the issue with the result already stated. The fact that the trial was at a Court of Common Pleas, whatever that may mean, can have no disqualifying effect upon the trial otherwise strictly in accordance with the act, nor can the fact that the result of the trial seems to have been recorded in the office of the clerk of the Common Pleas Court. Nor is there substance in the contention that the trial was long delayed. The statute placed the control of the litigation in the hands of the judicial officer named. The claimant could do no more than present the matter to him in proper time and the subsequent trial was at the discretion of that officer.

On the merits of the case, our examination of the evidence satisfies us that the trial judge properly directed a verdict in favor of the claimant. The testimony as to ownership was all in his favor and the circumstances which the prosecutor claims to be suspicious and to the contrary were not sufficient to justify submission of the case to the jury.

The judgment is affirmed, with costs.


author: Vannaman, Acting Judge.

text:
    Second District Court of Paterson.
    MORRIS PLAN COMPANY OF NEW YORK, PLAINTIFF, v. CECIL SPENCER ASHDOWN, DEFENDANT.
    Decided February 6, 1937.
    Por the petitioner, Max Weberman and Milton Shamach.

    Por the respondent, pro se, Louis Ogust.

   Vannaman, Acting Judge.

Petitioner is a sergeant-at-arms of the Second District Court of Paterson. Kespondent is the attorney for the Morris Plan Company of New York, plaintiff, in a suit against Cecil Spencer Ashdown, defendant. On April 26th, 1934, judgment was entered against the defendant for $472.86 and costs. Pursuant to the judgment and on June 29th, 1934, a garnishment was issued directed against the wages of the defendant in the hands of his employer, the Haberland Manufacturing Company. Upon levying the wage execution it was learned that the said employer had been served previously with another garnishment against the wages of the defendant and therefore no payments were to ho made until the prior judgment was discharged. Before the plaintiff’s levy became operative the defendant discontinued in the employ of the garnishee.

On January 20th, 1935, the defendant sent the respondent the following letter (Exhibit l)-&) :

“l wish to advise you that ! am no longer in the employ of the Haberland Mfg. Co., Inc., of Alwood, H. J.

It is my impression that the prior garnishee against my salary has been almost completely satisfied but, I am making a cheek on this.

My present connection is with H. B. Richardson & Co., Certified Public Accountants, 131 Pennington Avenue, Passaic, N. J. My salary is $35.00 per week. Since your judgment will be the only one outstanding against me, I would appreciate your doing me the courtesy of permitting me to remit direct to you the sum of $14.00 every four weeks. It would save me some embarrassment if you do not serve your garnishee on my present connection.

If the arrangement as suggested is satisfactory to you will you please advise me.”

On August 24th, 1936, the respondent sent the defendant the following letter (Exhibit P-1) :

“The amount of the judgment against you, together with costs, is $513.15, on which there is due interest of $52.50 together with the dollarage of the Constable on the garnishee execution of $25.00, making a total of $591.01.
I have received from you, including payment received to-day, $287.00, leaving a balance of $304.01 together with additional interest on the judgment.”

Thereafter negotiations were had between the respondent and the defendant for a lump sum settlement. During the negotiations the respondent advised the defendant’s counsel as follows (Exhibit P-6) :

“Replying to your letter of October 7th, please be advised that the balance due on this judgment is $304.00, which includes interest to date, supplementary proceedings costs and Constable’s fees on garnishee, etc.”

Finally on November 16th, 1936, the balance due ($304.00) was settled for $275.00.

Throughout the negotiations the fee of the constable was included as an item in the computations for arriving at a settlement. I find, as a matter of fact, that the settlement included the constable’s fee.

The petitioner seeks to recover the dollarage fee. The respondent contends that the petitioner is not entitled to recover because (1) the garnishment never became effective, (2) the petitioner never collected any money, (3) the garnishment became ineffective before the settlement was made.

