author: Pebskie, J.

text:
    JAMES S. RAFFERTY, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF HENRY L. WILSON, DECEASED, PLAINTIFF, v. PUBLIC SERVICE INTERSTATE TRANSPORTATION COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY; ARTHUR THOMPSON SHIPLEY AND BURRITT G. FLEMING, DEFENDANTS. JAMES J. CURRAN, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF FREDERICK G. FLEMING, DECEASED, PLAINTIFF, v. PUBLIC SERVICE INTERSTATE TRANSPORTATION COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, AND ARTHUR THOMPSON SHIPLEY, DEFENDANTS.
    Submitted May term, 1936
    Decided July 30, 1936.
    Before Bbogan, Chief Justice, and Justices Case and Pebskie.
    Por the plaintiffs, John J. Rafferty and Philip Blacker {Edmund A. Hayes, of counsel).
    Por the defendants, Henry H. Pryling and Carl T. Freggens {Henry J. Sorenson, of counsel).
   The opinion of the court was delivered by

Pebskie, J.

Both plaintiffs sued in a representative capacity; Bafferty for the death of Henry L. Wilson and Curran for the demise of Frederick G. Fleming. Both decedents were occupants of a Chevrolet automobile which became involved in a collision with a passenger bus owned by defendant Public Service Interstate Transportation Company, and operated by its employe, Arthur Thompson Shipley, the other defend an t.

The accident occurred on June 27th, 1932, at or about Deans Lane, on state highway route No. 26, which is near New Brunswick, New Jersey. Decedents were en route to Trenton, New Jersey, and were traveling in a westerly direction and defendants were en route to New Brunswick and were traveling in an easterly direction.

The resultant verdicts of the first trial in favor of Wilson’s estate ($20,000 against Public Service, &e., and $1,000 against Shipley) and in favor of Fleming’s estate ($12,000 against Public Service, &c., and $1,000 against Shipley) were set aside by the trial judge on the ground that the jury, contrary to instructions, arbitrarily and illegally apportioned the degree of each defendant’s negligence, and on that premise apportioned the verdicts against each defendant. Accordingly, the rules to show cause were made absolute and a new trial granted both as to liability and damages.

The causes were re-tried. The jury returned a verdict against both defendants of $20,000 in favor of the estate of Henry L. Wilson and a verdict of $5,000 in favor of the' estate of Frederick G. Fleming.

In due season, application was made to the trial judge, m behalf of the defendants, for rules to show cause why the verdicts, as last stated, should not be set aside and a new trial granted. The grounds upon which that application was made to rest were that the verdicts were contrary to the weight of the evidence and that the damages were excessive. The application was denied; the trial judge so certified. On application to Part II of this court the rules to show cause now before us were allowed.

The grounds urged upon the trial judge below are again stressed here in support of the claim that the verdicts should be set aside.

First: Are the verdicts contrary to the weight of the evidence? We think not. “* * * It is the settled rule that a verdict will not be set aside, as against the weight of the evidence, unless the facts and circumstances clearly sustain the inference that it was the result of mistake, passion, prejudice or partiality. Boesch v. Kick, 97 Id. 92; Queen v. Jennings, 93 Id. 353; Floersch v. Donnell, 82 Id. 357. And, in the determination of this question, the conclusion of the trial judge will be accorded due consideration; for he, through observation of the witnesses, may the better judge of their credibility.” Juliano v. Abeles, 114 N. J. L. 510, 511; 177 Atl. Rep. 666.

There was a sharp conflict in the proofs as to just how and exactly where the accident occurred. It will serve no useful purpose to detail the proof adduced by each of the parties on the factual situation presented. Suffice it to say, in substance, that each party offered proof to place the responsibility for the collision on the other party; each offered proof to establish that the other party negligently and carelessly left his proper lane of travel as a result of which the accident occurred.

Thus a purely factual situation was presented, one which of necessity, had to be submitted to the jury for its determination. Although a contrary result could unquestionably have been supported, nevertheless, these proofs adduced fully support the result reached. It seems to us that defendants have failed to sustain clearly the necessary burden that the jury’s verdicts were the result of mistake, passion, prejudice or partiality.

Second: Are the verdicts excessive? We think not.

As to Henry L. Wilson. Decedent was thirty-three years of age at the time of his death. He had an expectancy of life of thirty-two and one-half years and enjoyed good health prior to his death. He was, and had been for three years prior to his death, an instructor of English at Temple University in Philadelphia, Pennsylvania; he earned $2,800 a year, about one-half of which went to the support of his widow who was about thirty-two years old. The proof of Professor Lawrence C. Lockley, head of the department of marketing at Temple University, and a member of the executive committee of the school of commerce, who, among other things conferred with the dean on school personnel, appraisal and capability and worth of various members of the faculty, discloses that decedent was a “very capable and conscientious instructor” that his work as a teacher in the classroom was “very effective.” Decedent was doing graduate work and it would have taken him probably another year to complete his work for a decree of doctor of philosophy at the University of Pennsylvania. The students of Temple University were devoted to him; they named a club interested in writing after him.

For defendants it is strongly argued that if the award is viewed from an income basis the principal ($20,000) invested at six per cent, will return a yield to the widow almost equivalent to the contribution she received from her husband during his lifetime and at the same time she will have the principal intact. This, it is claimed, renders the verdict excessive. That claim is based on Michaelson v. