author: Smith, Joseph L., C. C. J.

text:
    Essex County Circuit Court.
    LIT BROTHERS, A CORPORATION, PLAINTIFF, v. HENRY (HARRY) L. BAUMAN, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF EDNA O. BAUMAN, DECEASED, DEFENDANT. LIT BROTHERS, A CORPORATION, PLAINTIFF, v. HENRY L. BAUMAN, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF EDNA O. BAUMAN, DECEASED, DEFENDANT.
    Decided April 15, 1941.
    For the plaintiff, Reed <c& Reynolds (by Everett B. Smith).

    For the defendant, Koehler, Augenbliclc & Freedman (by Bernard Freedman).

   Smith, Joseph L., C. C. J.

These two cases had been tried before me, sitting without a jury, at the Essex Circuit and were submitted to the court on a stipulation of facts under date of January 7th, 1941.

The two suits are brought to recover for a deficiency arising after foreclosure, upon a bond given'by Edna O. Bauman and Henry L. Bauman (both now deceased). From the above mentioned stipulation on file, it appears that Edna O. Bauman and Henry L. Bauman executed the bond in question to the Guardian Title and Mortgage Guaranty Company of New Jersey, in the sum of $18,500, dated February'9th, 1928, and duly recorded; by various mesne assignments, the bond and mortgage were assigned to the plaintiff. Edna O. Bauman died intestate on September 12th, 1936, and Henry L. Bauman was appointed administrator of her estate; he, too, having died subsequent to the institution of the above causes of action, Everett O. Bauman has now been appointed substitute administrator of the estate of Edna O. Bauman and administrator of the estate of Henry L. Bauman.

Foreclosure suit was filed by plaintiff on December 21st, 1937, and lis pendens was duly filed thereafter; on July 22d, 1938, final decree for the sale of the lands and premises was entered by which the sum of $20,236.49 was found to be due upon the mortgage, together with legal interest from July 11th, 1938, and costs. Sheriff’s sale was held on December 27th, 1938, which sale was confirmed January 9th, 1939. As of December 27th, 1938, the balance remaining due and unpaid, after giving credit for $100 paid at the sheriff’s sale, was the sum of $20,982. The present suits were brought in due time.

On July 5th, 1938, the complainant in the foreclosure suit, who is the plaintiff in the present suits, acting through its duly authorized agents, leased the premises in question to one Sig Greenbaum, a copy of which lease is attached to the stipulation and is on file. The said lease was for a period of fourteen months, commencing the first day of August, 1938, and ending the 30th day. of September, 1939; it contained a clause giving the landlord the right to cancel the lease at the end of any month of the term thereof, by giving the tenant a sixty-day notice in writing.

On December 27th, 1938, the date of the sheriff’s sale above referred to, the lessee, Mr. Sig Greenbaum, as tenant of the plaintiff in these suits, was in possession of said premises, under the said lease. He had not been made a party to the foreclosure suit and it does not appear that any notice had been given to the said Greenbaum prior to the said sale, to vacate the premises, so that as it appears from the stipulation of facts on file, Greenbaum held the property under the lease and had the right to hold it for a further term under the lease, until proper notice was given to him pursuant to the provisions above referred to.

The contention of the defendant in substance is that the plaintiff’s failure to join the tenant Greenbaum in the foreclosure suit amounted to failure to exhaust plaintiff’s security, and that, by reason of the existence of the said tenancy and possession of the premises by the tenant at the time of the sale, the vendible value of the premises was lessened.

The plaintiff concedes the general rule applicable, as laid down in the case of American Italian Building and Loan v. Liotta, 117 N. J. L. 467; 189 Atl. Rep. 118, to the effect that all parties interested must be joined as defendants in the foreclosure proceedings as a condition precedent to the right to hold the obligor liable on the bond. The plaintiff maintains, however, that Greenbaum’s interest in the premises came into existence after the foreclosure suit was filed, and that, for this reason, the present situation is not controlled by the Liotta case, supra, and the line of eases following it; that under the ruling of our Court of Errors and Appeals in Equitable Life Assurance, &c., v. Patzowsky, 122 N. J. L. 482; 6 Atl. Rep. (2d) 390, the failure to make Greenbaum a party defendant was not fatal; and further, that under the rule of Harvester Building and Loan Association v. Elbaum, 119 N. J. L. 437, and 121 Id. 515; 3 Atl. Rep. (2d) 450; Fidelity Union Trust Co. v. Gerber Bros. Realty Co., 123 N. J. Eq. 511; 199 Atl. Rep. 7, the question of lessening the vendible value of the premises is one of fact; and the plaintiff should be permitted to introduce testimony to show that the vendible value of the premises was not affected, as of the date of the sheriff’s sale, by reason of the Greenbaum lease.

it is not, therefore, necessary, to reiterate the general principles laid down in the Liotta case, supra, but merely to determine whether or not the present case comes under the distinctions made in the cases above cited and relied upon by the plaintiff.

In the case of Equitable Life Assurance Co. v. Patzowsky, supra, ihe mortgagors’ liability for deficiency on the bond was sustained upon the ground that the tenancy, which was in existence at the time of the sheriff’s sale, had been created by the receiver appointed by the Chancery Court, after foreclosure suit was filed; the said receiver, as pointed out by the court, standing in the shoes of the mortgagor. Also, the mortgagor had acquiesced in the appointment of the receiver and the powers conferred upon him. The tenancy being a creation of the mortgagor-obligor, or of one standing in his shoes, after foreclosure suit was filed, the mortgagor was not permitted to assert the defense that the rental values w.ere lessened by such tenancy. In the present case, however, the lease, extending beyond the date of the sheriff’s sale, was made by the mortgagee, through its agent. Under the principle of the Patzowsky case, supra, then, the instant case does not present a situation which justifies barring the defendant from asserting the defense of lessening the vendible value of the mortgaged property by reason of selling the property subject to an existing tenancy.

The next problem presented is, whether or not under the facts here present, the question of lessening the vendible value of the premises by selling the same subject to an existing tenancy, is one of fact to be determined by further testimony on the point, or, is it a necessary conclusion to be drawn from the facts? In the Harvester case, supra, the court restated the well-recognized rule that nothing short of a complete exhaustion of the property and all interests therein, must be had to satisfy the requirements of the statute. The court merely permitted the plaintiff to show, if he could, that the tenancy which constituted the encumbrance remaining upon the premises at the time of the sale, was of such a nature that it did not lessen the vendible value by depriving a purchaser of his right of immediate possession under his deed. The court", recognizing that the purchaser’s right to immediate possession under his deed, was necessary to make the sale of the security a complete one, merely permitted the plaintiff to show that such right had not been prevented by the tenancy in question; that the sheriff’s sale being scheduled for March 31st, 1936, the tenant had been served with notice to vacate on April 1st, 1936, approximately ten days before the sale was confirmed; and that at the time of the sale, it had been announced that immediate possession would be given with the deed; that the sale was free of tenancies.

Under these facts the court held that an issue of fact had been raised as to whether the tenancy in question had affected the vendible value.

The Harvester case, supra, then, is clearly distinguishable from the instant case, in that in our case, the tenant, obtained by the mortgagee, held under a lease which would not expire for many months after the sale; true, that it contained provisions for cancellation upon two months’ notice, but such notice had not been given, so that as of the time of the sale, a purchaser would be depriyed of possession for at least two months.

As to the opinion of Vice-Chancellor Bigelow, in Fidelity Union Trust Co. v. Gerber Bros., &c., supra, there again the learned Vice-Chancellor reiterated the rule that delivery of possession is normally essential to the transfer of a good title; Vice-Chancellor Bigelow found, however, that in the case before him, the tenancy was cut off by the foreclosure and that the purchaser at the sheriff’s sale had acquired the right to immediate possession. Whereas, in the instant case, it is not contended by the plaintiff that the tenancy in question was either inaffective, or that it was cut off, or terminated; or that the purchaser obtained the right to immediate possession. Under the principle of the cases discussed, it follows then, that the defense here interposed must prevail; that it is fatal to the plaintiff’s suit.

I find the facts to be as stated in the stipulation, * * *. Therefore, after considering the stipulation and the arguments submitted by counsel for the plaintiff and the defendant, the court finds for the defendant, no cause for action. Judgment may accordingly be entered for the defendant.


source: Caselaw Access Project

author: John C. Wegner, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CAMPBELL LINDSAY, PETITIONER, v. HOFFMAN BEVERAGE CO., RESPONDENT.
    Decided May 1, 1941.
    For the petitioner, Meyer Semel.

    For the respondent, John W. Taylor.

   *******

The petitioner, who was employed as a service-man in the garage operated by the respondent in connection with its plant, testified that he was so employed on April 5th, 1940, and that about one-fifteen p. M. on that day he was assaulted by John Savage, another 'employe of the respondent, and caused to suffer certain injuries by reason of the assault. It appears from the testimony that prior to the incident of April 5th, 1940, Lindsay had been of the opinion that Savage had carried “tales” about him and his work to a Mr. Shippe, who was the foreman in charge of respondent’s garage. In addition to feeling that Savage had lied about him on several occasions to Mr. Shippe, Lindsay also felt that Savage attempted to assume some authority oyer him when in fact Savage had no authority so far as he, Lindsay, was concerned. He stated that he had so expressed himself to Mr. Shippe and had been advised by Mr. Shippe that in the event of any misunderstanding between him and Savage he was to communicate with Mr. Shippe, who would straighten out the difficulty.

Lindsay testified that at about one-fifteen p. m. on April 5th, 1940, Savage came up to him and asked him where he had been during the morning and in reply to this query Lindsay said: “ If you want an answer to this question you will have to have Mr. Machado, the garage foreman, ask me the question and 1 will answer the question through him.” According to Lindsay one word led to another and finally he went into the office on the first floor of the garage for the purpose of calling Mr. Shippe, that his attempt to contact Mr. Shippe was unsuccessful and while so doing, Savage lost his temper and slapped him in the face causing him to fall to the floor. While he was attempting to regain his feet he saw a fellow workman, a Mr. Klok, come into the office and get between him and Savage. A Mr. Iseman also came in and intervened. He claims that while attempting to regain his feet, he was kicked in the face (indicating the right jaw) and also kicked in the back by Savage. Lindsay denied that ho struck Savage at any time during the altercation although he did admit saying to Savage, “Strike me and see what you get.”

Mr. John Savage testified that he was employed as a clerk in Mr. Shippe’s office and that on the morning in question he had been instructed by Mr. Shippe to locate the petitioner. He stated that he searched around the plant for Mr. Lindsay for some two or three hours before he was able to locate Mm and when he finally located him in the garage shortly after the noon hour inquired where he had been and Lindsay immediately took offense and indicated very strongly that he felt that his whereabouts during the morning were of no concern to Savage. He said that during the course of the discussion which followed, they made their way into the office and while in the office he tried to reason with Lindsay stating that the entire matter was between the two of them and that there was no need for them to re-hash their respective grievances in the presence of anyone else. Lindsay thereupon flew into a rage and used abusive language calling Savage by uncomplimentary names and finally putting up his fists and offering to fight it out. Savage stated that he told Lindsay that he did not care to fight but when Lindsay persisted in calling him certain “names” and flourished his fists in Savage’s face indicating to Savage that he was in a position of peril, he, Savage, struck Lindsay on the right side of his face. Savage stated that he could not recall which of the two struck the first blow but that they each hit the other and during the course of the flurry of blows Lindsay fell to the floor and it was at this time that Messrs. Klok and Iseman came into the office.

Savage stated that prior to the incident of April 5th, he had an occasion to complain about Lindsay to Mr. Shippe and when Lindsay heard of this he strongly indicated his feeling towards Savage and accused Savage of lying about him to Mr. Shippe.

Mr. Klok and Mr. Iseman, who were called as witnesses for the petitioner corroborated Savage for they both testified that their- attention was attracted to the office by loud voices and the sound of furniture being pushed around the office. When they entered the office, they said, they saw “fists flying” and the two men clinched together. This testimony directly contradicts the testimony of Lindsay for Lindsay denied striking Savage.

Mr. Joe Palmer, who testified for the respondent, related incidents leading up to the occurrence. He saw a fist fly and Lindsay fall but was vague as to all that took place as he was approximately fifty feet away.

Mr. Shippe, the garage foreman, likewise corroborated Savage’s testimony, for he stated that sometime shortly prior to the altercation of April 5th Lindsay had accused Savage, in his presence, of complaining and lying about his work to Mr-. Shippe.

The paramount issue in the case was whether or not Lindsay suffered injury by reason of an accident arising out of and in the course of his employment by the respondent company.

In Hulley v. Moosebrugger, 88 N. J. L. 161; 95 Atl. Rep. 1007, the Court of Errors and Appeals held that an employer was not liable under the Workmen’s Compensation act where one of his employes, in a spirit of play, swung his arm around at another employe, either to knock off his hat or to strike him, whereupon that employe, in dodging the attack slipped on a concrete floor, fell and sustained injuries which caused his death. The court held that an employer was not liable under the Workmen’s Compensation act to pay compensation for injury to an employe which was the result of horse-play or sky-larking for while an accident happening under such circumstances may arise in the course of, it cannot be said to arise out of the employment. There was no evidence in that case that the employer had any knowledge of prior skylarking on the part of any of his employes or that he had any opportunity to prevent the occurrence.

In Mountain Ice Co. v. McNeil, 91 N. J. L. 528; 103 Atl. Rep. 184, the employe, McNeil, was struck on the head with an ice-pick by a fellow employe, and sustained injuries for which he brought suit under the Workmen’s Compensation act against his employer. On the day of the occurrence the employes had been working together in an icehouse and a fellow employe had tried several times to pull from under McNeil a box upon which he sat while engaged in work. This finally ended in a scuffle during which the president and foreman of the ice company came in and saw what was going on. He ordered both boys back to work and they complied. Later on the fellow employe struck McNeil a blow on the side of the head with an ice-pick, injuring him. An award was made in the Workmen’s Compensation Bureau in favor of McNeil as against his employer and this was affirmed by the Supreme Court on the ground that the accident to McNeil arose out of and in the course of his employment based on the theory that the master had knowledge of what was transpiring between the two boys and ordered them back to work, and that therefore it clearly could be said that what did happen was a result reasonably within the contemplation of the master and incidental to the employment under the existing circumstances. The Court of Errors and Appeals reversed the Supreme Court on the ground that the injury was the result of an atrocious assault and that the employer did not have any knowledge that such a situation was likely to occur. The court said: “We think that, because of the sky-larking which came under the observation of the president and the superintendent of the ice company’s plant, namely sky-larking between those boys, charged the president and the superintendent with contemplating no more than that the same thing might occur again, that is sky-larking or horse-play — not that one boy might thereafter commit an atrocious assault upon the other.” The Court of Errors and Appeals further said: “This case is entirely unlike the McNichols Case, 215 Mass. 497, cited in Hulley v. Moosebrugger (at p. 163), for there it was held that injuries resulting in the death of an employe while doing work from blows or kicks given him by a fellow workman in an intoxicated frenzy and passion, such fellow workman being known by the superintendent to have the habit of drinking to intoxication, and when in that condition to be quarrelsome, dangerous and unsafe to work with, was knowingly permitted to work on the day of the injury while in such condition of intoxication, and it was held that the injury thus received arose out of and in the course of the workman’s employment; while here the only propensity which was discovered to the officers of the company by the conduct of the boys was that one or both were likely to engage in sky-larking or horse-play, a thing which most, if not all, boys do, without any resulting criminal assault, and without contemplation of such result by anyone — adult or infant.”

In the McNichols case, Chief Justice Eugg, speaking for the court, said: “The first question is whether the deceased received an injury arising out of and in the course of his employment within the meaning of those words ' * * * in part 2 of the act. In order that there may be recovery, the injury must both arise out of and also be received in the course of the employment. Neither, alone, is enough.”

Likewise in Bryant v. Fissel, 84 N. J. L. 72; 86 Atl. Rep. 458, the Supreme Court of this state held that it is not alone sufficient that the injury be received by the employe in the course of his employment, stating that it must also arise out of the employment.

In Merkel v. T. A. Gillespie Co., Inc., 10 N. J. Mis. R. 1081; 162 Atl. Rep. 250, it appears that the petitioner and another were engaged as employes of Gillespie & Company in laying water mains in Jersey City. Merkel appears to have undertaken to direct one Stahlberg and other employes as to how to do certain work. This started an argument between them during which they called each other names and finally Merkel approached Stahlberg making an attempt to hit him, which blow Stahlberg dodged and in turn he struck Merkel, knocking him down and injuring him. The petition was dismissed by the deputy commissioner and this determination was affirmed by both the Court of Common Pleas and the Supreme Court. The Supreme Court in a per curiam, opinion in Merkel v. T. A. Gillespie Co., Inc., supra, said: “Appellant cites several cases in other jurisdictions which appear to hold that there may be recovery of compensation for injuries received by a workman through an assault and battery committed upon him by a co-worker.

“Because of what appears to us to be the plainly displayed contrary policy of the courts of this state, by the cases to which we have referred, we do not find ourselves swayed by the findings of other jurisdictions, and certainly not in the case before us where, as before indicated, the appellant-claimant was the aggressor.

“In the well reasoned opinion of the Court of Errors of New York in Verschleiser v. Joseph Stern Son, Inc., 128 N. E. Rep. 126, it is said: ‘The man who initiates an assault is doing a willful thing, but this cannot be said of the man who, surprised by physical assault, or insult, reacts and in self-proteetion strikes another/ In considering the foregoing it is to be borne in mind that the courts of the State of Mew York recognize the right of compensation for injuries to an employe arising from attacks by co-employes. Heitz v. Ruppert, 112 N. E. Rep. 750; Verschleiser v. Joseph Stern Son, Inc., supra; Knocks v. Metal Package Corp., 131 N. E. Rep. 741; Rydeen v. Monarch Furniture Co., 148 Id. 527; Fried v. Quinlan, 152 Id. 399; Field v. Charmette Knitted Fabric Co., 156 Id. 642.

“In L. R. A. 1916, p. 65, it is said: ‘An injury received by a workman while he himself was deliberately assaulting a fellow workman was not caused by an accident arising out of and in the course of employment/

“It appears to us that the contention that a workman injured in an affray with a fellow workman, in which he is the aggressor, cannot have compensation under the Workmen’s Compensation act, is entirely logical, and in accord with the trend of judicial thought as expressed and indicated by the cases in this state.”

I have carefully considered the testimony and having had an opportunity to observe the witnesses and particularly the parties to the altercation I am convinced that the incident was invited by Lindsay and was entirely of his own doing. Lindsay employed as an auto servicer also acted in the capacity of shop steward. My observation of the petitioner lead me to believe him as an individual quick tempered and pugnacious, whereas Savage is a graduate engineer, studious in appearance and this is corroborated by the fact that after being graduated from college he continued to take courses in order to advance himself in his profession and at the present time he is employed by the Tidewater Oil Company in a very responsible position. His quiet manner and demeanor on the witness stand has convinced me that he was not the aggressor.

I strongly believe that Lindsay resented any thought that Savage, a younger man than he, had some appearance of authority and that when he was questioned by Savage respecting his whereabouts, evidenced that resentment in the way he was accustomed to expressing his feelings when things were not to his own liking, that is, by using loud and abusive language, by name-calling, and by flourishing his fists. I am further convinced that he was not stating the truth when he said that he did not strike Savage, for this testimony of his is contradicted by his own witnesses as well as by Savage.

It is not only true as expressed by the cases above that an injury received by a workman while he himself was deliberately assaulting another is not an injury caused by an accident arising out of and in the course of the employment, but it is also true that, where a workman deliberately provokes another into assaulting him by reason of abusive and threatening language and threatening gestures -and as a result thereof suffers injury, such injury is not caused by an accident arising out of and in the course of the employment. Lindsay, I find, was injured in an affray with'a fellow workman in which affray he was the aggressor and under the settled law of this state I find that he did not suffer injury by reason of an accident arising out of and in the course of his employment by the respondent company.

Finding as I do that the petitioner, Lindsay, has failed to prove a cause of action within the terms and provisions of the Workmen’s Compensation act of this state and that he has failed to prove by competent testimony that he suffered injury by reason of an accident arising out of and in the course of his employment, it is hereby ordered * * * that the petition be and hereby is ordered dismissed.

John C. Wegner, Deputy Commissioner.


author: Harry S. Medinets, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN S. CARTWRIGHT, PETITIONER, v. INDEPENDENT PRESS, INC., RESPONDENT.
    Decided April 5, 1941.
    Dor the petitioner, Rolinson & Morris.

    Dor the respondent, George E. Meredith.

   *******

The petitioner testified in his own behalf. He testified that he had worked for a number of years prior to PTovember, 1939, as a linotype operator for the Newark Star Eagle, and when that company abandoned its business, he started in business on his own as a linotype machine repairman.

Since PTovember, 1939, the petitioner has built up a business to the point where he now has twenty or more business firms for whom he does work as the occasion requires. He has business cards which show his telephone number, and he receives calls from these various firms usually by telephone.

It further appears from the testimony that the petitioner had been called on six or eight occasions prior to his accident by this respondent, and that he has also done work for this respondent ten' or twelve times since then.

It appears further that two or three days prior to the date of his accident he received a telephone call from the respondent company requesting that he make certain changes or repairs on a machine used by the respondent. He went to the plant of the respondent, inspected the machine, recommeñded the purchase of certain parts that would be required to do the job and he then ordered the parts from a concern in Brooklyn and arranged to have them delivered at the plant of the respondent. Upon their delivery he reported to the plant of the respondent and worked all day until about seven in the evening at which time he met with his accident. During the entire afternoon from noon until seven P. M. he was alone in the plant except for a watchman.

The petitioner testified that he brought his own tools to the job as a rule, and did so on this occasion, and further, that he usually borrowed or used the larger tools of the respondent as the occasion arose. He stated that his work was not supervised, but that the defect was merely pointed out to him and from that point on it was his problem to make the necessary repairs so that the machine would run properly.

It also appears from the petitioner’s testimony that it was his custom to bill the various companies including this respondent on an hourly basis, and in this particular instance he mailed a bill to the respondent after his work was completed, and thereafter received a check by mail for the work that he had done.

With this testimony the petitioner rested, and the respondent by its attorney moved for a dismissal of the petition on the ground that the petitioner was an independent contractor, or in the alternative, a casual employe.

I have carefully considered the argument of counsel, and I conclude that the motion should be granted.

The testimony indicates that the petitioner is engaged in a highly specialized trade, and that his services are required when a machine needs repairs, or alterations to meet a new problem which may arise in this particular industry.

While the respondent leans to the theory that the petitioner was an independent contractor, I find it unnecessary to pass on that ground for dismissal because it is my conclusion that the petitioner at the time of his accident was a casual employe.

There is nothing in the testimony before me to indicate that the petitioner’s employment was regular, periodic, or recurring, which is the rule to be applied if the services were rendered while performing work not in connection with the business of the employer. It is apparent from the evidence that this employer was not engaged in the business of repairing machines, he was engaged in a printing business.

The test to be applied if the work was done in connection with the employer’s business is whether the occasion for the services arose by chance or was purely accidental. From the testimony I find that the occasion for the petitioner’s services on the date in question arose by chance. Certain conditions arose in the respondent’s business which made necessary repairs or alterations to meet a particular situation. The petitioner was called in to make these repairs or alterations, and while so doing he met with his accident.

Accordingly, from the evidence adduced, I find as a fact that the petitioner was a casual employe. In view of the provisions of R. S. 34:15-36; N. J. S. A. 34:15-36, I find that the petitioner was not an employe of the respondent at the time of his accident, and is, therefore, not entitled to the benefits of the act.

It is, * * * ordered that the petition be and the same is hereby dismissed, without cost to either party.

Harry S. Medinets, Deputy Commissioner.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    PETER POST, PETITIONER, v. WARREN POINT VOLUNTEER FIREMEN'S ASSOCIATION, RESPONDENT.
    Decided April 29, 1941.
    For the petitioner, Peter Post, pro se.

    For the respondent, Morris Bobrin.

   Quinn, President.

Petitioner, a taxpayer in the Borough of Fairlawn, filed an appeal with the Bergen County Board of Taxation, complaining that the assessor of the borough had listed as exempt for the year 1939 a certain structure owned by the respondent. The appeal was taken under R. S. 54:3-21; N. J. S. A. 54:3-21, providing that “a taxpayer feeling that he is discriminated against by the assessed valuation of other property in the county * * * may * * * appeal to the county board of taxation.” The County Board dismissed the appeal, hence these proceedings before this board.

Bespondent contends that the statute does not authorize an appeal of this type, where the complaint is as to an exemption, rather' than as to the amount of an assessed valuation. We disagree. Broadly, the assessed valuation comprises the entirety of the entry oh the tax lists, including the notation of exemption, where allowed by the assessor. See R. S. 54:4-27; N. J. S. A. 54:4-27. Petitioner has certainly been discriminated against as a taxpayer, if an improper exemption has been allowed by the assessor in favor of property owned by others.

The exemption is defended as proper under B. 8. .54:4-3.10, providing for the exemption of the property of “any exempt firemen’s association, firemen’s relief association and volunteer fire company * * * which is used exclusively for the purpose of the corporation.” While there is no prohibition of a use of the property for pecuniary profit, the requirement as to exclusive user makes the exemption depend upon the condition that no part of the property be devoted to the uses of any entity other than the owner organization. Trustees of Young Men’s and Young Women’s Hebrew Association of Newark v. State Board of Tax Appeals (Supreme Court, 1938), 119 N. J. L. 504; 197 Atl. Rep. 372; affirmed, (Court of Errors and Appeals, 1938), 121 N. J. L. 65; 1 Atl. Rep. (2d) 367. In the present case, as of the assessing date, and continuously thereafter, a portion of the association’s building was permanently rented at a fixed monthly stipend, as a garage for a fire truck owned by the Borough of Fairlawn. The property was therefore not exclusively used for the purposes of the association, as expressed in its certificate of incorporation.

The judgment of the County Board is reversed, and the assessment ordered restored to the tax rolls of the Borough of Bairlawn for the year 1939. As there was no testimony adduced by petitioner as to the true value of the property in question, .the assessment will be ordered restored to the valuations fixed for the property by the assessor of the borough for the year in question, in the sum of $2,500, being $500 on land, $1,800 on improvements, and $200 on personalty.


text:
    State Board of Tax Appeals.
    PASSAIC TRANSIT CONCRETE COMPANY, PETITIONER, v. J. H. THAYER MARTIN, STATE TAX COMMISSIONER, RESPONDENT.
    Decided April 29, 1941.
    Tor the petitioner, Walter II. Gardner.

    Tor the respondent, David T. Wilentz, Attorney-General (by John Solan).

   Quinn, President.

Petitioner was duly assessed for corporation franchise taxes for the year 1940 by respondent. It seeks exemption from the tax under the provisions of R. S. 54:13-7, as a manufacturing company, more than 50% of whose capital' stock issued and outstanding is invested in manufacturing in this state. The proof is to the effect that its entire capital is invested in a plant at which it mixes cement, stone, gravel, sand and water to produce concrete. The product is delivered, freshly prepared, in its plastic state, to the place of consumption. We think it is beyond doubt that this activity is manufacture, and that petitioner is a manufacturing company. Commissioner v. McGrady-Rogers Co. (1934), 316 Pa. 155; 174 Atl. Rep. 395.

The assessment is improper and will be ordered set aside. Judgment accordingly.


text:
    State Board of Tax Appeals.
    CITY OF NEWARK, PETITIONER, v. SUN OIL COMPANY, RESPONDENT.
    Decided April 29, 1941.
    For the petitioner, James F. X. O’Brien (by Joseph A. Ward).
    For the respondent, McCarter, English & Egner (by George W. C. McCarter and John Blair Moffett).

   Quinn, President.

On November 28th, 1939, the City of Newark applied to the Essex County Board of Taxation for the addition to the tax rolls of the city for the year 1938, of certain specified intangible personalty alleged to be owned by Sun Oil Company, and said to have been omitted from the assessment list for that year. The application was based upon the premise that the chief office of respondent, a New Jersey corporation, was situated in the petitioner taxing district upon October 1st, 1937, and that therefore, the intangible personalty of the company was properly subject to assessment there for said year. R. S. 54:4-18. The county board dismissed the application for the stated reason that the “chief office” of the company was not, as a matter of fact, shown to be situated in the City of Newark.

Bespondent resists this appeal, assigning grounds other than that expressly relied upon by the County Board in justification of its action in refusing to add the property in question to the tax list. We express no opinion as to those grounds, however, since we are of the opinion that, upon the showing made before this board, the County Board’s determination was correct, for the reason expressly assigned by it.

The showing of fact upon which we are asked by the city to find that the chief office of the Sun Oil Company was located in Newark on October 1st, 1937, is as follows: The company engages in the business of producing, refining and marketing petroleum oils. It distributes its products in thirty-two states. Although the company is incorporated here, its executive offices are not within this state, but in Philadelphia, Pennsylvania. Its statutory registered office is maintained in the City of Jersey City, but all of the business of the company is controlled and directed from the Philadelphia offices, where its control books and records are kept, and to which all of its regional managing agents report. The marketing and distribution of the company’s products are supervised by a vice-president, whose office is at the Philadelphia headquarters and is subdivided within six regions, each of those being further divided into sales districts. The regional offices are situated in Boston, New York City, Philadelphia, Pittsburgh, Detroit and Jacksonville.

The New Jersey business of the company is restricted to distribution and sale of the petroleum products, there being no refinery within the state. There are three district sales offices within the state, at Newark, Trenton and Atlantic City. The Newark office is subordinate to the New York regional office, while the others are subject to the Philadelphia regional office.

The office of the company in Newark is appurtenant to a plant for bulk storage of oils, which stores sufficient quantities to supply the Newark district. The Newark district manager has the same type of authority and duties as each of the other district managers of the company, including those in the Atlantic City and Trenton district offices, consisting mainly of the checking of inventories, collection of sales receipts and their deposit subject to check by the Philadelphia executives, and keeping track of the equipment of the company on lease to retail operators. All questions of the hiring of emploj'es, fixing wages and of prices of the product sold, are controlled by the Philadelphia office. The Newark office, in short, is but a cog in an elaborate distributing mechanism. It is shown to be no different, nor any more important in its essential relationship to the company’s affairs, than the Trenton or Atlantic City offices of the company, although a greater volume of business may possibly be done there than in the other New Jersey offices, as to which, however, there is no proof before us. Although none of its commercial affairs are conducted in Jersey City, other than retail sales of its products there, the statutory office of the company in that taxing district is the onfy office in the state representative of the company as an entirety. In these circumstances, can the Newark office be said to constitute the “chief office” of the corporation, for purposes of fixing the situs for taxation of its intangible personalty ?

The finding of an answer to this question is not facilitated by reference to the undisputed fact that the chief office of the company, in a realistic sense, is not within the state at all. In the case of every domestic corporation, the statute contemplates the existence of a “chief office,” and in a case such as that here presented, literal application of the test laid down by the Supreme Court in Herdman Motor Co. v. State Board of Tax Appeals (Supreme Court, 1937), 119 N. J. L. 164; 194 Atl. Rep. 870, is obviously not feasible. In that case, as between the taxing district where the registered office of the company was situated but no business conducted, and that in which the corporate books and records were kept and most of the actual business was done, the latter was held the “chief office” for tax purposes. On its facts, the case is not an authority for the decision of the present controversy. In two respects, however, the opinion of the court is significant for present purposes. The court stated (at p. 168), as follows:

“We desire, however, to make clear that we are not to be understood as intimating, much less holding, that the ‘chief office of a corporation may not, in a given case, depend upon where the registered or principal office of a corporation is located. It is a matter of proof; and the facts and circumstances of each ease must control.”

A further significant factor in the Herdman case, adverted to at page 165, was the circumstance that the intangible property of the corporation had not been taxed by the taxing district in which the registered office was located. In the present case, however, the City of Jersey City has assessed the intangibles of the company for the years 1937 and 1938, and the 1937 taxes have been paid to that taxing district.

The Herdman decision not being dispositive of this case, we are free to seek authority out of the state. The closest parallel to be found in the reported cases to the situation presently under consideration is that contained in the case of Illinois Water Service Co. v. Champaign County (Sup. Court, Ill., 1938), 367 Ill. 641; 12 N. E. Rep. (2d) 661. That case involved the question as to the domicile within the State of Illinois of a domestic corporation for the purpose of taxation of its capital stock. The statute provided that such stock was to be taxed in the municipality where the corporation’s “principal office or place of business is located.” The charter of the corporation in question listed the City of Heading, in Livingston Coimtjg as its principal office. The company was in the business of supplying consumers in five cities, not including Heading, with water. The general manager of the corporation did most of his business in Champaign, one of the five cities served by the company. Most of the revenues of the corporation were taken in at Champaign and in Urbana. The office in Heading was only nominal. The president of the company, however, resided out of the state, in Charleston, West Virginia, and most of the corporate records, accounts and papers were there kept and maintained. The Supreme Court of Illinois held that Heading, the registered office of the corporation, and not Champaign, where most of the business was done, was the proper situs for the taxation of the capital stock of the corporation. The court said:

“It is apparent that where a corporation does business in .more than one place, the taxing of its capital stock at the place where it does the most business would result in endless confusion and uncertainty. The taxable situs might shift each year. Its principal place of business might be in one county - when it was assessed, and in another when the tax was levied. Business in two counties might be approximately equal, requiring refined calculations to determine which was the taxable situs * *

The same considerations which moved the Illinois court seem to us applicable here. Surely respondent is not to be at peril of sustaining intangible personalty taxes to be assessed by any one or more of the several taxing districts in which one of its co-ordinate branch offices is located, its paramount office being out of the state. It is our view that under the peculiar circumstances here presented, the statutory office, fixed and readily determinable, should be taken to be the chief domestic office of the company for tax'purposes.

We therefore are in accord with the determination made by the Essex County Board of Taxation in this matter, and same will be affirmed.


author: Barison, J.

text:
    Juvenile and Domestic Relations Court of the County of Hudson
    ODIN LAWSON, PETITIONER, v. WILLIAM J. TIGHE, OVERSEER OF THE POOR AND DIRECTOR OF WELFARE OF THE CITY OF UNION CITY, DEFENDANT.
    Decided May 5, 1941.
    Dor the petitioner, Abraham Levine.

    Dor the defendant, Fred Fichmann.

   Barison, J.

The petitioner, Odin Lawson, petitions this court for a summary review and determination of the action of the defendant, William J. Tighe, Overseer of the Poor and Director of Welfare of the City of Union City, in denying the petitioner more and further relief than he is now obtaining.

The proof presented by both petitioner and the defendant is succinctly hereinafter set forth.

The proof submitted by the petitioner shows that he is 35 years old, a citizen of the United States, residing in Union City, Hudson County, married, and lives with his wife and four children, ages two to seven years old: That he has been on public relief in Union City since July 9th, 1935, and has not contributed to the support of his family in the last five years, being entirely dependent on public relief. He is receiving at the present time from the Relief Welfare Department of Union City the sum of $15 per month for rent; $15.15 semi-monthly for food; one-half a ton of coal, $6 monthly; two quarts of milk daily at $8.36 for a 30-day month; electric service allowance of $2.35; occasional shoe orders for $2 adult shoes; and $1.50 children’s shoes; occasional clothing of WPA sewing project’design and quality; medicine and medicál attention.

His proof further shows that for the month of January, 1941, he received $65.77, $2.25 for medicine, and had shoes repaired; for the month of February, 1941, he received $71.85 in relief for rent, coal, milk, medicine and.food, and also received one ton of coal in the month of February when his children were ill and medicine amounting to $2.25, and medical attention rendered by doctors of the City of Union City free of charge; that from the 1st to the 20th day of March, 1941, he received the sum of $62.66 for relief.

The proof submitted by Albert E. Post, manager of the Municipal Service Division of the State Municipal Aid Administration shows that the New Jersey State Standards of relief are based upon surveys made by Eutgers University and other universities, and that there is a variation in relief in the various zones of the state and the state standards are binding upon the state in so far as state aid is concerned. That there are three zones in the State of New Jersey and the City of Union City comes within the classification of zone three. The Overseer or Director of Welfare may give more than prescribed by the standard set by the state, but that the state will not contribute more than its share of the standard fixed. The state standard in this particular case for a wife, husband and four children' would amount to $60.59, divided as follows: food, including milk, $35.24 a month; shelter $14 a month; fuel $8, that would be average, for in July there would be no fuel and at the height of the winter it might be more; electric $2; gas $2.15, if they do not have coal stove; $1.20 a month for incidentals, making a total of $60.59. The state does not contribute for doctors when medical services are rendered to relief patients.

The proof of the defendant, William J. Tighe, Overseer of the Poor and Director of Welfare of the City of Union City, shows that the standard set by the state is the sum of $62.06, divided as follows: for food $30.30, milk $8.36; rent $15; electric $2.40, and $6 coal. Cod liver oil and additional coal was given when requested by the petitioner. There appears to be a discrepancy as to the amount established by the state. However, the amount fixed by the defendant, William J. Tighe, exceeds the amount of state allowance fixed by Albert E. Post, manager of the Municipal Division of the State Municipal Aid Administration.

In addition to the relief hereinabove granted to the petitioner, an overcoat and trousers were given to the petitioner, house dresses for the petitioner’s wife, snow suits, slips, underwear, pillow slips, sheets, towels, overalls, pajamas and blankets for the children; also shirts and shorts and a lumber jacket were given to the petitioner, and all of these items were not charged in the aforementioned amounts given to the petitioner.

The issue before this court is whether or not the defendant, William J. Tighe, Overseer of the Poor and Director of Welfare of the City of Union City should have granted more and further relief to the petitioner than he is presently receiving.

The jurisdiction of the Juvenile and Domestic Eelations Court to summary review the action of the Overseer of the Poor is predicated upon R. S. 1937, 44:1-86; N. J. S. A. 44:1-86, which provides as follows:

Delermñnation by overseer as to persons to be relieved by him. The overseer shall determine who are to be relieved by him, subject to appeal by any person, on at least five days’ notice, to the juvenile and domestic relations court, by petition, in writing, for a summary review and determination by the court of the action of the overseer as to the extent and amount of relief, if any, to be rendered.

The legislature, by R. S. 1937, 44:1-87; N. J. S. A. 44:1-87, imposes upon the overseer of the poor, a duty to inquire into the facts, circumstances, and conditions of a person applying for relief, whether temporary or permanent. Further, he shall ascertain the direct or indirect cause of poverty, and whether the person requiring permanent relief is without home or is without relations who are, by law, required to maintain said person.

The overseer of the poor, upon completion of inquiring into the application for relief, shall grant relief as is provided for in R. S. 1937, 44:1-88; N. J. S. A. 44:1-88, as follows:

Granting of relief. TJpon inquiry as provided in section 44:1-87 of this title the overseer- shall by a written order render such aid and material relief as he may in his discretion deem necessary to the end that the person may not suffer unnecessarily from cold or hunger, or be deprived of shelter. * * * (Italics supplied.)

The statute therefore grants to the overseer of the poor the discretionary power to render such aid and material relief as he deems necessary so that indigent persons may not suffer unnecessarily from cold or hunger, or to be deprived of shelter.

The petitioner’s contention is that the overseer of the poor has abused his discretionary power for'his failure to render more and further relief and by summary review requests this court to determine whether or not there has been an abuse of such discretion. It is a settled rule that the exercise of a discretionary authority will not be disturbed unless palpably abused, i. e., the action taken is arbitrary or capricious. Dulin v. Wich, 120 N. J. L. 469; 200 Atl. Rep. 751.

The proofs submitted to the court show that the overseer of the poor has granted relief to the petitioner in excess of the standards formulated by the State of New Jersey, and in addition thereto, the petitioner also received clothing, medicine and medical attention. Considering all of the proofs submitted both by the petitioner and the defendant, it does not appear that the overseer of the poor acted arbitrarily or unreasonably, and therefore, there has been no abuse of the discretion lodged with him by the legislature of New Jersey.

The petition for summary review is therefore dismissed.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM KRUEGER, PETITIONER, v. MERCHANTS TRANSPORTATION, INC. (EDWARD J. PRAGLER), RESPONDENT.
    Decided May 12, 1941.
    For the petitioner, Peter Kay.

    For the respondent, Ernest Scuorzo.

   *******

The respondent. Merchants Transportation, Inc., admits by way of answer notice and employment but contends such employment was casual. They further deny the wages as alleged and that petitioner suffered any disability either temporary or permanent. This answer further denys employment by Edward J. Pragler individually.

% í|í sj? ^ % %

At the first hearing petitioner testified as to the accident stating that while adjusting some packages on truck which he was driving he caught his foot in a canvass and fell from the truck to the pavement. He lay on the curb for a short time, was dazed and had severe pains in his chest. He drove truck back to respondent’s place of business in Newark and notified one Mr. Pragler, president and manager of the respondent corporation. No medical aid was offered him and he went home. The pain became intense and that same evening he went to Newark City Hospital where he was examined by Dr. Cappiello who strapped petitioner and ordered him to return for X-rays.

X-rays of petitioner were taken October 14th, 1940, reflecting fractures of the ninth, tenth and eleventh ribs on the left side.

Petitioner subsequently was treated by Dr. Max Hummel who discharged him December 14th, 1940.

Petitioner alleges that on day of accident he was paid on the basis of $4 per day and that customary number of working days per week was six.

Dr. Hummel testified as to the treatment he rendered and was of the opinion that petitioner as the result of the accident suffered a permanent disability of 10% of total. Petitioner’s wife testified as to period he was out of work.

The respondent corporation produced as its witness Mr. Pragler, its president and manager. He testified that petitioner was hired during a strike; that employment was only temporary and would not exceed one week. He further testified that earning of petitioner would not exceed $15 per week. The schedule of pay of respondent as testified by witness was $4 per day for driving and $2.50 per day as a helper.

A Mr. Spearer who is employed by respondent corporation corroborated Mr. Pragler’s testimony as to job being of a temporary nature and not to exceed one week.

On February 17th, 1941, Dr. Cappiello appeared and testified as to the examination made by him on October 11th, 1940, and the treatment given. His opinion was that petitioner’s injury was of a temporary nature only and would not exceed four to six to eight weeks.

Briefs were submitted by both sides as well as memorandum relative to alleged erroneous statements in petitioner’s brief.

Questions at issue are:

1. Employment.

2. Pate.

3. Disability.

The determination of the last two are governed by my determination of the first. Was the employment of the petitioner “casual” as defined by the act and interpreted by our appellate courts? The testimony of both petitioner and respondent’s witnesses as to the period for which petitioner was hired is in conflict.

The petitioner testified that it was his understanding that he was hired without stipulation as to duration of job.

Respondent’s, through its president, testimony is that the petitioner was hired for one week as a strike was in progress and a regular employe was absent for that week. This is corroborated by an employe of said respondent.

There appears to be some confusion by the respondent as to the definition of temporary employment and casual employment. They are not synonymous. One can be a temporary employe and still come within the realm of the act. Casual employment is defined, if in connection with employer’s business, as employment the occasion for which arises by chance or is purely accidental or if not in connection with any business of the employer, as employment not regular, periodic or recurring.

Analyzing the contract of hire we find that same was in connection with employer’s business. Prom the cases, and there are many in that instance, it must be chance or purely accidental. Employment brought about by a strike or due to leave of absence does not in my opinion bring same within the category of “chance” or “accident.”

Considering the testimony as well as the holding of our appellate court, I am ruling that petitioner does not come within that employment excluded from the act defined as casual but is entitled to the benefits of the act where the relationship of employer and employe exists which it did in this ease.

As to the rate. There is no question that petitioner on the day of the accident was earning four dollars ($4) per day and that the customary number of working days per week was six (6). He was not a piece worker, therefore, that provision relative to the average earning for six months previous or if not employed for that period then for the period employed does not apply.

The act specifically states that the wage is based upon that sum injured workman was receiving at time of accident exclusive of overtime. Here there is no question of overtime. Therefore, based upon the rate of four, dollars ($4) per day, six (6) days per week the wage would be twenty-four dollars ($24) per week and the compensation rate sixteen dollars ($16) per week. I am so holding.

As to the disability. Stress is laid upon the testimony of Dr. Cappiello who examined the petitioner on the evening of the accident and treated him on one occasion. In his opinion there would be a period of temporary from four to eight weeks and no permanent disability would follow. He did not examine petitioner again. While this doctor did testify for petitioner, and I do not question his sincerity or honesty, yet same was based upon conjecture. To offset his testimony, we have that of Dr. Kummel who subsequently treated and examined petitioner discharging him on December 14th, 1940.

Petitioner had fractures of the ninth, tenth and eleventh ribs on the left side. When discharged he had certain permanent disability including restriction of respiration. Dr. Kummel estimated same as 10% of total.

Prom my experience alone in the determination of these cases, it is a well established fact that fractures of three ribs leaves some residual abnormalities.

I am, therefore, awarding compensation in favor of petitioner and against respondent, Merchants Transportation, Inc.

$ 3* $ $ $ :£ $

As to Edward J. Pragler, individually, there being no testimony that petitioner was in his employ in that capacity petition is dismissed.

$ $ $ $ $ H: $

John C. Wegner, Deputy Commissioner.


text:
    State Board of Tax Appeals.
    ELIZABETH H. POPE, PETITIONER, v. BOROUGH OF RED BANK, RESPONDENT. M. M. DAVIDSON, PETITIONER, v. BOROUGH OF RED BANK, RESPONDENT.
    Decided December 10, 1940.
    For the petitioners, Selick J. Mindes.

    For the respondent, John S. Applegate (by Leon Beussille).

   Quinn, President.

Bespondent moves to dismiss the above-captioned appeals, (1) on the ground that the petitions of appeal do not properly set forth the action of the Monmouth Countj- Board of Taxation, appealed from in each case, and (2) for the claimed reason that petitioners failed to prosecute sufficiently their county board appeals, whereupon, it is argued, the right to appeal to this board is lost.

The petitioners regularly filed petitions of appeal with the Monmouth County Board of Taxation, seeking reductions from the assessed valuations of certain parcels of real property situate in the respondent taxing district for the year 1939. The petitions were drawn on official forms prepared by the county board, which required the usual statement by the petitioner of the description of the property, its assessed valuation, divided between land and improvements, and the figures to which it was sought to reduce the valuations, sworn to as petitioners’ estimate of the true value of the properties. In addition to this data, however, the form expressly required that certain additional information be furnished by the petitioner, failing which, the appeal would not be considered. The petitioners herein made disclosure of the data thus required.

The appeals were set down for hearing before the count}' board on August 18th, 1939. There is a sharp contradiction in the proofs as to what transpired before that body. There is agreement that a Mr. Lazarus, a real estate expert, appeared before the board on behalf of petitioners when the cases were called. Lazarus and another witness testified before us that he was sworn, that he testified to the value of the properties, and requested a reduction of the assessment to conform with judgments of this board upon the properties for the year 1938; that he produced copies of such judgments, but that they were not allowed in evidence by the county board; and that a colloquy ensued as to the amount of insurance on one of the properties. The president and the secretary of the county board, and others on the other hand, testified that Lazarus had appeared before the board, stated that he had been requested to appear by Mr. Mindes, attorney for the taxpayers, but had nothing further to say, being unfamiliar with the property.

On November 1st, 1939, notices were sent by the county board to Mr. Mindes, to the effect that, “Your appeal has been considered by this Board and the valuation of your property has been Affirmed, Appeal dismissed, due to lack of prosecution.” On November 10th, 1939, he wrote a letter to the board, taking exception to the phrase, “due to lack of prosecution,” and expressed willingness to appear before the board and to adduce testimony, if the board were dissatisfied with the appearance made on behalf of petitioners when the case was first heard. No action was taken by the board in this connection. •

The petitions of appeal before this board recite as the action of the county board appealed from, “Valuation affirmed; Appeal dismissed.” This is a sufficient compliance with the requirement of rule IV (a) of this board that the petition recite the action complained of. It was not necessary to add the phrase, “due to lack of prosecution,” contained in the county board disposition of the matters. Verbiage purporting to explain a decision is not a part of the decision proper.

With respect to the second ground of the motions here argued, we find as follows: (a) The course of conduct of the petitioners and their agents, considered as an entirety, from i:he filing of the petitions of appeal through the final communication from Mr. Mindes to the county board, was such as to constitute a prosecution of the appeals, whatever may be said as to the vigor or force with which petitioner’s position was maintained before that board.

(b) The county board judgment was appealable to this board, under either R. S. 54:2-39; N. J. S. A. 54:2-39, or R. S. 54:2-35; N. J. S. A. 54:2-35. The former provides:

“Any appellant who is dissatisfied with the judgment of the county board of taxation upon his appeal, may appeal from that judgment to the state board of tax appeals by filing a petition of appeal to the board, in manner and form to be by said board prescribed, within one month from the date fixed for final decisions by the county boards, and the state board shall proceed summarily to hear and determine all such appeals and render its judgment thereon as soon as may be.” The latter is to the effect that:

“Any action or determination of a county board of taxation may be appealed for review to the state board of tax appeals under such rules and regulations as it may from time to time prescibe, and it may review such action and proceedings and give such judgment therein as it may think proper.”

Under either or both of these sections, the action of the county board, viewed either as an affirmance of the assessments, or as a dismissal of the appeals, was appealable to this board, and an appeal brings the entire asesssment, de novo, before this board, and not merely any special aspect thereof to which the county board may have confined its attention. Public Service Railway Co. v. Weehawken, New Jersey Tax Reports, 1912-1934, p. 407. The jurisdiction of the state board extends not only to meritorious questions involved in county board determinations, but also to defects in jurisdiction of the county bodies. Borough of Oradell v. State Board of Tax Appeals (Court of Errors and Appeals, 1940), 125 N. J. L. 37; 13 Atl. Rep. (2d) 479. See, also, Eleventh Ward Building and Loan Association v. Plainfield, New Jersey Tax Reports, 1934-1939, p. 307.

The directions in the statute to county boards, requiring the holding of hearings in appeals before them, R. S. 54:3-22, are for the protection of the parties only, and in our opinion, may be waived by a party appellant, if he is content to rest his case before the county board upon his petition, containing his sworn statement as to the true value of the property under appeal, together with such other information as to the property as the county board may require to be endorsed upon the petition, as in this case.

County tax boards are presumably intimately conversant with local real property valuations. See State, Weehawken v. Roe (Supreme Court, 1872), 36 N. J. L. 86 (at p. 88). If a petitioner is content to rely upon that knowledge and the contents of his petition, and to forego a hearing, there arises no jurisdictional bar to the entry by the county board of a determination appealable, in turn, to this board, under either of the sections cited hereinabove.

For the reasons stated, the motions to dismiss are denied and the cases ordered placed upon the day calendar for hearing.


author: Rosenstein, J.

text:
    Second District Court of the City of Paterson.
    LaSALLE EXTENSION UNIVERSITY, A BODY CORPORATE, PLAINTIFF, v. JAMES B. BARR, DEFENDANT.
    Decided May 22, 1941.
    Por the plaintiff, Horton & Tilt (Andrew Mainardi and A. Leon Kohlreiter, oi counsel).
    Por the defendant, Henry Riccobene.

   Rosenstein, J.

This action is upon a judgment rendered more than twenty years before the commencement of this action, but upon which judgment payments were made, the last being less than twenty years before such commencement. The solo question involved, therefore, is whether partial payment of a judgment operates to toll the statute of limitations. This question has not been decided in this state, and other jurisdictions, that have passed upon it, are divided.

Payment on a judgment debt suspends the running of the statute of limitations in Arkansas, Kentucky and New York. Lindsay v. Merrill, 36 Ark. 545; Koontz v. LaDow, 133 Id. 523; 202 S. W. Rep. 686; White v. Moore, 100 Ky. 358; 38 S. W. Rep. 505; In re Murray’s Estate (Court of Appeals, N. Y., 1936), 5 N. E. Rep. (2d) 717.

On the other hand, partial payment of a judgment does not suspend the running of the statute in Minnesota, North Carolina, or Ehode Island. Olson v. Dahl, 99 Minn. 433; 8 L. R. A. (N. S.) 444; 109 N. W. Rep. 1001; Hughes v. Boone, 114 N. C. 54; 19 S. E. Rep. 63; McDonald v. Dickson, 87 N. C. 404; McCaskill v. McKinnon, 121 N. C. 192; 28 S. E. Rep. 265; Garabedian v. Avedisian, 42 R. I. 78; 105 Atl. Rep. 516.

The conflict in the decisions as to whether the running of the statute of limitations is suspended in the case of judgments by payments on account thereof is due to the difference of opinion as to whether a judgment is a contract within the rule that payment on account of a contract tolls the statute. The better reasoned cases seem to be those holding that a judgment is not such a contract.

In Morley v. Lake Shore and Michigan Southern Railroad Co., 146 U. S. 162; 13 Sup. Ct. 54; 36 L. Ed. 925, the Supreme Court of the United States held that a judgment is not a contract within the meaning of the constitutional provision invoked by the appellant and pointed out that the most important elements of a contract are wanting. Far from having any meeting of the minds, the judgment is entered in invitum.

In Garabedian v. Avedisian, supra, the Supreme Court of Rhode Island held that a judgment is not a contract and that it could not be revived by a partial pajunent.

In Olson v. Dahl, supra, the court said: “It is not at all difficult to demonstrate theoretically at least, that a judgment is a contract. Blackstone makes the statement in his Commentaries that it is, and some of the authorities, following in line with his theory, have classed it with specialties. 3 Bl. Com. 160; Sawyer v. Vilas (1845), 19 Vt. 43. But a practical consideration of the question in the light of the essentials to the existence of valid contract relations leads to the contrary conclusion. In fact, the weight of authority, both in England and this country is to the effect that a judgment is not a contract in any proper sense of the term.”

Even New York, which holds that a payment on account of a judgment will, suspend the running of the statute of limitations, concedes that a judgment is not a contract. Jennings v. Loucks et al., 297 N. Y. Supp. 893.

It is well, therefore, to look into the history of the doctrine that partial payments suspend the running of the statute of limitations, in order to determine whether such payments suspend the operation of the statute in connection with payments on account of a judgment debt. This history is well set out in Olson v. Dahl, supra:

“Chapter 16 of the Acts of Parliament of the twenty-first year of James I is the foundation of all statutes of limitations, both in England and this country. That act contained no exceptions preventing the operation of the statutes in cases where a new promise or acknowledgment of indebtedness, or part payment, was made by the debtor. The limitations of time within which actions were required to be brought were absolute. On the theory that the statute created simply a presumption of payment, or served only to extinguish the remedy of the creditor, the courts of England judicially ingrafted thereon an exception, to the effect that a new promise or part payment of the debt revived the cause of action and set the statute running anew. This interpretation of the law led to Lord Tenterden’s Act (9 Geo. IV, ch. 14), by which it was enacted that no new promise should be sufficient to take the case out of the operation of the statute, unless in writing signed by the party to be charged; further providing that the effect of part payment, which the courts had held-operated to revive, should not be changed by that enactment. The purpose of that act was to put a limitation upon the rule ingrafted upon the original statute by the courts, by requiring the new promise, which the courts held sufficient to toll the statute, to be in writing. The act did not create the rule, but simply recognized its existence and limited or restricted its application or operation. Thus the law came to this country, and a statute similar to Lord Tenterden’s Act is found upon the statute books of nearly all, if not all, of our states. Section 4086, Rev. Laws, 1905, was taken from that act. The new promise or part payment has never, however, been applied to actions in tort, or those founded upon specialties. The rule has been confined to contracts, express or implied, for the payment of money. Where actions in tort or upon specialties are required to be brought within a specified time, no part payment or promise to pay will operate to suspend the operation of the statute, or remove the bar when it has once attached. Wood, Limitations (3d ed.) § 66. The theory of .the courts in this respect is that, as to such obligations, the action is not, and cannot be, founded upon promise, either express or implied, but must, in the nature of things, be either in debt or covenant; therefore a new promise or part payment will not continue the right of action.”

See, also, Parker v. Butterworth, 46 N. J. L. 244.

A careful reading of the New Jersey statute dealing with limitations of actions, Title 2, chapter 24, Rev. Stat. of N. J., 1937, will disclose that the legislation in this state bears the imprint of the historical process outlined in Olson v. Dahl, supra. Thus, Title 2:24-1 to 3 and 5 and 6 deal with the several periods of limitations applicable to the respective ■cases therein enumerated. With the exception of one of the provisions mentioned in Title 2:24-5, which will be hereafter more particularly dealt with, these several sections deal only with the limitations of time within which actions are required to be brought and are absolute in their terms. The matter of new promise or payment is dealt with in Title 2:24-9, which does not purport to make exceptions to the statute, but to recognize the exceptions that had been ingrafted upon the ■statute by the courts. Thus, that section provides that, as to a new promise, the acknowledgment shall not be sufficient evidence where it is simply oral, but that to take, the case out of the operation of the statute, it must be in writing and be signed by the party to be charged thereby. Likewise, this section, recognizes the exception ingrafted upon the statute in the case of part payment. “This section shall not be construed to take away, lessen or alter the effect of any payment of principal or interest made by any person on the obligation in suit.”

But this section, namely, Title 2:24-9, which recognizes the tolling of the statute by part payment, refers, by its specific terms, to “actions in the nature of actions of debt' or upon the case grounded oh any simple contract.” Accordingly, this section does not apply to a judgment, for a judgment is not included within its terms. If there be any question that a judgment would still be within the terms of this section, either because an action upon it is an action in the nature of an action of debt, or is an action upon the case grounded on any simple contract, the answer is that the legislature has expressly, in Title 2:24-l indicated that “All actions in the nature of * * * actions in the nature of debt, founded upon a lending or contract without a specialty or for arrears of rent due on a parol demise * * * actions in the nature of actions upon the case * * * shall be commenced within six years next after the cause of any such action has accrued, and not thereafter.” Obviously, therefore, the legislature was not referring to an action on a judgment, because the legislature expressly reserved judgments to a separate section, to wit, Title 2 :24-6, in which it was provided that “A judgment in any court of record in this state maj be revived by scire facias or an action at law may be brought thereon within twenty years next after the date thereof.”

Moreover, it will be noted that what is being sought in this court is to revive a judgment by an action at law. The section of the statute just quoted states that such action may be brought within twenty years next after the date thereof. But the present action is being brought more than twenty years thereafter, for which the section last quoted gives no warrant, nor does Title 2 :24-9 for the reasons hereinbefore set forth.

My attention has been called by the plaintiff to the case of Jennings v. Loucks et al., supra, which the plaintiff strongly urges as being in point with this case. It is true that that case decided that a payment on account of a judgment tolls the statute of limitations in such case as well as upon an ordinary contract debt. It is to be noted, however, that in New York State, section 44 of the Civil Practice Act provides expressly that the presumption of payment of certain judgments is conclusive, “except as against a person, who within twenty years makes a payment or acknowledges an indebtedness.” While it is true that that section does not apply to a judgment of an inferior court, and the action in Jennings v. Loucks, supra, was an action upon a judgment of an inferior court, the court based its conclusion upon the fact that “it [section 44, Civil Practice Act] indicates the view of this state as to the effect between the parties of a payment on a judgment.”

In New Jersey, on the other hand, the statute makes no provision that payment or acknowledgment of an indebtedness within twenty years shall be an exception to the presumption of payment after twenty years.

The fact is that the New Jersey statute, by implication, seems to say exactly the opposite, and this for the reason that in Title 2:24-5, the section immediately preceding that dealing with limitations of actions on judgments, the legislature provided that in actions upon a lease under seal, specialty or award under seal of arbitrators, actions must be commenced within sixteen years after the accrual of such cause of action, but that, “If, however, any payment is made on any such lease, specialty or award within or after such period of sixteen years, an action thereon may be commenced within sixteen years next after such payment, and not thereafter.” It is significant that in the next section immediately following this, to wit, Title 2:24-6, the legislature provided that a judgment might be revived by scire facias or an action at law brought within twenty years next after the date thereof, but makes no mention that payment thereon shall be the period from which the twenty years shall run.

Tor the reasons above stated, judgment will be entered in favor of the defendant.


author: Hartshorne, C. P. J.

text:
    Essex County Court of Common Pleas.
    FRED C. EHNES v. ROGER N. GENERAZZO.
    Decided June 6, 1941.
    For the petitioner (defendant), Salvatore A. Simeone.

    For the respondent (plaintiff), Jacob J. Greenman.

   Hartshorne, C. P. J.

Plaintiff has garnisheed defendant’s salary as a public school teacher, under an execution obtained on a judgment in the Essex Common Pleas. Defendant moves to set aside the garnishment, claiming that the judgment in question has been d ischarged by defendant’s discharge in bankruptcy February 3d, 1940, subsequent to the judgment. This, plaintiff denies, asserting that his claim is excepted from defendant’s discharge in bankruptcy, as a “liability for obtaining money or property by false pretenses or false representations.” (Bankruptcy Act, section 17, as amended June 22d, 1938, U. S. C. A., Title 11, § 35.)

To this, defendant counters that plaintiff, by his failure during the bankruptcy proceeding to set up the fraud, is estopped to do so now. Extraneous evidence, clearly showing such false representations by defendant, was offered by plaintiff without objection by defendant.

The questions, therefore, are (1) whether plaintiff is estopped, as above, to set up defendant’s false representation, and if not (2) whether defendant’s liability to plaintiff on the judgment in question is one “for obtaining money or property by false pretenses or false representations.”

As to the first question, the authorities are clear to the effect that the mere listing of one as an unsecured, ordinary, non-judgment creditor, does not estop the creditor, even after the discharge, from proving that the debt was procured by fraud. (Railroad Employes’ Personal Loan Co. v. Dillon, 123 N. J. L. 31; 7 Atl. Rep. (2d) 858; Friend v. Talcott, 228 U. S. 27.)

And, if a judgment creditor, the character of the judgment may be proven, as shown below. Indeed, this is made doubly clear by the form of the bankruptcy discharge itself, which expressly excepts “such debts as are by law excepted from the operation of a discharge in bankruptcy.”

As to the second question, neither the form of the judgment itself,' nor that of the complaint, is finally determinative. (Freedman v. Cooper, 126 N. J. L. 177; 17 Atl. Rep. (2d) 609.) The record may be resorted to, in order to determine the primary nature and real foundation of the cause of action upon which the judgment, i. e., the liability, is based. Paterson v. Smith (Vt.), 47 Atl. Rep. 1088.) But since it is here the judgment which is the liability that was provable in bankruptcy, facts immaterial and extraneous to the judgment should not be considered. Both parties, by their previous litigation, resulting in the judgment, have made res judicata the character of the liability established by it. They may not n'ow be permitted to go beyond the issues then and there settled, and change the character of this liability, as here, from one in contract, to one of a peculiar tort nature, by the proof of facts never alluded to when the judgment was taken. To do so would be quite contrary to the general principles of res judicata. (Thompson v. Judy (C. C. A., 6th Cir.), 169 Fed. Rep. 553.)

Here, for instance, the record shows the judgment in question to have been obtained on a bond and warrant of attorney, executed by defendant under, and subsequent to, his promissory note, the basis of the judgment, and without the slightest allusion to any false representation. The creditor himself did not set it up, presumably in order to speed obtaining the judgment.