A constable in the District Court is entitled to five per cent, "on every dollar collected on execution or any order.” District Court act, section 216. 2 Comp. Stat., p. 2019. A sergeant-at-arms has "ail the rights, privileges, powers and duties of a constable.” District Court act, section 11. 2 Comp. Stat., p. 1956, § 11. An execution out of the District Court remains in force for one year from the date of its issuance. District Court act, section 195. 2 Comp. Slat., p. 2010, § 195. Wage executions, however, become a continuing levy "until said execution and the expenses are fully satisfied.” District Court act, section 201. 2 Comp. Stat., p. 2911, § 201.

The plaintiff had control of the garnishment proceedings and if ho so desired he might have had them dismissed. 28 Corp. Jur. 366, § 583. In the case at hand a valid and effective levy against the wages of the defendant was made by the petitioner; only its operation was suspended by virtue of a prior execution.

In Sturges v. Lackawanna, &c., 27 N. J. L. 424 (at p. 426), the court held :

"Having taken the necessary measures to levy upon and secure the property, it would be unjust to deprive him of all compensation.
“The service and risk are put upon the sheriff, for his own benefit, and the statute has provided for his compensation.
“It is of no consequence to the sheriff how the matter is arranged between the plaintiff and the defendant. If anything is done between them, by which a sale is rendered unnecessary, that must be considered a settlement within the meaning of the act. The execution is then settled without a sale; its operation is suspended by the act of the parties; the sheriff can proceed upon it no further, unless it may be to make his own costs; and he becomes entitled to the allowance provided by the statute.”

In Daly v. Ely, 53 N. J. Eq. 270; 31 Atl. Rep. 396, in an opinion by Vice-Chancellor Pitney, it was held (at p. 274) :

"The property in this case was duly and fully advertised for sale; but as soon as the defendant heard of the advertisement he appeared at the sheriff’s office and paid the execution, thereby stopping the sale; and he now contends that although the sheriff has done all the work required by the statute to be done in the way of advertising in order to earn the fee of $3.50, he is yet not entitled to receive it unless, in point of fact, he does actually attend in person or by deputy in pursuance of the advertisement.
“I do not think that construction is the proper and fair one. The proviso was intended to prevent the sheriff from charging the fee where he advertises and then of his own accord voluntarily abandons the sale and pays no attention to it. It ought not to be construed as giving the defendant the power to permit the sheriff to incur the labor and trouble of advertising, and then come in and pay the debt and thereby prevent the sheriff from receiving the fee given by the statute. Such construction ought not to be adopted unless it is unavoidable.
“I think the sheriff is entitled to that fee.”

Under Sheriffs and Constables, 57 Corp. Jur. 1108, § 1145, the author says that:

“The sheriff is not entitled to any commissions on money paid to a judgment creditor before execution is issued; and even after execution is issued payment to, or settlement or compromise with the execution creditor before the execution is served or levied defeats the sheriff’s right to commissions. Except in some jurisdictions, however, if a debt is compromised or settled between the parties after the levy of an execution the sheriff is entitled to his fees or commissions, and in order to make the same he may sell so much as is necessary of the property levied on. The general rule in such cases is that the sheriff shall receive the same compensation as though the service begun had been actually consummated. So, also, where the debt is settled between the parties after the service or levy of an attachment, the sheriff is entitled to commissions at the rate allowed on executions, on the value of the property attached * * *. In order to entitle the sheriff to compensation on the ground that the debt has been settled, although the money has not passed through his hands, it is necessary that the debt should be paid by or for defendant. Where the amount of an execution is paid by the debtor to the execution plaintiff after the return day of the writ, the sheriff is not entitled to commissions, the money not being made by him.
:¡í s¡< ' %
“Statutory Fees For Services Rendered. A settlement between the parties cannot deprive the sheriff of his right to the statutory fees for the servicies actually rendered by him.”

And in that same work, 57 Corp. Jur. 1117, § 1167 (cf. note 26-A), the author says:

“A sheriff is entitled to compensation for levying and returning an execution; but the rule is not applicable unless the sheriff has made an actual levy on property belonging to defendant, and, according to some authorities, unless the levy made was valid.” See, also, section 1169 (cf. note 40) and eases thereunder.

