author: Berry, Y. C.

text:
    Atlantic Highlands Building and Loan Association, complainant, v. Thomas F. Kelly et al., defendants.
    [Decided April 20th, 1937.]

      Messrs. Snyder, Roberts ■& Pillsbury, for the complainant.

      Mr. William Eenig (Mr. L. Stanley Ford, of counsel), for the defendant Heating and Plumbing Finance Corporation.
   Berry, Y. C.

This is a mortgage foreclosure proceeding in which Heating and Plumbing Finance Corporation was made a party defendant by reason of a conditional sales agreement covering certain heating equipment installed in the mortgaged premises, and also by reason of a judgment which it held against the owners of the realty. The real estate mortgage was recorded prior to the execution of the conditional sales agreement. The named defendant in its answer denies the priority of complainant’s mortgage over the conditional sales agreement and by counter-claim seeks a decree requiring complainant to deliver to it the heating equipment in question.

Complainant’s answer to the counter-claim is three-fold; first, that the chattels were so annexed to the realty as to become part thereof and unseverable without material injury to the freehold; second, that any reservation of title to the chattels was ineffective as to complainant, which had not expressly assented to such reservation; and third, that by reason of the entry of a judgment against the defendant Kelly, any right in the counter-claimant to retake the goods was terminated and it thereafter was limited to recovery upon the judgment. Counsel for complainant has expressly waived the first two points, leaving but one question to be determined.

Under section 24 of the Uniform Conditional Sales act (2 Cum. Supp. Comp. Stai. p. 3136) the mere entry of judgment, with nothing more, does not deprive the conditional vendor of his right to retake the goods. However, complainant contends that under the 1930 supplement to the Conditional Sales act (P. L. 1930 ch. 132; Cum. Supp. Comp. Slat. 1930 p. 1649) the reserved right to repossess is automatically terminated upon the entry of a judgment. The answer to this contention is that the supplement expressly limits its application to the entry of judgment “on bond and warrant;” and the judgment here involved, it is stipulated, was based upon a promissory note. It is further stipulated that no steps have been taken, by way of execution or otherwise, to collect on the judgment. The 1930 supplement being a limitation upon pre-existing rights and remedies, its provisions cannot be extended to cover situations clearly beyond the limits of its plain language. Especially is this so where the language of the restrictive statute is in particular, rather thau general, terms.

Why the holder of a judgment based upon a certain kind of written instrument should not have the same remedies accorded other judgment creditors (assuming all of them to be conditional vendors) is not clearly apparent. Perhaps no distinction was intended. Perhaps the supplement is but another example of legislation enacted to provide for a particular situation. But that is the concern of the legislature and not of this court. In any event, the intent of the legislature must be gathered from the language used, and that here involved permits of but one application, viz.: to judgments entered upon bond and warrant.

There will he a decree for counter-claimant.


source: Caselaw Access Project

author: Buchanan, Y. O.

license: Public Domain

text:
    In the matter of the New Jersey Fidelity and Plate Glass Insurance Company, in liquidation.
    [Decided April 16th, 1937.]

      Mr. John Milton, for the commissioner of banking and insurance of ‘New Jersey.

      Mr. Collin Minion and Messrs. Burnett & Trelease, for certain creditors.
   Buchanan, Y. O.

The commissioner-liquidator of the above named company filed petition asking inter alia the instruction of the court as to certain questions arising in regard to the administration of this trust. Notice thereof, and opportunity to be heard thereon, was given to all parties in interest, by order to show cause made on December 3d, 1936, in which the several questions aforesaid were set forth. Hearings have been duly had thereon, and briefs submitted. In only one instance, and as to only one question (hereinafter referred to) were any views submitted to this court in conflict with the views submitted by counsel for the petitioner.

Consideration of the several questions leads to the conclusions hereinafter set forth.

A. As to the Rights of Creditors in Statutory Deposits.

1. Securities of the par value of $364,000, deposited by the company, were held by the commissioner of banking and insurance (as such, and not as liquidator) at the time he took over the affairs of the company; were by him sold and converted into cash; the cash fund thereby realized and now held by him amounted to $382,560.40 (possibly somewhat increased by interest subsequently earned thereon).

The controverted question hereinbefore referred to, was whether or not these securities constituted a special trust fund for the benefit of policy holders; counsel for several creditors who admittedly were not “policy holders,” contended that there was no sufficient evidence to justify such a finding. The result of the entire evidence on this point however seems convincing beyond question that the securities did constitute such a special trust fund.

Section 8 of the Insurance act required the deposit by the company of securities aggregating $50,000 and authorized the commissioner to require deposits up to the amount of $100,000. Section 10 of the act provides that the commissioner shall hold the securities so deposited “for the benefit and security of all the policy holders of the company depositing the same.” They constitute a special trust fund as security for the claims of policy holders, — Aetna, &c., Co. v. International, &c., Co., 117 N. J. Eq. 190; 175 Atl. Rep. 114.

There is no direct evidence contemporaneous with the deposit of any of the securities in question showing the specific direction or purpose of the company in making deposit thereof. The certificate of the commissioner, issued to the company December 31st, 1930 (seventeen months before the liquidation commenced) is that he then had in his custody, and registered (payable to) in his name as commissioner, securities aggregating $369,000 par value, the property of the company and held by him “in trust for all the policy holders of said company in accordance with the provisions of the statute (of New Jersey) in such case made and provided.” This in itself evidences or constitutes a declaration of trust by the commissioner; it also (because of the acquiescence and lack of dissent by the company thereto) evidences that the company deposited them upon such trust. The evidence further shows that the company, by its annual statement for the year 1931, (shortly before liquidation) set forth the fact that it had then on deposit with the commissioner, “held for the protection of all the policy holders of the company,” $364,000 par value of securities, and had no other deposit with the commissioner; and the evidence of the special deputy commissioner and also of the assistant treasurer of the company shows that all of the $364,000 par value of securities held by the commissioner at the time he took over, were all registered (with the several companies who issued the securities), in his name as commissioner “in trust for policy holders of New Jersey Fidelity and Plate Glass Insurance Company.” The only pertinent provisions of the New Jersey statute “in such case made and provided” (as mentioned in the commissioner’s certificate referred to above), are sections 8 and 10 of the Insurance act already mentioned, and sections 22 and 23 thereof. These latter provide that the commissioner may receive a deposit “of such securities as shall be necessary to enable such (insurance) company to transact business in any other state * * * under the laws thereof.”

The evidence shows that the company did do business in many other states, and it is quite possible therefore that the deposit by it of securities over and above the $100,000 mentioned in section 8, may have been made under section 22. Assuming this to be so, there is no evidence that the laws of such other states imposed any different trust or character upon such deposited securities than that provided by the law of this state; and in that case the presumption would, be that there was no such different provision, — that it was the same as that of this state.

Taking the other possibility, — that they were not deposited under section 22, — they must then be deemed to have been deposited under section 8.

The fact that section 8 only authorizes the commissioner to require deposit up to $100,000 in nowise precludes the company from depositing a greater amount.

Finally, it seems controlling that the securities were in fact deposited with, and held by the commissioner in trust for the security of all the policy holders of the company. This trust the company could create irrespective of the statutory provisions; and this it did create; and it existed at the commencement of liquidation. The securities therefore were held on that trust; the same trust of course attached to the proceeds of sale, — the trust res in changed form; and still attaches thereto.

2. This trust fund is held in trust primarily and preferentially as security for those creditors of the company who are “policy holders” of the company. They are first entitled to be paid therefrom the amounts of their several claims; and since the aggregate of such claims, allowed as valid, greatly exceeds the fund, it is not necessary to consider the secondary rights of any other parties therein.

3.. This trust fund should be administered as a separate trust fund, separate and apart from the general assets of the estate.

4. As to what creditors are “policy holders:”

(a) The claims of creditors based on policies held by them insuring against the risks of automobile liability, property damage, collision damage, workmen’s compensation, public liability, burglary and plate glass are claims coming within the class for which this trust fund is security. So also are claims for return premiums in respect to such policies; they are obviously claims of policy holders, and based on the contract provisions of the policies. The same is true as to such claims by assignees of the policy holders; they are still the claims of policy holders, notwithstanding they have been assigned to assignees, — and the assignees stand in the place and stead of the original policy holders.

(b) The claims of injured third persons, based on the provisions of liability policies and of the statutes giving such third persons the right of direct suit against the company thereon, also come within the class secured by this trust fund. From an equitable standpoint these claims are claims based on the policy contracts, — claims for the performance of the contract to indemnify the insured, by paying (or otherwise procuring the discharge of) liabilities incurred by the insured and-covered by the policy. The statutory provisions subrogate the third persons to the rights of the policy holders; and to deny the third party claimants the benefit of this trust fund in the right of the policy holder would be to subvert the legislative purpose and contravene the public policy thereby clearly indicated.

(c) Claims filed by agents of the company who have paid claims on behalf of the company, for reimbursement for such payments, are not claims of policy holders nor based on the policy contract; they are based on a different contract, express or implied, for such repayment. Of course where such agents have taken assignments from the policy holders and their claims are based thereon, they come within the class referred to in paragraph (a) above.

(d) Claims for payment for services by agents, attorneys, physicians, adjusters and the like and for payment for merchandise and supplies of various kinds, are obviously not claims of policy holders, notwithstanding such services or property may have been supplied to or for the company in, and for the purpose of, the performance by the company of its policy-contract obligations.

(e) Claims by other insurance companies based on contracts of re-insurance. These are of two kinds, — one by companies whose direct liability on policies issued by them was re-insured by Fidelity; the other by companies who re-insured fidelity’s direct liability on policies issued by it. The first group are not entitled to share in this special trust fund; this was specifically decided in Aetna v. International, supra. That opinion further indicated also that the second group would not be entitled to share therein, unless perhaps by virtue of some right of subrogation. No claim of any such right by subrogation has been advanced by any such re-insurer in this proceeding; and it is deemed that any such re-insurer would have no rights in this special trust fund arising simply from the contract of re-insurance, whether by way of subrogation or otherwise. This is for the reasons set forth in the Aetna case, as to the character of such re-insurer as a “partner” rather than a policy holder. Essentially the agreement between the companies in regard to these re-insurance is that of participation, — a sharing between or among them of the premiums and the losses involved in the policy issued to the actual policy holder. The position of such re-insuring company is therefore that of an insurer, not an insured; and indeed the claim of such re-insurer is obviously based on no policy of fidelity held by the re-insurer,- — it is based on some such participation contract. If the re-insurer has paid, or is called upon to pay, losses to the holder of fidelity’s policy, it can have no subrogation to the rights of the policy holder against fidelity, even if it takes an assignment from the policy holder, because by virtue of the participation agreement between the companies it was intended and agreed that the liability for such payment was assumed by the re-insuring company, and that there should be no recourse over against fidelity by the re-insurer; and the consideration for that assumption of sole liability was its share of the premiums. If in any instance such re-insurer did not receive its share of the premiums, its claim is obviously a claim for such premiums based on the participation agreement and not on the policy held by the assured.

(f) Claims by the holders of fidelity and surety bonds issued by the company, whether for breaches of the bonds or for return premiums, are entitled to share as policy holders in the special trust fund, — similarly to claimants mentioned in paragraph (a) above. See the Aetna case, supra.

(g) Claims by sureties on bonds issued by the company as principal, are not claims of policy holders, and not entitled to share in the fund. These claims are claims based on agreements, express or implied, to reimburse the surety, — not on policies of insurance. Whether or not such claims, if made on the basis of assignments taken from the obligees of the bonds, would be entitled to share in the fund, would depend on the nature of the agreement between Fidelity and such surety, — whether it was or was not an agreement to share the risk, (similar to the re-insurance contracts mentioned in paragraph (e) above).

(h) Claims by holders of the company’s bonds guaranteeing payment of principal and interest of real estate bond and mortgage obligations of third party obligors, would seem clearly to fall in the class of “policy holder” claims entitled to share in the special trust fund. So also as to the claims of holders of the company’s guaranties of notes of third parties. It seems immaterial that these guaranties are in the form of endorsements upon the notes instead of in the form of a special bond or insurance policy. It is the substance, not the form, which must control; and so considered these claims are claims of “policy holders.”

5. Since the aggregate amount of claims of “policy holders” allowed as valid claims, is greatly in excess of the amount of the special trust fund, the claimants entitled to share in such fund must share therein pro rata, — all receiving the same percentage of their respective claims. The statute gives no preferential right to any class of policy holders; neither does the trust agreement or declaration; and no claim has been made by any party for any such preference.

6. The policy holders who receive partial payment of their claims out of this special trust fund will be entitled to prove, maintain and receive payment out of the general assets of the company on the basis of claims for the net amount remaining due them after deducting from their original claims the respective amounts received from the special trust fund (or from any other special security they may have). Butler v. Commonwealth Tobacco Co., 74 N. J. Eq. 423.

A dividend of ten per cent, has already been paid out of the general assets of the company, to all creditors whose claims have been allowed as valid, on the basis of the total amount of their respective claims. In the case of creditors who are entitled to share in the special trust fund, adjustment should be made by the liquidator in the course of future distribution, to conform to the rule above stated.

7. Ho other creditors are entitled to rights in this special trust fund ahead of the pro rata rights of the policy holders. Ho such claim has been made by any creditor, nor any facts presented which would warrant any other conclusion. Of course the cost and expense of the actual liquidation and administration of this particular fund as such, must first be paid out of the fund, and the distribution to policy holders based on the net balance of the fund thereafter remaining.

8. Ho preference should be given, in the distribution of this trust fund, or any portion thereof, to policy holders of this or any other state. Ho contrary claim is made by any creditor; and no facts are shown which would warrant any different conclusion. Of. the discussion in paragraph 1 hereof.

9. The special trust fund is chargeable with the particular expenses of its own administration, as stated in paragraph 7 hereof, but is not- chargeable with any share of the expense of administration of the general assets. This is particularly true, since in the instant case the value of the general assets has increased during the liquidation period, by an amount in excess of the expense of administration of such general assets.

10. New York policy holders are entitled to share in the special trust fund pari passu with New Jersey and all other policy holders; and the determination of the New York liquidator as to which creditors are such policy holders and entitled so to share, is binding upon the New Jersey commissioner-liquidator. This is the effect of the contract between the New York and the New Jersey liquidators, approved by the courts of both states. The same thing is true as to the claims of creditors from Pennsylvania and Minnesota. Ho contrary contention is made by any party.


author: Pee Curiam.

text:
    J. W. FERGUSON COMPANY, PROSECUTOR, v. WILLIAM SEAMAN AND THE COURT OF COMMON PLEAS OF MERCER COUNTY, RESPONDENTS.
    Argued January 19, 1937
    Decided April 27, 1937.
    Before Justices Pabkeb, Lloyd and Donges.
    For the prosecutor, Merritt Lane.

    For the respondents, George Pellettieri.

   Pee Curiam.

This is a -workmen’s compensation case. While the language of the petition might be susceptible of an attempt to review a prior finding by the court, it was treated in the court below by both prosecutor and respondents as one for increased disability, and as such an increased award was allowed to the claimant. With the finding on that phase of the case our examination leads us to conclude that it was justified by the proofs.

The various legal contentions raised by the prosecutor we think have all been answered in the negative by the decisions of this court. Tucker v. Beltramo, Inc., 117 N. J. L. 72; 186 Atl. Rep. 821; McLaughlin v. Hahne, 113 N. J. L. 32; 172 Atl. Rep. 566; Ecken v. O’Brien, 115 N. J. L. 33; 178 Atl. Rep. 373; affirmed, 116 N. J. L. 94; 183 Atl. Rep. 273.

The judgment is affirmed, with costs.


author: Per Curiam.

text:
    THE BOARD OF EDUCATION OF THE BOROUGH OF SEASIDE HEIGHTS, PROSECUTOR, v. ISAIAH A. SHEPHERD AND STATE BOARD OF EDUCATION OF THE STATE OF NEW JERSEY, RESPONDENTS.
    Argued January 19, 1937
    Decided April 27, 1937.
    Before Justices Parker, Lloyd and Donges.
    Por the prosecutor, Francis Tanner.

    Por the respondents, Ira F. Smith.

   Per Curiam.

This case presents the claim of Isaiah A. Shepherd to the office of school janitor. The board of education appeals from an order of the state board of education directing Shepherd’s reinstatement.

The claim is that Shepherd was appointed for a definite term; that he violated a rule of the board; that his salary was reduced and he refused to accept office thereunder, and finally that he was guilty of such neglect of duty as to justify his dismissal for cause.

Under the proofs Shepherd was holding by an indefinite term and protected by the Civil Service law.

As to the dismissal for cause. The charge was failure to be on his joh one afternoon during school hours in violation of a new rule adopted by the board. Of this rule Shepherd was not apprised.

We think the proofs did not justify dismissal and the judgment will be affirmed, with costs.


author: Lawrence, C. C. J.

text:
    Monmouth County Circuit Court.
    HARRY E. NEWMAN, TRUSTEE IN BANKRUPTCY OF THE ESTATE OF KALMAN B. MOHAL, PLAINTIFF, v. ASBURY PARK AND OCEAN GROVE BANK, A BANKING CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided March 27, 1937.
    For the plaintiff, Bernard Freedman.

    For the defendant, Lester O. Leonard.

   Lawrence, C. C. J.

This suit was submitted to the court without a jury. The facts covered by stipulation and found from evidence received at the trial may be stated as follows: On August 27th, 1930, plaintiff was appointed trustee in bankruptcy of the estate of Kalman B. Mohal by the United States District Court for the district of Kew Jersey.

Defendant is a banking corporation, organized in 1889, under the statutes of the state then applicable. It engaged in the usual business of a state bank and continued to do so until December 24th, 1931, when, because of frozen assets and other reasons affecting its financial stability, within the recognized definition of insolvency, and therefore unable to carry on its normal functions in safety to depositors, creditors and stockholders, it was closed by direction of the commissioner of banking and insurance who placed an agent in charge for the purpose of liquidation.

At the time it was closed, and for some time prior, the bank was, by appointment of the Federal District Court, a depository for funds of bankrupt estates. On the date of closing plaintiff had on deposit with the institution the sum of $10,018.50. It is conceded that the relation of plaintiff to the bank was that of a creditor and that he had no preferential status.

Between December 24th, 1931, and January 12th, 1933, the process of liquidation went on, and, on the latter date, the commissioner of banking and insurance paid to plaintiff a dividend of $500.93. During the period, certain stockholders and creditors, including depositors, made efforts to have the bank reopened, and, on May 1st, 1933, it was reorganized and reopened, pursuant to the provisions of “An act concerning banks, trust companies and savings banks having shares of capital stock,” approved April 12th, 1933, known as chapter 116 of the session laws (N. J. Stat. Annual 1933, § 17-74), as amended by chapters 195 and 287 (N. J. Stat. Annual 1933, §§ 17-79, 80), under a plan approved by the commissioner, having been first determined by him to be fair and equitable to all depositors, other creditors and stockholders and in the public interest. It was consented to by those representing more than seventy-five per cent, of the total deposits and other liabilities as shown on the books, and by stockholders owning more than two-thirds of the shares of stock.

The plan provided for an amendment of the bank’s original charter to allow the issue of thirty thousand shares of preferred stock, to be held in trust for depositors and other creditors in amounts constituting liabilities at the time the bank was closed by the commissioner, until its liability to each should be paid in full, with cumulative dividends at the rate of one-tenth of one per cent, per annum. The trustee of this stock to have exclusive voting power. Plaintiff did not consent or object to the plan. It does not appear, however, that any formal notice of it was ever sent him.

The bank’s original charter was accordingly amended to provide for the issue of the preferred stock, which was duly issued and the proportionate share or interest of plaintiff therein was included, credited to him and is now held by the trustee. On the date indicated, the commissioner withdrew, turning the institution over to a new board of directors with a new staff of officers and it has since carried on its normal functions and conducted its regular business under its original charter amended as stated.

The plan by which the bank reorganized and under which it reopened, with the approval of the commissioner, among other things, contained a condition that there should be no preference among creditors (inter sese) and that the general creditors to whom the institution was liable prior to the reopening should not be entitled to a preference over like claimants. Notwithstanding, on August 21st, 1933, plaintiff presented to defendant, at its banking house, a check signed by him, countersigned by a referee in bankruptcy of the District Court and drawn to his (plaintiff’s) order for $4,547.55, and demanded payment. It was refused by the bank on the ground that ho had not become a depositor since the bank had reopened, but remained subject to the conditions of the plan approved by the banking commissioner, even though not consenting to it, since section 8 of the act of 1933, as amended (supra) provides that in any reorganization which shall have been approved and shall have become effective as provided, all depositors and other creditors and stockholders, whether or not they shall have consented to such plan shall be fully and in all respects subject to and bound by its provisions, and claims of all depositors and other creditors shall be treated as if they had consented to such plan of reorganization.

The amount of the check presented by plaintiff and of which he demanded payment was arrived at in the following manner: On March 4th, 1916, the defendant bank as principal and American Surety Company as surety entered into a bond with the United States of America in the sum of $10,000. This bond was filed with the clerk of the District Court and was given as required by an order of the court designating the bank as a depository of funds of bankrupt estates deposited by receivers and trustees. The bond was conditioned for the repayment of such moneys. A proceeding was instituted in the District Court on the bond, after the bank was closed, and, on March 28th, 1932, an order was entered directing the surety company to pay to the clerk the penalty of the bond, which it did. As provided in the order the clerk thereupon distributed the proceeds among the several receivers and trustees in bankruptcy who had deposits with the bank when it was closed. The distributive share received by plaintiff was $4,970.02, which, with the dividend of $500.93 paid him by the commissioner while the bank was in his custody in liquidation, reduced plaintiff’s claim to $4,547.55, the amount of the check, payment of which was refused by the bank when presented and for which he seeks a recovery, with interest, in the present suit.

In the order of the District Court directing a distribution of the proceeds of the surety company’s bond to the receivers and trustees in question, it was provided that the company should be subrogated to the rights of such receivers and trustees against the defendant, its liquidators, successors and assigns, to this extent; if and when any dividend or dividends are paid, such sums as would, with the sum paid under the order, affect the return to the receivers and trustees of the full amount of their deposits, with interest; and, second, all sums paid on such dividends or in repayment of the deposits in excess of the sum required to make them whole, should be paid to the surety company on account of and to the extent of the repayment of the $10,000 paid by it to the clerk of the District Court.

It may be said in passing that while subrogation is provided for in protection of the interest of the surety company, there is nothing in the order in that respect which militates against plaintiff maintaining the present suit, since it does not involve the amount paid by the surety company and that part thereof received by plaintiff as a proportionate share of the proceeds of its bond. The amount, for which recovery is here sought, is the balance of the original deposit in which the surety company is not concerned and as to which it has no right of subrogation.

The practical ground advanced in behalf of plaintiff involving his alleged right to recover from the defendant at this time the balance of his deposit rests on the theory that since the bank has reopened under its original charter as amended, he should now be regarded as an ordinary depositor of the same class as those now having checking accounts with the institution, who have become such since the bank reopened and resumed its normal functions and regular business.

In other words, the court is urged to ignore the period when the bank was closed, in the custody of the commissioner and in process of liquidation before reorganization, and regard plaintiff’s relation to the institution as not altered or changed, but the same as it was at its inception when he had the right to check against his account.

It seems hardly necessary to say that the theory thus advanced is not tenable. Plaintiff has not the rights of a present day depositor or creditor. His relation to the bank was obviously altered by the liquidation undertaken by the commissioner and his right to have had that liquidation carried through to a finality, which he now claims, was suspended by the authorized reorganization under the statute {supra) and the issue of preferred stock for the benefit of the original depositors and other creditors, including plaintiff, which stock may ultimately be retired when the bank shall have paid in full, through the medium of dividends to be first earned and paid on the stock, to the exclusion of the common stockholders.

In this way the liquidation originally undertaken by the commissioner is proceeding, but under the auspices of the new management, with a reopened bank, doubtless to the advantage of plaintiff and the other depositors in his class, in that it may result in their receiving the full amount of their claims, instead of limited dividends occasioned by a sacrifice of assets under forced liquidation.

It is further urged in support of the theory upon which plaintiff seeks recovery here that he was not bound by the plan approved by the commissioner under which the bank reopened, since he did not consent to it and the statute of 1933, under which it was brought about, especially section 8 is unconstitutional, citing article I, of the federal constitution, section 10 inhibiting state laws impairing the obligation of contracts, and paragraph 3, section 7, article 4 of the state constitution to the same effect and prohibiting the legislature from passing laws depriving a party of a remedy for enforcing a contract existing when it was made.

While counsel for plaintiff refers to Moore v. Splitdorf Electrical Co., 114 N. J. Eq. 358; 168 Atl. Rep. 741, and a number of other cases in this and other states as authority for the contention, they are not found applicable here, as it is not to be overlooked that banks such as defendant are affected with a public interest and are gwasi-public institutions, as was pointed out in In re Mechanics Trust Co., 119 N. J. Eq. 141; 181 Atl. Rep. 423, and in which the statute and amendments here considered were declared constitutional under the police power of the state, and a number of cases thought to support that holding are digested. See, also, Orifice v. Elizabeth Trust Co., 116 N. J. L. 110; 183 Atl. Rep. 192, in which the statute is discussed without criticism as to any supposed constitutional infirmity.

It may be said, moreover, that if the act be declared unconstitutional, plaintiff would occupy the anomalous position of now requiring a liquidation of the assets and liabilities of the bank as they were when it was closed by the commissioner, in order that he may obtain such dividends as he would have been entitled to had such liquidation been carried through and the institution put out of existence. That this could not be done now seems apparent. Public policy would require that it should not be permitted at this late day. Plaintiff will still receive his dividends as they are earned by the bank, perhaps not so soon as in case of liquidation, but ultimately in all probability in a larger amount, if not, indeed, in full, which would, of course, be to his advantage.

It is, however, urged that if plaintiff cannot have his right to recover through liquidation, he should be permitted to receive the full amount of his claim at this time as an ordinary depositor of the bank. It seems unnecesasry to state that he is not legally entitled to such a remedy. This would give him a preference over the original depositors and creditors to which he was not at any time entitled and is not now.

The conclusion is that, under the evidence submitted, plaintiff has not shown a right to recover and that, for the reasons heretofore indicated, a judgment of no cause should be entered.


author: Brogan, Chief Justice.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOSEPH AUGUSTINE, PLAINTIFF IN ERROR.
    Argued October 6, 1936
    Decided April 17, 1937.
    Before Bbogan, Chief Justice, and Justices Case and Peesjeie.
    For the defendant in error, Erwin E. Marshall, prosecutor of the Pleas of Mercer county (Augustine V. Gribbin, of counsel).
    For the plaintiff in error, Alexander Budson and Herman II. Levy (Henry M. Hartmann, of counsel).
    For the state as amicus curice, David T. Wilentz, attorney-general, and Harry A. Walsh, assistant attorney-general.
   Brogan, Chief Justice.

This writ of error brings up for review the conviction of the plaintiff in error, Joseph Augustine, on two indictments, charging violations of the Motor Fuel Tax act, chapter 319, Pamph. L. 1935. N. J. Stat. Annual 1935, §§ 208.B-101 et seq. The first indictment charged Augustine with unlawfully failing to make a report to the state tax commissioner on or before the last business day of November, 1935, of the number of gallons of motor fuel sold and used in the state during the month of October, 1935, by the plaintiff in error as a distributor, and the second indictment charged him with unlawfully failing to pay the amount of tax due on the motor fuel sold and used by him as a distributor during the same month.

The case is before us on a strict writ of error, and of the various assignments 'of error filed three points are presented in support of a reversal of the judgment below — (1) that the indictments are invalid; (2) that the two violations of the statute charged constitute but a single offense; (3) that the provisions of chapter 287 of the laws of 1935 (N. J. Sial. Annual 1935, 53-lla) under which the jury was empaneled, is unconstitutional and void.

Under the first point three propositions are advanced which will be considered in the order in which they are presented.

It is first argued that so much of section 301 (N. J. Slat. Annual 1935, § 208B-301) of the statute, sufra, defining distributor, in so far as importers are concerned, represents an excess of legislative power. The argument is that the section does violence to the fourteenth amendment of the federal constitution and the commerce clause thereof.

A distributor is defined in the statute as follows (N. J. Stat. Annual 1935, § 208B-103) :

“ ‘Distributor’ shall mean and include every person, firm, association or corporation, wherever resident or located, who imports or causes to be imported into this state fuels as herein defined, for use, distribution or sale after the same shall reach this state, whether in the original packages or containers in which it is imported or otherwise; and also any person, firm, association or corporation who produces, refines, manufactures, blends or compounds, or causes to be produced, refined, manufactured, blended, or compounded fuels as herein defined and sells, uses or distributes the same within this state.”

If we understand the argument of the plaintiff in error, it means this and only this: Within the definition of the term “distributor” there is included any person, firm or corporation who imports motor fuel into this state for use, distribntion or sale after the same shall reach the state, and a second class also, namely, those who manufacture or cause to be produced motor fuels, who sell, use or distribute the same within the state. The argument is that a duty of making a report is imposed by the statute upon those of the first class, namely, importers, who make sale of the motor fuel even though the same is sold to a purchaser outside of the slate, while that same duty of making a report and paying tax is imposed upon a distributor who manufactures, refines, &c., such fuel in the state only when such distributor sells, uses or distributes the same within the stale. An examination of the entire statute dispels any idea as to inequality or discrimination between these two classes of distributors.

Turning to article 3 of the statute, sections 301 to 313 (N. J. Siai. Annual 1935, §§ 208B-301, 313), inclusive, we find set out, with great particularity, the requirements of the state as to all persons who engage in the motor fuel business as distributors, and this includes importers as well as manufacturers. Such persons must procure a license and post a bond, the amount to be fixed by proper authority; they are required to keep records of all fuel sold or used and it is necessary to make a monthly inventory and on or before the last business day of each month (section 311) distributors are required to render a report to the state tax commissioner, stating the number of gallons of fuel sold or used in this state by the distributor during the preceding calendar month; * * * A tax of 3c. per gallon on each gallon so reported shall be paid by each distributor, the payment to accompany the filing of the report. * * * The next section of the statute (312) seems to dispose of the argument of the plaintiff in error charging inequality between the two classes of distributors. It reads as follows: “Neither this act nor any of the provisions hereof shall apply to fuel when exported or sold for exportation from the State of New Jersey to any other state or country, but every distributor shall be required to report such exports and sales to the commissioner * * It is readily perceived therefore that this provision exempts the distributor, whether he be classed as an importer or as a manufacturer, from paying a tax upon motor fuels exported out of the State of New Jersey. It relieves neither class of distributor, however, from reporting such export sale. The power to tax, which is admitted, necessarily includes this essential power of regulation. If we were to analyze the definition of the term “distributor” (section '301, supra), separate and apart from the remainder of the statute, there might be ground to support an argument for discrimination, but when read with the balance of the statute, as indeed it must be read, no real discrimination exists. Steel v. Freeholders of Passaic, 89 N. J. L. 609; 99 Atl. Rep. 318; Pondelick v. County of Passaic et al., 111 N. J. L. 187; 168 Atl. Rep. 146. This first point is without merit.

The second point made under this heading is that the indictment for failure to pay the tax is insufficient on its face because it does not aver that the motor fuel, upon which it is charged the tax was not paid, was sold within the State of New Jersey. The plaintiff in error may properly raise this question. A motion to quash was duly made before the jury was sworn. Mead v. State, 53 N. J. L. 601.

The indictment is for an offense created by the statute itself (section 1001). N. J. Stat. Annual 1935, § 208B-1001. Here the offense in the indictment is charged in the words of the statute. That is usually sufficient. Where the statute specifically sets out what act shall constitute the crime, it is, as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter. 2 Bish. Cr. Pro., § 611; 1 Id. 612; State v. Thatcher, 35 N. J. L. 445; State v. Halsted, 39 Id. 402, 410. These cases emphatically enunciate the rule that in indictments for misdemeanor, created by statute, it is sufficient, to charge the offense in the words of the statute. But the plaintiff in error argues that the averment that the sale of the motor fuel was made within the state is necessary in order to have a valid indictment. In other words, if the sale was made for export, or for use outside the state, failure to pay tax on the fuel thus sold would be within the excepted class (section 312, supra). Such an averment that the sale was made within the state is not necessary to the validity of the indictment. If, as a matter of fact, the fuel was sold outside of the state, that is a matter of defense. (Compare Mayer v. State, 63 N. J. L. 35; affirmed, 64 Id. 323; 45 Atl. Rep. 624; State v. Price, 71 N. J. L. 249; 58 Atl. Rep. 1015; State v. Reilly, 88 N. J. L. 104; 95 Atl. Rep. 1005.) The rule is stated by a highly regarded authority on criminal practice and pleading — “but in an indictment on the statute it is not necessary to aver that the defendant is not within the benefit of a proviso in it, even in cases where the statute in its purview especially notices the proviso, as by saying that none shall do the thing prohibited, otherwise than in such special cases as are mentioned in this act, or the like.” 1 Archibald’s Crim. Prac. & PI. (7th ed.) 287.

The case before us is similar in principle to that involved in Mayer v. Stale, supra,, where the statute regulating the practice of medicine and surgery, &e., was under consideration. ■ Pamph. L. 1894, ch. CCCYI, p. 454; 3 Comp. Slat., p. 3329.

The third point argued under this heading is that this same indictment is defective because it fails to set forth a state of facts from which the court can conclude that the defendant failed to pay the tax as herein provided. We are in doubt as to whether or not we understand the argument under this point. It does, however, seem reasonably clear that the statute provides that any person within the purview of the act, who fails “to pay the tax as herein provided,” i. e., in accordance with the statutory provision that taxes shall be due and owing the state on all motor fuel sold by a distributor within the State of New Jersey, shall be guilty of a misdemeanor. The indictment, therefore, charging that the plaintiff in error did unlawfully fail to pay the said tax, and stated in the words of the statute, is not defective.

Under the next general heading it is argued that the indictment of the defendant on two separate charges is “equivalent to splitting a single cause of action.” As we understand the argument, it is that failure to report plus failure to pay the tax due make out but a single offense. We do not so view the statute. Section 1001, supra, provides that “any person * * * failing to pay the tax as herein provided or violating any of the provisions of article 3 of this act * * * shall be guilty of a misdemeanor.” In other words, the statute provides particularly that anyone failing to pay tax shall be guilty of a misdemeanor and also that anyone violating any of the provisions of article III, supra, — failure to render a report is in violation of this article (311) — shall likewise be guilty of a misdemeanor. They are separate and distinct requirements. The state charged and proved a violation of each requirement.

Pinally, it is argued that chapter 287, laws of 1935, supra, prescribing procedure for empanelling a jury, is defective and unconstitutional. The statute has been held constitutional by our court of last resort. State v. Dolbow et al., 117 N. J. L. 560; 189 Atl. Rep. 915.

The judgment is affirmed.


text:
    HYMAN STROMBERG ET AL., PROSECUTORS, v. CITY OF CAMDEN ET AL., DEFENDANTS.
    Argued April 21, 1937
    Decided April 23, 1937.
    Before Justices Parker, Lloyd and Donges.
    Por the prosecutors, Carl Kisselnan, Anthony J. Siracusa and Merritt Lane.

      For the defendants, Firmin Michel.

   Per Curiam.

A writ of certiorari will be allowed, but on terms that it be returnable at the opening day of the May term, 1937, of this court, the case noticed for argument and be orally argued at said term, and in default thereof the writ to be dismissed unless then otherwise ordered bj the court.

No depositions appear to be necessary, and the complete record has been printed and was submitted to the court on this motion.


author: John G. Wegnek, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELIZABETH DALTON, ADMINISTRATRIX OF THE ESTATE OF JOHN McAVOY, DECEASED, PETITIONER, v. R. B. DAVIS COMPANY, RESPONDENT.
    For the petitioner, John J. Hoffman.

    For the respondent, Edward E. Kuebler.

   ^ H*

A petition was filed by the petitioner as administratrix of the estate of John McAvoy, deceased, in which petition it was alleged that the decedent, John McAvoy, was employed by the R. B. Davis Company on January 18th, 1921; that while so employed the decedent was carrying sheet tin which accidently slipped, cutting all his fingers of the right hand, and causing an infection to set in, resulting in the amputation of the fourth finger of the right hand. It was also alleged that an informal hearing was held on April 21st, 1921, at which time the petitioner was awarded temporary disability consisting of four weeks and two days, amounting to $52, and permanent disability to the extent of fifteen weeks, amounting to $180, making a total compensation payment of $232.

It was also alleged that the decedent, John McAvoy, died on July 3d, 1930, and that unpaid drafts for the above permanent disability were found among his effects on or about Eovember 1st, 1936.

The petitioner, as administratrix of the estate of John McAvoy, in the petition, seeks payment of the sum of $232, with interest from April 21st, 1921.

To this petition an answer was filed by the respondent, in which the respondent denied the accident, notice, causal relationship and disability, and further contended that the petition filed herein was not filed within time prescribed by statute and that the workmen’s compensation bureau of the department of labor was without jurisdiction in the matter.

The matter came on for hearing before me, a referee of the workmen’s compensation bureau, on April 6th, 1937, at the court room in Jersey City, at which time a motion was made, for and on behalf of the respondent, to dismiss the petition on the ground that it had not been filed within the time prescribed by statute, and that this court was without jurisdiction in the matter.

After argument by counsel for the petitioner and counsel for the respondent, I am of the opinion that the petition was not filed within the time prescribed by statute, and that this court is without jurisdiction to hear the matter.

It is, therefore, on this 20th day of April, 1937, ordered that the petition filed in the above entitled matter, be and is hereby dismissed.

John G. Wegnek, Referee.


author: Pee Ctjeiam.

text:
    JAMES S. CAHILL, PETITIONER, v. FRANKLIN TRUST COMPANY, RESPONDENT-PROSECUTOR.
    Submitted January 19, 1937
    Decided April 21, 1937.
    Before Justices Parker, Lloyd and Donges.
    Por the prosecutor, Alexander Avidan.

    Por the petitioner, Maurice A. Kaltz (John W. Griggs, of counsel).
   Pee Ctjeiam.

This is a workmen’s compensation case. Apart from a minor matter of practice, presently to be disposed of, the question before us is simply whether the disability, fully proved and not substantially denied, arose from an accident which occurred in the course of the employment.

Petitioner was a night watchman at the building of the defendant trust company. He was afflicted with diabetes, though apparently he did not know it at the time of the accident to which he testified. His story was that on the night in question he had a callous area on a toe of the right foot, and while he was making one of his rounds he stubbed that toe against the foot of a chair which lacked a caster and ivhich condition had caused the chair to be set aside; that at once he felt acute pain in the toe, which increased in the course of the. night; that prior to this the toe had caused some pain, hut very little, and had not interfered with his work. He stayed out his time, and when the superintendent of the building came in at six-thirty A. m., petitioner was seated in a chair with his coat and hat on, and according to the superintendent’s testimony, “had an awful pain in his foot. He couldn’t stand on it,” but “hobbled to the corner” where the bus stopped, and so went home. The evidence shows that after home treatment he was taken to the hospital dispensary and reported to the doctor there that he had “bunked [the foot] against a chair.” Petitioner went home, but returned to the hospital two days later. The hospital physician suspected diabetes, and ezamination of the urine confirmed that suspicion. At the time of the petitioner’s return, there were signs of incipient gangrene. Prom this point the case progressed to an amputation of the leg below the knee.

A petition was filed in due course, and the case was tried before a deputy commissioner, who made an award of temporary disability up to that time, reserving the matter of permanent disability to await ultimate results of the amputation and later treatment. Prom this point the record as laid before us seems somewhat confused, but there appears to have been' an appeal to the Pleas and an affirmance or dismissal in that court. The printed case does not show it, but there was a rule to show cause for a certiorari, which was before us as case No. 239 of the May term, 1936, and was continued for the term. The rule was argued at the October term (No. 215) and writ allowed. By this time there had been a second award, embracing the permanent disability, and an appeal of this to the Pleas and affirmance therein. All this has come before us at the present January term, and is ripe for decision.

On the general merits, the bureau and the Common Pleas both found that an accident in the course of the employment and arising out of it, was a substantial contributing cause of an indubitable temporary and permanent disability. Our independent ezamination of the evidence leads us to the same result. As to the stubbing of the toe, the testimony of petitioner could be contradicted onfy by inference if at all, and is corroborated in a measure by his declarations to a physician for the purpose of medical treatment. And the inference was entirely reasonable, from the testimony, that this accident aroused a diabetic tendency to gangrene from a traumatic cause.

As to the state of the record, the claim is that there is a double judgment to which prosecutor should not be subjected. As we read the record, the temporary earlier award is merged in the second and final award. We conclude that the second judgment in the Pleas on appeal, embracing both temporary and fina] disability, should be affirmed, with directions to mould the record there in such wise as to show on the face of things that the earlier award is merged in the later one. Pule may be entered accordingly.


author: Pee Cttbiam.

text:
    HUDSON TRANSIT CORPORATION, A CORPORATION, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS OF NEW JERSEY, RESPONDENT.
    Submitted January 18, 1937
    Decided April 27, 1937.
    Before Justices Pabkee, Lloyd and Donges.
    Por the prosecutor, Ellenstein & O’Brien.

    Por the respondent, John A. Bernhard.

   Pee Cttbiam.

The respondent, the board of public utility commissioners of ISFew Jerse_y, having requested the return of the record in this proceeding in order that it might rescind its action heretofore taken, and no objection being made thereto, the record is accordingly returned. If no action shall be taken by the board within twenty days, the record may again be forwarded to this court for the determination of the issues involved in the proceeding herein pending at this time.


author: Pee Cueiam.

text:
    GEORGE BOYETTE, PLAINTIFF-APPELLANT, v. UNITED STATES SAVINGS BANK, A CORPORATION, DEFENDANT-RESPONDENT.
    Argued May 4, 1937
    Decided May 17, 1937.
    Before Justices Lloyd, Case and Donges.
    Por the plaintiff-appellant, Geoffrey H. Towle.

    Por the defendant-respondent, George L. Sachs and William K. Flanagan.

   Pee Cueiam.

Plaintiff appeals from a judgment in favor of the defendant entered in the Second District Court of the city of Newark by the judge of that court, sitting without a jury, following a trial in which plaintiff and defendant had submitted their several factual proofs.

The action was to recover damages for personal injury sustained by the plaintiff as a result of being struck by a mass of snow as he was walking along the highway. Plaintiff was the single witness in his own behalf. He testified to facts from which it might be inferred but was not demonstrated that the snow fell from some portion of the defendant’s building. He also testified that he did not in fact know where it came from. It was within the fact-finding power of the judge to determine that the plaintiff had not proved that the snow came from the defendant’s premises. If it be assumed that the snow did fall from the defendant’s building, the next question is whether defendant had done or failed to do something whereby lie became chargeable. The contention of the plaintiff in this respect was that the snow had fallen because of the improper construction of the cornice on defendant’s building. That was a controverted question of fact inasmuch as there was expert testimony introduced by the defendant to the effect that the construction was proper, normal and standard.

The findings of fact by the trial judge are supported by the evidence and therefore are not reviewable on appeal. Lapayowker v. Levitzky, 102 N. J. L. 164; 130 Atl. Rep. 627. Further, the specification of determinations failed to point out the precise judicial action complained of, and the appeal therefore presents no point for the consideration of this court. Booth v. Keegan, 108 N. J. L. 538; 159 Atl. Rep. 402.

The judgment below will be affirmed.


text:
    EVELYN V. WELLS, PLAINTIFF-APPELLANT, v. THE CITIZENS NATIONAL BANK OF COLLINGSWOOD, DEFENDANT-RESPONDENT.
    Submitted January term, 1937
    Decided May 12, 1937.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    For the plaintiff-appellant, Walter S. Keown.

    For the defendant-respondent, Carroll •& Taylor (Walter R. Carroll, of counsel).
   Brogan, Chief Justice.

The trial court ordered a non-suit at the end of the plaintiff’s case and the plaintiff appeals from such judgment.

The testimony offered in support of the plaintiff’s claim for money damages, for personal injuries suffered by her, tended to establish that on September 21st, 1934, she was a customer of the defendant bank; that there is a flight of six or seven stone steps leading up from the sidewalk to the banking room of the defendant and that the bank had installed an iron handrail or banister, in the center of the steps, running up and down, as an aid to those, entering or leaving the premises; that on the afternoon of the day in question, as the plaintiff was leaving the defendant’s premises, having gone there on business usual to a depositor, several children were playing on the steps and one of them, while swinging on this handrail or banister, struck or tripped the plaintiff, causing her to fall and suffer injury; that the children were playing on the steps when she entered the bank and that she had often seen children running up and down the steps of the bank, playing on other occasions, as well as swinging on the rail.

Another witness, Miss Brooks, testified that children used to play there every day, and the police officer on traffic duty at that point, which is opposite a school building, likewise saw the children playing on the steps, in the morning before school started, at the noon recess, and after school was dismissed in the afternoon.

The court nonsuited on the theory that the happening complained of was one that, from the circumstances, could not reasonably have been foreseen by the defendant.

In the briefs before us it is argued that the appellant was an invitee and as such was entitled to assume that the premises would be maintained in a reasonably safe condition for those who used the building. With that contention we agree.

It is next argued that there was sufficient evidence from which a jury might find the defendant was negligent and that the negligence was the proximate cause of the injury. It is not contended that there was any negligence in the construction of the steps or the placing of the handrail, but it is argued that the presence of the children playing on the steps and around the handrail constituted a menace to those entering or leaving the bank, and that the defendant had had constructive notice of the fact that children played there and that this constituted actionable negligence.

The court, before granting the nonsuit on the gronnd mentioned above, stated that in its opinion the bank had had constructive notice of the fact that the children were wont to play there. As to this, the only proof in the case is the testimony of Miss Brooks, who said one could see these steps and railing “from the center of the bank when you go in.” But, passing that, we do not believe that as a matter of law the defendant bank, in the discharge of its duty to use reasonable care for the safety of those using its premises, was obliged to maintain a watchman or guard over the steps so that children would neither tarry nor play on the steps or about the handrail. To hold that it had such duty would he to burden it with a degree of care that the law does not place upon it.