Moreover, these general principles would seem to accord with the intention of the Congress in the pertinent provisions of the Bankruptcy Act, as repeatedly amended. In 1867, section 33 (now section 17) of the Bankruptcy Act excepted from the operation of a discharge, “debts created by fraud.” Thereunder the fact that the debt had been created by fraud was the criterion, and not the form of the pleadings, or the primary nature of the cause of action on which the judgment was based. In 1898, the provision was changed to except from discharge “judgments in actions for frauds or obtaining money by false pretenses or false representations.” Thereunder the test was not the actual fraud of the defendant, but whether such fraud constituted “the basis of the right to judgment.” (Barnes Manufacturing Co. v. Norden, 67 N. J. L. 493; 51 Atl. Rep. 454; Barnes Cycle Co. v. Haines, 69 N. J. Eq. 651; 61 Atl. Rep. 515.)

In 1903, the language in question was changed to except from discharge “liabilities for obtaining property by false pretenses or false representations * * This change was clearly made to permit the inclusion thereunder of claims which had not yet ripened into judgments. (Smith & Wallace Co. v. Lambert, 69 N. J. L. 487; 55 Atl. Rep. 88; Thompson v. Judy, supra.)

Its purpose was not to overturn the ordinarily conclusive effect oí a liability founded upon a judgment, as above alluded to. This clearly appears from the fact that the Congress did not revert to its original language, exempting from discharge “debts created by fraud,” and from the further fact that Congress retained in the same section, as non-dischargeable, debts “created by,his [the bankrupt’s] fraud * * * while acting as an officer or in any fiduciary capacity.”

In short, in dealing with the ordinary bankrupt, not an officer or a fiduciary, extraneous evidence is admissible to show that his liability is one “for obtaining money or property by false pretenses or false representations,” except where this liability has been already adjudicated. In this event, under the principles of fes judicata, the issues as so determined are established conclusively, and evidence extraneous to the record of the judgment is inadmissible. Damato v. Ambrose, 122 N. J. L. 539; 6 Atl. Rep. (2d) 189, is not to the contrary. The court here expressly leaves the question open as to the effect of the judgment as res judicata. And the Damato case is cited in the later case of Freedman v. Cooper, supra, holding that the inquiry under the judgment is as to “the act upon which recovery was had.”

Whether, accordingly, plaintiff here is debarred from proceeding further against defendant for his deceit (as in Feldmesser v. Lemberger (Court of Errors and Appeals), 101 N. J. L. 184; 127 Atl. Rep. 815, and Gehlen v. Patterson (N. H.), 141 Atl. Rep. 914), is not before this court, and need not now be determined.

The present wage execution, levied against defendant’s wages, will therefore be vacated.


author: Giordano, C. P. J.

text:
    Monmouth County Court of Common Pleas.
    J. LEONARD GREIF, PETITIONER-APPELLEE, v. BETSY ROSS ICE CREAM CO., RESPONDENT-APPELLANT.
    Decided June 11, 1941.
    Por the petitioner-appellee, Fleming & Poller (by Russel Fleming).

    Por the respondent-appellant, Reid, Kelly & Flaherty (by Kdwin J. O’Brien).

   Giordano, C. P. J.

This appeal involves the construction of chapter 280, Pamph. L. 1931, now known as R. S. 34:15-51; N. J. S. A. 34:15-51, and specifically whether the payment of a medical hill by an employer constitutes an agreement to pay compensation so as to toll the running of the time for filing a petition for compensation.

The petitioner sustained a compensable accident on September 1st, 1938. No compensation for temporary or permanent disability was paid or demanded by the petitioner. On January 11th, 1939, at the request of petitioner, respondent reimbursed him in the sum of $25, the cost of a surgical belt and on February 6th, 1939, the petitioner was reimbursed in the sum of $9.19, the cost of bandages and adhesives. The petition in question admittedly was not filed until October 4th, 1940, more than two years after the occurrence of the accident, but within two years of the time the respondent reimbursed petitioner for the cost of the surgical belt.

The Workmen's Compensation Law is social legislation and should so he treated. It is remedial in nature and its basic principle is indemnity. The theory is that compensation is one of the necessary expenses of the business against which the employer must protect himself. The act is a declaration by the legislature of a public policy and the fundamental basis under the procedure of the Workmen’s Compensation Act rests upon a contract between employer and employe either by express or implied consent, and to warrant a recovery under the act it must appear that the injury was caused by accident, which for the purpose of this appeal is no't disputed; that the accident arose out of the employment, which here is not disputed and that the accident arose in the course of the employment which is also not disputed.

The question presented is one of law. The pertinent provision of the Compensation Act involved and the particular part of R. S. 34:15-51; N. J. S. A. 34:15-51, which calls for an interpretation reads as follows:

“Every claimant * * * shall * * * file a petition in duplicate with the secretary of the bureau in his office, at the state house, in Trenton, within two years after the date on which the accident occurred, or in case an agreement for compensation has been made between the employer and the claimant, then within two years after the failure of the employer to make payment pursuant to the terms of such agreement; or in case a part of the compensation has been paid by the employer, then within two years after the last payment of compensation. Any payment made in accordance with the provisions of article 2 of this chapter (R. S. 34:15-7 et seq.; N. J. S. A. 34:15-7 et seq.) shall constitute an agreement for compensation.”

Prior'to the enactment of the foregoing amendment our courts repeatedly held that medical aid did not constitute an agreement for compensation, and such payment, of course, had no effect upon extending the jurisdictional limitation.

The legislature by the passage and the adoption of the amendment in question broadened the scope of the act by substituting the word any payment or payments in the place of the word a payment or payments. By virtue of the amendment, R. S. 34:15-51 is now in complete harmony with R. S. 34:15-14, 34:15-15 and 34:15-16; N. J. S. A. 34:15-14, 34:15-15 and 34:15-16, and should be so treated.

When the Workmen’s Compensation Law was first enacted it contained no time limitation on filing original claim petitions, and an award could be reviewed for changing in disability any time after expiration of one year from its making. Pamph. L. 1911, p. 143; Pamph. L. 1913, ch. 174, p. 314, first introduced a statute of limitations requiring that a claim petition be filed within one year from the date of .accident. In 1918 (Pamph. L. 1918, ch. 149, p. 431, § 5), the statute was amended so that it ran not only from the date of the accident but also from (1) the failure of an employer to pay pursuant to agreement between himself and the employe, and (2) “in case compensation has been paid by such employer, then within one year after the last payment of ’compensation.” Pamph. L. 1921, ch. 229, p. 731, further amended the statute by providing that part payment of compensation, also, would renew the running of the statute.

Since the passage of R. S. 34:15-51; N. J. S. A. 34:15-51, the inquiry is whether or not this provision changed the scope of inquiry in determining whether a payment had tolled the statute. Under prior acts the problem had been whether payment for medical treatment was a “payment of compensation.” Uow the inquiry is whether the payment is one which the employer is obligated to make under the provisions of the act dealing with elective compensation. Substitution of the word “any” for the word “a” merely serves to emphasize this fact. The purpose of the legislature in making this substitution is apparent. The provisions of a consolidated act must be considered as expressing a legislative intent to which the courts must give effect. State v. Hoffman, 71 N. J. L. 285; 58 Atl. Rep. 1012.

“A modification of the law was indubitably contemplated. This fairly is to be presumed from the change in phraseology. There is a presumption against useless legislation. A change in the language of a statute, especially after it has had a settled judicial construction, ordinarily implies a purposeful alteration in substance.” Tucker v. Frank J. Beltramo, Inc., 117 N. J. L. 72; 186 Atl. Rep. 821 (subsequently affirmed by the Court of Errors and Appeals, per curiam, 118 N. J. L. 301; 192 Atl. Rep. 62).

The courts have held the 1937 revision to be newly enacted legislation. Messler's Estate, 16 N. J. Mis. R. 434; 1 Atl. Rep. (2d) 322; Saslow v. Previti, 17 N. J. Mis. R. 29; 3 Atl. Rep. (2d) 811; Deluca v. Bodman, 17 N. J. Mis. R. 1; 4 Atl. Rep. (2d) 774.

In the case at bar the employer was unquestionably obligated under the statute to furnish the employe with medical treatment and to pay for it. (R. S. 34:15-15; N. J. S. A. 34:15-15.) And it can not be doubted that payment for medical treatment furnished constituted payment under article 2 of the act. Clearly, the intent of the legislature can not be effectuated except by considering payment for medical treatment as tolling the statute. The section under consideration is not, like other statutes of limitation, merely a statute of repose, and although the respondent argues in its brief that the case of Smith v. Klemm, reported in 118 N. J. L. 471; 193 Atl. Rep. 790, is dispositive of the issues herein, the court is of the opinion that these issues have never been passed upon since the enactment of the Eevision of 1937 and that no such determination of the issues here involved can be inferred from the decision rendered in re Smith v. Klemm. It is not applicable and it is not dispositive.

It is the opinion of this court that the rendition of medical treatment is an integral part of the humane intention of the legislature to give to employes the protection required under •the exigencies. Medical treatment is as much a part of the compensation as the monetary award and a contrary interpretation would be inimicable to the whole theory of this social legislation.

I am of the opinion that the payment of the medical bills by the respondent constitutes an agreement to pay compensation so as to toll the running of the time for filing the petition for compensation, and I so construe chapter 280, Pamph. L. 1931, now known as R. S. 34:15-51; N. J. S. A. 34:15-51, and accordingly, affirm the judgment of the court below.