Although the decisions are by no means harmonious the rule seems to be that if a valid and subsisting levy is made, the allowance of the constable’s fees depends on whether or not the levy was an effective canse in producing payment of the judgment or a settlement. 57 Corp. Jur., tit. "Sheriff and Constable ” 1120, &c., § 1176, and notes thereunder. In view of the broad language of the decisions in our state (S(.urges v. Lackawanna, supra; Daly v. Ely supra), and the fact that the garnishment was the inducing and effective cause which impelled the defendant to seek adjustment and ultimate settlement, the court is inclined to allow the constable’s fee.

Further, the respondent is estopped to deny the dollarage fee. His letters and conversations indicate that he at all times recognized and admitted that the fee was due and owing to the petitioner. In view of his office, his present position is untenable. 6 Corp. Jur., tit. “Attorney and Client,” 568, § 10; In re Young, 75 N. J. L. 83; 67 Atl. Rep. 717.

The amount of the judgment plus costs was $513.51. $29.01 was allowed the defendant in settlement. The constable’s fee is $24.22 which is five per cent, of $484.50.

The rule will be made absolute and an order will be entered to that effect.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FANNY GRADY, PETITIONER, v. NEVINS CHURCH PRESS COMPANY, RESPONDENT.
    Decided December 15, 1936.
    For the petitioner, Joseph M. Kiell (David Roskein, of counsel).
    For the respondent, Clarence B. Tippett (Newton H. Porter, of counsel).
   % ❖ . ❖ $ ❖ £ ❖ It is admitted that on the day in question, February 21st, 1936, the petitioner, while on her way to work for the respondent, sustained an accident, when she slipped and fell on ice that accumulated on a driveway adjacent to the employer’s factory building.

* * * , * * * Immediately adjacent to the said plant and on the premises of the respondent, there is located a concrete driveway, which is used for the purpose of ingress and egress of the respondent’s trucks and vehicles of others having business with the respondent. This concrete driveway extends beyond the sidewalk and on to the curb so that the vehicles may enter into and upon the public highway.

The petitioner’s regular working hours were from eight a. m. to five p. m. It was customary, however, for the petitioner and certain of her fellow employes to report early and durmg the period immediately preceding eight o’clock, she was accustomed to clean her dies, read her newspaper and gossip with her fellow employes. This had been her practice in both good weather and bad and was known to the respondent, and continued without objection from it.

On the morning in question, the petitioner arrived at the premises of the respondent shortly prior to seven-thirty A. m., and while in the act of proceeding across the concrete driveway, slipped and fell on the ice that had accumulated thereon. As a result of the fall, it is admitted that the petitioner received a Potts fracture of the right ankle. The sole question for decision is whether or not the accident which the petitioner so sustained, arose out of and in the course of her employment with the respondent.

As a general rule, an employe injured while going to or from his work to his home, or while in the use of the public highway used by the public generally, does not come within the protection of the Workmen’s Compensation act. It is ordinarily held that if an employe is injured on the premises of his employer while going to or from his work, he is entitled to compensation for such injuries. Honnold Workmen's Compensation (3d ed.) 473, and authorities therein cited. The emplojur is not limited to the exact moment when the workman reaches the place where he begins his work or the moment lie ceases that work. It necessarily includes a reasonable amount oí time and space before and after ceasing actual employment, having in mind all the circumstances connected with the said accident. Terlecki v. Strauss, 85 N. J. L. 454; 89 Atl. Rep. 1023; affirmed (Court of Errors and Appeals), 80 N. J. L. 708; 92 Atl. Rep. 1087. I believe that the greater weight of the authority appears to be to the effect that if an employe meets with an accident on the premises of the employer, either going to or from his work, i. e., entering or leaving the premises within a reasonable time, the accident would be held to arise out of the employment. The entering or leaving of the premises where one is employed is so closely connected with his employment as to render it a necessary incident thereto. The courts have repeatedly held that the terms “work” and “employment” are not synonymous. As was said by Mr. Justice Swayze in Terlecki v. Strauss, supra:

“It would be entirely too narrow a construction to limit the benefit of the statute to the time the workman is actually employed at his machine. He must have time to reach his machine and to get away from his employer’s premises. In fact, it is a necessary implication of the contract of the employer that the workman shall come to his work and leave with reasonable speed when the work is over.”

In the case of Meucci v. Gallatin Coal Co., 279 Pa. 184; 123 Atl. Rep. 766, the court held that the word “premises” as appearing in the Compensation act, does not include all property owned by the employer, but does embrace that used in connection with the actual place of work where the employer carries on the business in which the employe is engaged. To like effect is the case of Northwestern Fuel Co v. Industrial Com., 197 Wis. 48; 221 N. W. Rep. 396. In each of these cases the emploj^e was injured upon a public road which went through the employer’s plant or works, and the defense was made that the employe was not within the Compensation act because the injury occurred in a public road. That court held that made no difference, as the road was used in connection with the place of work where the employer carried on the business in which the employe was engaged. Gillette v. Rochester Co., 224 A. D. (N. Y.) 319. See Essex County Country Club v. Chapman (Supreme Court), 113 N. J. L. 182; 173 Atl. Rep. 591.

It is academic that an owner of land owns the same to the center line of the street. However, the public has an easement to walk over the sidewalk in front of the said premises. The proofs here show that the petitioner sustained her injury by slipping on the concrete apron (driveway) immediately adjacent to defendant’s plant, and while on her way to report for duty and just before entering the factory building for the purpose of discharging her customary duties. Having constructed such driveway, as a necessary adjunct to its business, the respondent thus exercised a greater enjoyment and use of this strip than that set aside for sidewalk purposes in general, notwithstanding the public easement over both. The driveway was used not only by the public generally in passing, but as one of the entrances to the respondent’s place of business by its customers and its employes as well. Not only this, but the respondent made use of it for other purposes in connection with its business. In fact, it constructed and used the driveway for the purpose of permitting its trucks and vehicles of those with whom it had business relations to enter upon the same and on to the premises of the respondent.

To say that the fall of the petitioner on the driveway of the employer was so disassociated from the premises proper as to take her out of the benefits of the Compensation act would be placing too narrow a construction on this liberal legislation. A concrete driveway immediately adjacent to the employer’s plant and part of the employer’s premises used by the employer for the passage of its trucks was so connected with the business in which the employe was engaged as to form a component part of it. It was immediately adjacent to the entrance of the factory proper. The fact that it formed a part of a sidewalk over which the general public had an easement does not in my opinion place the petitioner in a legal position different than if she had fallen on her employer’s premises over which the public had no easement.

The soundness of this rule is well established upon a line of cases of which Cudahy Co. v. Parramore, 263 U. S. 418; 44 S. Ct. 153; 68 L. Ed. 366; 30 A. L. R. 532, and Bountiful Brick Co. v. Giles, 276 U. S. 154; 48 S. Ct. 221, 222; 72 L. Ed. 507, 509; 66 A. L. R. 1402, are typical. In the last cited ease the Supreme Court of the United States, by Mr. Justice Sutherland, said: “* * * And employment includes not only the actual doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done. If the employe be injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer’s premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer’s premises, the injury is one arising out of and in the course of the employment as much as though it had happened while the employe was engaged in his work at the place of its performance. In other words, the employment-may begin in point of time before the work is entered upon and in point of space before the place where the work is to be done is reached. Probably, as a general rule, employment may be said to begin when the employe reaches the entrance to the employer’s premises where the work is to be done; but it is clear that in some cases the rule extends to include adjacent premises used by the employe as a means of ingress and egress with the express or implied consent of the employer. Id., Cudahy Co. v. Parramore, 263 U. S. (at p. 426); 44 S. Ct. 153. And see, generally, Procarccino v. E. Horton & Sons, 95 Conn. 408; 111 Atl. Rep. 594; Merlino v. Connecticut Quarries Co., 93 Conn. 57; 104 Atl. Rep. 396; Corvi v. Stiles and R. Brick Co., 103 Conn. 449; 130 Atl. Rep. 674; Starr Piano Co. v. Industrial Accident Commission, 181 Cal. 433, 436-438; 184 Pac. Rev. 860; Sundine’s Case, 218 Mass. 1, 4; 105 N. E. Rep. 433; L. R. A. 1916A, 318 (5 N. C. C. A. 616).”

I therefore feel that the accident which the petitioner sustained on February 21st, 1936, arose out of and in the course of petitioner’s employment with the respondent, and in accordance with the stipulation of counsel, order that judgment be entered in fayor of the petitioner and against the respondent. $$$$$$$

John J. Stahl, Deputy Commissioner.


author: Peb Cueiam.

text:
    ROE REALTY COMPANY, A CORPORATION, PLAINTIFF-RESPONDENT, v. SULZBACHER GRANGER & COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Argued January 20, 1937
    Decided February 5, 1937.
    Before Justices Trenchard, Bodine and Heher.
    For the defendant-appellant, Collins & Corbin (Edward A. Markley and John F. Leonard).

    For the plaintiff-respondent, Edward De Sevo and James A. McTague.

   Peb Cueiam.

The plaintiff recovered a judgment in an action brought on a verbal contract for commissions for obtaining a renewal of a lease of part of the premises situate at 910 Bergen avenue, Jersey Oitj', New Jersey. The case was tried in the District Court without a jury. The errors argued are the refusal of the trial court to nonsuit the plaintiff or direct a verdict in favor of the defendant.

“It is fundamental in the District Court act, made so by express provision, that on an appeal such as this, findings of fact on conflicting evidence wll not be reviewed, and conversely, that the judgment will be reversed for factual insufficiency where there is no legal evidence to support it.” Pollack v. New Jersey Bell Telephone Co., 116 N. J. L. 30; 181 Atl. Rep. 318.

From our examination of the proofs, we are satisfied that there was legal evidence to support the findings of the District Court. That there was conflicting evidence furnishes no ' basis for review.

The judgment is affirmed.


text:
    Olin Fisk Gleason, petitioner, v. Talva Lenore Gleason, defendant.
    [Submitted January 29th, 1936.
    Decided January 29th, 1936.]
    Note — This case was affirmed by a per euriam opinion in the court of errors and appeals, reported in 121 N. J. Eq. 251.

      Mr. Andrew Foulds, Jr., for the petitioner.

      Mr. George M. Margolis, for the defondant-counterelaimant.
   Grosman, A. M.

Petitioner sues for divorce on the ground of desertion. Defendant, by an original bill of complaint, seeks separate maintenance for herself and two minor children, on like grounds. The causes have been consolidated and the bill of complaint treated as a counter-claim.