In the cases upon which appellant relies to maintain its theory of liability, the facts are materially different. For instance, in Exton v. Central Railroad, 62 N. J. L. 7; 42 Atl. Rep. 486, the plaintiff was injured in the railroad station close to the baggage room by cabmen who were indulging in “horseplay.” The facts of that case are similar to those in Flint v. Norwich, Trans. Co., 344 Conn. 554, which case is referred to in Miller v. West Jersey, &c., Railroad Co., 71 N. J. L. 363; 59 Atl. Rep. 13. In Stark v. Great Atlantic and Pacific, 102 N. J. L. 694; 133 Atl. Rep. 172, plaintiff was injured in the store of the defendant by its negligence in having a defective floor board in the premises. We do not perceive how the cases support the appellant’s position.

From the proofs before us, we think that there was no evidence that the bank had any notice of any existing danger, as such,, arising out of the presence of the children on the steps. Nor is there in the record before us any evidence of how long the children, on the afternoon in question, had been playing around the handrail, or that they had been there for a sufficient length of time to have afforded a reasonable opportunity to the defendant to stop them in their play on the steps. Nor is there any proof that the presence of the children, from past experience, was reasonably liable to canse injury to anyone. This view, we think, follows the reasoning of our Court of Errors and Appeals in Seckler v. Pennsylvania Railroad, &c., 113 N. J. L. 399; 174 Atl. Rep. 501.

The judgment of nonsuit is affirmed, with costs


text:
    SALLY WINARSKY, BY ARTHUR WINARSKY, NEXT FRIEND, AND ARTHUR WINARSKY, PLAINTIFFS-APPELLANTS, v. MAX COHEN, DEFENDANT-RESPONDENT.
    Submitted January term, 1937
    Decided May 15, 1937.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    Eor the plaintifEs-appellants, Klein Klein (Morris Klein, of counsel). •
    Eor the defendant-respondent, Lindabury, Depue <& Faulks (Waller F. Waldau, of counsel).
   Per Curiam.

This is an appeal from a judgment of nonsuit. The plaintiff, a child about four and one-half years old at the time of the accident, was injured as a result of being struck by an unattached steam radiator, the property of the defendant, which was stored in the yard of the premises in which the plaintiff lived. The radiator struck or fell upon the infant plaintiff.

Tlie testimony discloses that the plaintiff lived with her parents in a four-room apartment, on the second floor, in a house owned by the defendant, at 324 Clinton Place, which is at the corner of Lehigh avenue, in the city of Newark. There are six stores on the ground floor of this building and the building itself extends approximately one hundred and thirty-five to one hundred and forty-five feet along Clinton Place, by about twenty-five feet in depth, along Lehigh avenue. The entrance hallway of the house is located on Clinton Place, approximately in the center of the building. Prom the rear of this hall an exit leads to the yard. Along the rear wall of the building, in the yard, is a concrete walk, three or four feet in width. There is also an exit from the yard through a wooden gateway, opening on Lehigh avenue. The defendant’s plot, exclusive of that part on which the building stands, was enclosed by a fence. In addition to the exit to Lehigh avenue, which we infer was for the convenience of pedestrians, was a large gate, generally kept locked, to admit the trucks of the owner into the yard. Defendant owner maintained a plumbing business in one of the stores at that end of the property farthest from the Lehigh avenue corner, the fifth of the six stores.

The yard, according to the testimony, was filled to a considerable extent with plumbing supplies, radiators and the like. It will serve no useful purpose to recite the testimony in detail. It is sufficient to say that there was no evidence whatever as to how the accident happened other than the statement that it did happen. There is no testimony that the yard space was included as part of the rented premises or that the infant might lawfully go there.

The cases upon which appellant relies are not in point. In Polizzano v. Mapes Holding Co., 115 N. J. L. 352; 180 Atl. Rep. 419, the yard where the plaintiff suffered injury was reserved for the common use of the tenants. See, also, Burnett v. Superior Realty Co., 90 N. J. L. 660; 162 Atl. Rep. 831. In Snowden v. Marks, 13 N. J. Mis. R. 171; 176 Atl. Rep. 609; affirmed, 115 N. J. L. 615; 181 Atl. Rep. 526, the plaintiff’s injury was received in the hallway, necessarily reserved for the tenant’s use. Compare Saunders v. Smith Realty Co., 84 N. J. L. 277.

The theory of defendant’s liability as outlined in the complaint is that the defendant, by having these plumbing and heating supplies strewn about the yard, was maintaining a nuisance. That argument would require consideration if it appeared that the plaintiff had the right to use the yard, or that section of it in which she was injured.

One more observation concerning the testimony is perhaps pertinent. The apartment in which the plaintiff lived was located on the second floor of the building on the corner formed by the intersection of Clifton Place with Lehigh avenue. The exit into the yard from the hall of the building led immediately to the concrete walk. The accident did not happen on this walk between such exit and the Lehigh avenue gate but at the other end of the yard entirely. Prom this fact item, i.'e., the place where the injury was suffered, it cannot be maintained that there was an implied invitation to use the concrete walk in the yard, as otherwise it might be, if the accident happened between the hall exit to the yard and the Lehigh avenue gate.

Under the circumstances therefore, we see nothing that should have been determined by the jury either on the theory that the defendant, under the proof in the case, owed a duty to the infant as an invitee, because there was no evidence that the use of the yard was included in the leased premises, or upon the theory that the defendant was guilty of negligence since there was no testimony to support that inference.

The judgment of nonsuit is affirmed, with costs.


text:
    RICHARD W. WILLS, PLAINTIFF-RESPONDENT, v. BUDD H. ATKINSON, DEFENDANT-APPELLANT.
    Argued May 4, 1937
    Decided May 17, 1937.

      Before Justices Lloyd, Case and Donges.
    Bor the plaintiff-respondent, James Mercer Davis.

    Box the defendant-appellant, Robert Peacock.

   Pee Curiam.

The defendant seeks to open a judgment entered against him and to be allowed to submit a defense to' the action. The matter is before us on the return of a rule directing Bichard W. Wills, plaintiff, and Bobert A. Cook, assignee, to show cause why the judgment should not be vacated and set aside, and restraining the sheriff of the county of Burlington from making sale of the securities taken under the execution and from proceeding with the execution until the further order of the court. In accordance with the provisions of the rule proofs were taken before a Supreme Court commissioner.

Appellant is a farmer sixty-six years of age. The judgment was on bond and warrant of attorney executed in connection with a mortgage upon property which, according to the record, was conveyed by Bichard W. Wills to Atkinson contemporaneously with the execution of the bond and mortgage. The mortgage was shut out by the foreclosure of a prior encumbrance. The judgment in the instant cause being on bond and warrant, the defendant had no notice of the action. The first knowledge that he had of the judgment or of the events leading thereto ivas obtained from the service upon him of a fieri facias for the amount of the judgment and costs. Proofs are submitted by the appellant which, prima facie, sustain his contention that the conveyance of title to him was without his knowledge and that the mortgage and the bond and warrant of attorney were executed by him under the mistaken belief and on the representation of the officer who took his acknowledgment thereto that they wore papers of an entirely different character, and that the entire transaction was a fraud upon him.

It appears from the facts alleged by the appellant and supported by the proofs placed by him before us that he has a meritorious defense to an action on the bond.

The judgment will be opened to permit a defense to be interposed; the lien of the execution to continue, however, until the further order of the court; costs to abide the event. If, as we surmise, there is nothing in the files to which defendant may answer, the plaintiff will promptly serve and file a complaint, failing which defendant may apply to this court for an absolute vacating of the judgment, of the execution issued thereon and the levy made thereunder.


text:
    JAMES BROOKS, PLAINTIFF-APPELLEE, v. GREAT AMERICAN INDEMNITY COMPANY, A BODY CORPORATE, DEFENDANT-APPELLANT.
    Submitted January term, 1937
    Decided May 12, 1937.
    Before Bkogan, Chiee Justice, and Justices Case and Pekskie.
    For the plaintiff-appellee, Quinn, Parsons •& Doremus (Theodore J. Labrecque, of counsel).
    For the defendant-appellant, Kremer & Proctor (Ward Kremer, of counsel).
   Brogan, Chief Justice.

The defendant appeals from a judgment recovered by the plaintiff. The pertinent facts are that James Brooks, the plaintiff, as a result of an automobile accident, recovered a judgment against Joseph Samanok, who, at the time of the accident, was in the employ of Mrs. Isabel E. Buerman. An execution against Samanok having been returned unsatisfied, Brooks brought the present action in the Monmouth County Court of Common Pleas to recover the amount of the judgment from the Great American Indemnity Company, the insurer of Mrs. Buerman, on the theory that Samanok, at the time of the accident, was operating the automobile with the permission of the assured. If this was the fact (and the jury apparently found that it was) then the defendant was liable under its insurance contract with Mrs. Buerman.

The company filed an answer denying that Samanok was operating the car with the permission of the insured, or any adult member of her family. Brooks filed a reply to the effect that the insurance company was estopped from denying its liability on the policy because, with full knowledge of the facts, the company entered a defense to the action and, after an investigation, retained independent counsel for Samanok and tried the case in his behalf.

The sole ground of appeal argued here is that a certain portion of the charge of the court to the jury "precluded the jury from considering the testimony as to lack of permission in Samanok to operate the automobile at the time of the accident.”

The language of the trial court said by the appellant to constitute reversible error is as follows: "that if you find that the defendant company, the insurance company, proceeded to defend Samanok, either by their own lawyer, Judge Kremer, or by hiring another lawyer — I don’t think that makes much difference — having at that time, through their agents, a knowledge of all of the facts and circumstances of this case, so that they might have known and should have known whether or not they were liable under the terms of the policy. (Sic.) If they wore, if they had such knowledge, and knew, or should have known that they were not liable, and nevertheless proceeded to defend Samanok, then they are in a position where they cannot urge this defense of lack of permission or lack of relationship of master and servant, and your verdict would then also be in favor of the plaintiff and against the defendant insurance company.”

Our reading of the entire charge makes it plain to us that the court, in charging the jury, undertook to explain the legal position of the parties as made out by the pleadings. The court took the complaint and outlined the plaintiff’s claim. The court, turning then to the answer, explained the interposed defense and then taking up the reply, explained its provisions and concluded by saying, “now what is meant by that [i. e., the reply] ? Simply this: * * And then proceeded to make the statement set out verbatim, abqve. We see no error in this. It was merely an exposition of the averments of the plaintiff’s reply, stripped of its technical language.

Under this point, it is also argued that although the insurance company provided counsel to defend Samanok, that it had, prior to the trial, obtained from him a signed non-waiver agreement, the effect of which, the appellant argues, was to negative any estoppel or waiver by the company of the right to urge, at the trial, the lack of permission on the part of the servant to operate the automobile of his employer. This element of the testimony in the case, the appellant says, was ignored by the trial judge in his charge to the jury. We make two observations as to this: first, there was no request to charge the jury on the subject of the non-waiver agreement mentioned by the appellant, at least none is in the record before us, and, second, no defense relating to this agreement was set out in the answer. Furthermore, we find in the charge sufficient reference to this phase of the testimony. If the appellant desired the matter especially brought to the attention of the jury, a request to so charge should have been submitted.

The judgment is affirmed, with costs.


author: Ackerson, S. C. C.

text:
    ABRAHAM J. SLURSZBERG AND AARON A. MELNIKER, RECEIVERS OF JEWETT REALTY CORPORATION, PLAINTIFFS, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Decided February 11, 1936.
    For the plaintiffs, Frank W. Heilenday.

    For the defendant, Perkins, Drewen <& Nugent.

   Ackerson, S. C. C.

The first amended complaint herein having been previously stricken out upon motion, the defendant now moves to strike the second amended complaint upon the grounds that it is frivolous; shows no right, title or interest in the plaintiffs to the cash surrender value of the insurance policy upon which the action is based, and that the proceeds of said policy are exempt from the claims of creditors.

The second amended complaint discloses that on May 5th, 1925, the defendant company issued its policy of insurance on the life of Thomas Sluberski in the sum of $5,000, payable to said Sluberski twenty years after the date of the policy, provided insured is then living, or in the case of the prior death of the insured, then to his wife as beneficiary, with the right reserved by the insured to change the beneficiary and providing for a cash surrender value to the insured under certain specified conditions after the second year, increasing in amount each year. It is specifically allegéd that the premiums were paid in full until April 1st, 1931, at which time the cash surrender value of the policy was $1,247.40.

The complaint further alleges that on November 29th, 1928, the insured became indebted to the Jewett Realty Corporation in the sum of $1,600, and on March 5th, 1932, a receiver of said corporation recovered a judgment against said insured for $1,417, and that on April 15th, 1932, the right, title and interest of the insured in said policy of insurance was sold by the sheriff under an execution upon said judgment to said receiver, and the policy was delivered to him. A copy of the policy in question is now annexed to and made a part of this complaint arid by amendments the complaint is further made to allege that both the assured and the beneficiary were alive at the time of said levy and sale of said policy and are still alive; that “no claim for exemption pursuant to sections 38 and 39 of the New Jersey Insurance law (2 Qomp. Btui., p. 2850) was made either by Thomas Sluberski or any other person;” that, “by virtue of said execution levy and sale, all of the right, title and interest of said Thomas Sluberski” (the assured) “in and to said policy, * * * was assigned by operation of law” to said receiver, and “on or about April 20th, 1932, a written notice of said assignment was delivered to the defendant and accepted by it, and. the said policy was duly surrendered to the defendant and demand made * * * for its cash surrender value, but the defendant refused and still refuses to pay the same or anj^ part thereof,” and that at said times the “policy was in full force and effect.” It is further alleged that the plaintiffs were duly substituted as receivers of the Jewett Realty Corporation. It is important to note, however, that the complaint does not allege that the insured, Thomas Sluberski, ever assigned the policy to the plaintiffs or their predecessor, nor that he ever exercised his right to surrender the policy and receive the cash surrender value, or authorized the plaintiff to do so, or ever changed the beneficiary. Furthermore, it is not alleged that the sale by the sheriff is expressed in any writing, nor that the alleged assignment “by operation of law” is evidenced by any written instrument whatsoever, nor that plaintiffs or their predecessor ever applied to change the beneficiary.

Since the plaintiffs are, in legal contemplation, creditors of the insured, it follows that the legal sufficiency of the complaint in this action depends in the first place upon whether the policy in question (or its alleged cash surrender value) is exempt from the claims of the creditors of the insured by virtue of section 38 or 39 of the “Insurance act” (Pamph. L. 1902, p. 422; 2 Comp. Stat. 1910, p. 2850), which provides as follows:

38. “When a policy of insurance is effected by any person on his own life, or on another life in favor of some person other than himself, having an insurable interest therein, the lawful beneficiary thereof, other than himself or his legal representatives, shall be entitled to its proceeds, against the creditors and representatives of the person effecting the same; * * *; provided, that, subject to statute of limitation, the amount of any premiums for said insurance paid in fraud of creditors, with interest thereon, shall inure to their benefit from the proceeds of the policy; * * *.”

39. “Every policy of life insurance made payable to or for the benefit of a married woman * * *, whether procured by herself, her husband, or by any other person, * * *, shall inure to her separate use and benefit, and to that of her children according to the terms and provisions of the policy * * *, subject to the above provisions relating to premiums paid in fraud of creditors.”

Plaintiffs insist, in the first place, that these sections of the “Insurance act” do not apply to the policy in question because it is asserted that the policy is an endowment policy, a mere device for saving, and not a life insurance policy as contemplated by the foregoing statute; and that in any event the insured is the present “lawful beneficiary,” and in order to be exempt from execution, the policy must be “in favor of some person other than himself” (the insured).

The difficulty with the first contention is that, while the policy in question may contain investment features so far as the endowment provision is concerned, nevertheless, the policy contains a definite life insurance feature also, and the legislature did not specify that the exemption would not apply if the policy contained features and benefits in addition to regular life insurance. The legislature was concerned with protecting the future of those dependent upon the continued life of the insured no matter by what name the policy is designated or how many other features or benefits it may contain.

It is a matter of common knowledge that life insurance policies are termed “general,” “ordinary,” “old-line,” “paid-up,” “tontine,” “assignment,” “endowment,” &c., dependent upon the terms and conditions of the different forms of contracts. The newer forms of policies and their broader provisions are designed to meet competition between the companies and to attract purchasers. In 1 Qooley on Insurance 782, 783, we find this statement:

“Life insurance is not, however, necessarily insurance for the full term of one’s life. Some life policies are contracts of investment as well as of insurance.”

The addition of these new features does not, however, divest the policy of its chief character, or make it other than a life insurance policy. Baronovich v. Horwatt (Aetna Life Insurance Co.) (Pa.), 173 Atl. Rep. 676.

Regarding plaintiff’s second contention it may be said that while the endowment or investment feature of this policy is payable to the insured, contingent, of course, upon his being alive at the end of twenty years from its date, nevertheless, the life insurance provision of the policy covering the intervening period is “in favor of some person other than himself,” and so falls within the specification for .exemption required by the statute. The plaintiffs overlook these separate and distinct features of the policy.

The plaintiffs further claim that sections 38 and 39 of said “Insurance act,” supra, are unconstitutional in that they violate article 4, section 7, subsection 4 of the state constitution, which provides that:

“To avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other every law shall embrace but one object, and that shall be expressed in the title.”

The full title of the act in question is:

“An act to provide for the regulation and incorporation of insurance companies and to regulate the transaction of insurance business in this state.”

It is argued that the aforesaid sections of the “Insurance act” make the legislation dual in character, i. e., insurance, and the exemption of the proceeds thereof from execution, and that the latter object is not expressed in the title of the act.

The test to be applied in determining this question is found in Stockton v. Central Railroad Co., 50 N. J. Eq. 52, 70, where it is said:

“The end aimed at is that each law shall have a single general object, which shall be stated in its title, and that all parts of the law shall be germane to that one subject.” (Italics mine.)

The origin of life insurance is traceable to benevolent motives, the object being to secure to the family of a person who is dependent on a salary, or other income which ceases with his life, a support upon the death of insured, by small contributions from the annual income. 37 C. J. 360, § 3.

Sections 38 and 39 of the act in question are clearly germane to the subject of life insurance, and are intended to secure its primary object as above explained, i. e., to secure to the widow of the insured a support upon his death by keeping the proceeds of the policy intended for her benefit free from the claims of the insured’s creditors. The “transaction of insurance business” not only comprehends the writing of policies upon the life of an insured, but also the payment of the proceeds thereof at his death. Hence the protection of such proceeds to effectuate the object of the insurance as above expressed is germane to the subject of transacting insurance business.

It seems idle to argue that legislation upon the subject of life insurance becomes dual in purpose when all parts of the act seek to carry out the very object of the business it intends to regulate. The criticised sections of the act in question'do not amount to “intermixing in one and the same act such things as have no proper relation to each other.” The construction of this legislation contended for by the plaintiffs is too narrow and limited; it would leave the law powerless to carry out the fundamental legislative intent as evidenced by the entire act.

The complaint also contains the allegation that “no claim for exemption, pursuant to sections 38 and 39 of the New Jersey Insurance law was made by either Thomas Sluberski or any other person,” and it is argued under this phase of the pleading that failure to claim exemption would amount to a waiver of any rights by the beneficiary of the policy.

In the first place it must be noted that a waiver is not pleaded. All that is asserted is that “no claim for exemption * * * was made by either Thomas Sluberski or any other person.” It seems sufficient to observe that notice is a necessary element of waiver, and it is not alleged that the assured wife, as beneficiary, had notice of the aforesaid execution sale and the alleged demand by the plaintiff for the cash surrender value of the policy. It is the beneficiary who is protected by the statute, not the assured.

In the second place, sections 38 and 39 of the act in question, do not require a “claim for exemption,” * * * if the beneficiary’s rights can be thus designated, in order to secure the protection provided for therein. These sections automatically become a part of every policy of insurance provided a benefit for a beneficiary in the event of the death of the insured, and must be observed as a part of its contractual obligation by every such insured.

The plaintiffs also contend in their brief that the beneficiary named in the policy sub judies is merely an expectant beneficiary and has no present interest in the policy.

A careful reading of the legislation in question, however, in the light of what has already been said, will inevitably lead to the conclusion that by whatever term the beneficiary’s interest may be designated, particularly if the policy provides a benefit for a married woman, it shall, in the language of the statute, “inure to her separate use and benefit,” subject only to a claim for “premiums paid in fraud of creditors,” whether her interest is vested or contingent, present or future. The aforesaid sections of the “Insurance act” protect her, as against the insured’s creditors, so that with the happening of the contingency upon which the enjoyment of her “benefit” depends, the proceeds of the policy will be available for her.

We now come to the fundamental ground upon which plaintiffs rest their alleged cause of action, i. e., that the cash surrender option given by the policy to the insured, in the exercise of which the beneficiary has no voice, is a property right in the insured which is available to his creditors upon execution.

No claim is here made on the theory that the premiums paid on this policy were in fraud of creditors, and rights reserved to creditors under such circumstances by the above quoted sections of the “Insurance act” are not involved. The sole claim presented being the asserted right of a creditor to resort to the insured’s unexercised cash surrender option.

The plaintiffs point out that the policy in question specifically reserves to the insured the right to change the beneficiary, surrender the policy for its cash surrender value at will, and recognizes his legal right to assign his right, title and interest therein. They, therefore, argue that, since the insured’s right to surrender the policy for its cash surrender value is superior to the right of the beneficiary therein, this right must necessarily pass under a creditor’s execution sale of the right, title and interest of the insured in the policy. In other words, it is contended that the purchaser at such sale, may, in the language of the policy, “legally surrender” the policy and obtain its cash surrender value, without the consent of the insured manifested in the manner required by the policy.

To sustain such a claim would wholly destroy the intent and purpose of the legislation in question and deprive beneficiaries in such cases of the protection the legislature intended for them. A policy thus surrendered would not be “legally surrendered” within the meaning of the policy if its effect would be to defeat the object of the statute.

The mere reservation of the insured of the right to nullify or destroy the interest of the beneficiary whether we consider it vested or contingent, cannot be extended or enlarged to such an extent that the reservation is to be regarded as operating automatically from the time it was made, which ■would have the effect in such policies of cancelling the interest of the named beneficiary at the same instant such interest was created. To hold thus would not only be an absurdity, but would be violative of the policy adopted by the legislature in the enactment of sections 38 and 39 of our “Insurance act.”

While it may be true that the insured may cash in his policy without regard to the wishes of the beneficiary; that reserved right, since the insurance was effected and taken out for the benefit of the latter, to give force and effect to the statute, must, as to creditors seeking to exercise it in the place and stead of the insured, where the latter has not acted, be deemed and held subordinate to the rights of the beneficiary. There are no sound reasons, either in morals or in equity and good conscience, why the creditor, to the detriment of the beneficiary, should be given the right and privilege of the insured in such cases. No credit is extended to the insured on the faith of the insurance, for all persons dealing with him are bound to know the law, and that money to become due thereon, when payable to a third person, having an insurable interest, is exempt from their claims. The legislature was careful to protect the just claims of creditors, and to give them all that they could equitably ask for, when it provided at the end of section 38 of the “Insurance act” as provided: “Provided, that, subject to statute of limitation, the amount of any premiums for said insurance paid in fraud of creditors, with interest thereon, shall inure to their benefit from the proceeds of the policy.” A similar provision is found at the end of section 39 of said act, thus clearly evincing a legislative intent to provide for the just claims of all concerned in such policies and defeating the plaintiffs’ contention that to deny their claim would be establishing a haven for fraudulent debtors.

The statute is wise in its purpose, securing as it does after the death of the insured, pecuniary -aid and assistance to the beneficiary, usually some one who is dependent upon the insured for support, and should not be frustrated or impaired by opening the door to those who have no just or equitable claim to the money. This view is amply sustained by authority construing similar statutes. 25 C. J. 14; Murphy v. Casey (Minn.), 184 N. W. Rep. 183; Schuler v. Johnson (S. D.), 246 Id. 732; Holden v. Stratton, 192 U. S. 202; In re Messinger (C. C. A. 2d), 29 Fed. Rep. 158; 68 A. L. R. 1205; In re Orear (C. C. A. 8th), 189 Fed. Rep. 888; In re Booss, 154 Id. 494; 18 Am. B. Rep. 658; Moser v. Com. Mut. Life Insurance Co., 131 Ky. 215; 119 S. W. Rep. 192; Bailey v. Wood, 202 Mass. 563; 89 N. E. Rep. 149; In re Pinals (United States District Court of New Jersey, 1930), 38 Fed. Rep. 117. See, also, G. P. Farmer Coal and Supply Co. v. Albright, 90 N. J. Eq. 132; 106 Atl. Rep. 545.

The plaintiffs rely very largely upon the ease of Blinn v. Dame, 201 Mass. 159; 93 N. E. Rep. 601, as construing a statute almost identical with our own and taking a contrary view to that above expressed. In that case, however, the court was dealing with the effect of a written assignment of the policy by the insured, and so it is not at all helpful in the case sub judice where it is not alleged or claimed that the insured made any written assignment of the policy to his creditors.

Beference is also made to Cohen v. Samuels, 205 U. S. 202; 62 L. Ed. 145, as authority for the proposition that a trustee in bankruptcy is entitled to the cash surrender value of an insurance policy, and plaintiffs claim in their brief that this right is exercised every day by trustees in bankruptcy. This may be conceded where exemption laws do not protect the proceeds of such policies from the claims of creditors as in the cast last cited. But Holden v. Stratton, supra, is of equal authority for the proposition that a trustee in bankruptcy is not vested with the title of the bankrupt to insurance policies which come within exemptions given by the state law. In re Orear, supra; In re Bray (U. S. D.), 8 Fed. Supp. 161. Our “Insurance act” provides for such exemption.

I am not prepared to say that the vast number of life insurance policies containing clauses reserving to the assured the right to change beneiiciaries, and containing cash surrender privileges, are outside of the protection afforded by sections 38 and 39 of our “Insurance act,” where the assured has not voluntarily exercised such rights and privileges, nor that sales of such policies -under execution can have the effect of defeating the -wholesome provisions of such legislation, where the assured has not so willed it, and has not paid premiums in fraud of his creditors. Such a construction would be contrary to the generally accepted meaning of such legislation, and defeat the very object thereof.

It should also be noticed, although not argued, that while the policy in question recognizes the legal right of the insured to assign his right, title and interest therein, nevertheless the exercise of this right is predicated upon certain definite conditions specifically and plainly expressed in the policy. It is settled that such conditions are conditions precedent which must be complied with in order to vest any rights under the policy in the assignee as against the insurer. Eldredge v. Mutual Life Insurance Co. (Mass.), 105 N. E. Rep. 361; Kothe v. Phoenix Mutual Life Insurance Co. (Mass.), 168 Id. 737; Gladman v. Moses (Mass.), 191 Id. 873; Boruszewski v. Middlesex Mutual Assurance Co. (Mass.), 72 Id. 250; Smith v. Scottish Union, &c., Co. (Mass.), 85 Id. 841; Sullivan v. Moroney, 76 N. J. Eq. 104; affirmed, 77 Id. 565; Anderson v. Broad Street National Bank, 90 Id. 78; affirmed, 91 Id. 331.

One of the conditions pertaining to the right to transfer the insured’s right, title and interest in the policy sub judice, is expressed therein as follows: "Any assignment of this policy must be in writing, and the Company shall not be deemed to have knowledge of such assignment unless the original or a duplicate thereof is filed at the Home Office of the Company.” Ho exception is made of an assignment arising from the sale of the insured’s rights under execution. It would seem, therefore, that, as against the insurer, such a transfer would have to be evidenced by a written instrument either from the sheriff, or the execution debtor. The complaint, however, fails to allege .any written transfer whatsoever. It is alleged that: "On or about April 20th, 1932, a written notice of said assignment was delivered to the defendant, but this refers to notice of the alleged assignment by operation of law” referred to in the preceding paragraph. It is not alleged that the assignment itself was evidenced by any writing.

It is also true that the complaint alleges that on or about April 20th, 1932, * * * said policy was “duly surrendered” to the defendant for its cash surrender value, but the quoted words constitute a bare conclusion of the pleader, not based on pleaded facts, and must be disregarded on this motion.

It follows from what 'has been said, that the defendant’s motion must be granted and the second amended complaint stricken out upon all three grounds urged by the defendant as hereinbefore stated, and an order may be presented in accordance with the conclusion thus reached.