The parties were married on the 28th day of April, 1918. Two children were born of the union, Eobert Olin Gleason, age thirteen, and Talva June Gleason, age eleven. These people cohabited until about March, 1932, when the defendant was stricken with ulcers, probably an incident to childbirth. She suffered from this ailment until about January, 1933, when her physician discharged her as cured. He had previously recommended that she abstain from marital intercourse while suffering from her ailment. They continued to live together under the same roof until the 1st day of July, 1933, when the petitioner left the defendant under the following circumstances: About June, 1933, the petitioner began feeling the effects of the depression. His salary, which had been $40 or $45 per week, plus expenses, was reduced to $35' per week. The defendant wife, realizing that the family could not continue living on the same scale as formerly, suggested to the petitioner that they move to cheaper quarters, but he refused. Shortly thereafter it was mutually agreed that the petitioner might better himself financially were he to quit his employment in New York and engage in business for himself in Connecticut. This he did. The wife offered to go with him but he suggested that she stay in Hewark, reasoning that it would be better for the children to remain in the school they had been attending; and further that there was no sense in her moving up there with him until his business was established. Keluctantly she complied with his wishes. Tor some months he commuted week-ends between his home and his business in Connecticut. Gradually his visits became more irregular. In the month of April, 1933, he was home over night but twice. In June, 1933, his visit was limited to but a few minutes. He became very disagreeable and nothing pleased him. In February, 1933, he arbitrarily told the defendant that she was to go to his mother’s home to live there with the children. The defendant objected to this, telling him that she was willing to live in one room if need be rather than live with her mother-in-law. He remained obdurate in his insistment. She refused to do as the petitioner requested. In March, 1933, the petitioner, without more ado, demanded that the defendant divorce him, and suggested that he would go to Connecticut; that she could refuse to accompany him and thus lay the basis for a divorce action. This she refused to do insisting that she was willing to go with him to Connecticut. He refused to have her do so. In April, 1933, the defendant removed a number of letters and photographs from the petitioner’s pocket. These missives had been addressed to him by a young woman named Margaret McLain, a resident of Hartford, Connecticut. They indicated that the petitioner and Margaret McLain were on intimate terms, at least sufficiently so to concern themselves with the relative speed with which divorces may be obtained in the States of Connecticut and New Jersey, and she cautions him that though presently he may feel indifferent about seeing his children, time may alter his views. Petitioner demanded the return of these letters and was very much put out both because the defendant had taken them in the first instance and also because she refused his demand for their return. A few days later he again demanded that the defendant divorce him, offering to pay all expenses. This time the request was made in the presence of a neighbor, Mrs. Edna B. Ott, who corroborates the defendant’s story. In May, 1933, the petitioner again brought up the subject of a divorce and requested the defendant to procure one through his lawyers. She, however, insisted that if she was to consult counsel she desired one of her own selection. The petitioner then submitted to her in writing (Exhibit D-,3), terms upon which the divorce was to be obtained. Petitioner appears to have been quite chagrined over the defendant’s refusal to divorce him. Finally the landlord served her with a notice to vacate her home for non-payment of rent. She spoke to the petitioner about this but he fold her that he could not do anything about the matter as he had no money. This was untrue because shortly thereafter the petitioner’s bank statement came into her possession and it disclosed that he had on deposit $141. The defendant repeatedly requested the petitioner to take her and the children with him to Connecticut, offering to live in most modest quarters so long as she was mistress of her own home. He refused to countenance this proposal, insisting that she go to live with his mother. He admits that his insistment in this connection was not based upon inability to support the defendant but because he desired to curtail expenses. On July 1st, 1933, their home was dismantled. The petitioner took some of the furniture to his mother’s home. The defendant and her children went to live with her brother in New Brunswick. Prom this time on the petitioner manifested no interest whatever either in his wife or children. During the summer and winter of 1933, he sent the defendant for her maintenance and that of their two minor children, the munificent sum of $25. Pive dollars per month for the three summer months and $10 for the entire winter. He admits that during this period his income was about $50 per week. In December, 1933, the defendant went to Hartford, Connecticut, and appealed to the petitioner to send her something more for the children, but he told her that he could give her no assurances. She also appealed to Margaret McLain, but to no avail.

I am thoroughly satisfied that the petitioner was absolutely insincere in offering his wife a home with his mother. He knew that the relationship between these two was unfriendly, if not hostile. He had the means to support the defendant modestly elsewhere. She offered to have him do so but he refused. It is a wife’s duty, of course, to go with her husband wherever he may establish his home, but his offer must be made in good faith. He is not privileged to deliberately select a place of residence so distasteful to his wife that she cannot be happy therein. She is entitled to a home in which she alone is mistress. It may of necessity be nothing more than a hovel on the edge of a swamp and she is in duty bound to go there but it is her privilege to be mistress thereof. Fraser v. Fraser, 87 N. J. Eq. 633; 101 Atl. Rep. 58.

I am convinced that the petitioner in offering his wife a home with his mother did so with full knowledge that she would not go there and - for the purpose only of having her leave him. As stated by Vice-Chancellor Backes in Mountford v. Mountford, 94 N. J. Eq. 627 (at p. 628); 120 Atl. Rep. 634.: “He schemed to that end, and succeeded.” This fact coupled with his interest in another woman and his unquestionable desire to be divorced leads me to conclude that he has failed to sustain the allegations of his petition. He is guilty of having deserted his wife and children without justification. The petition will be dismissed, and I will advise a decree of separate maintenance on the counter-claim.

The defendant’s present admitted income is $50 or $60 per week, less expenses. He places his expenditures at an inordinately high figure. I think he is exaggerating in this respect. In 1934 he purchased an Oldsmobile car for approximately $800. He still owes $200 thereon. This furnishes some indication of his true income. Eight hundred dollar cars are not purchased on net incomes of $5 per week. I will allow $10 per week alimony and a counsel fee of $100. The children will remain with the mother.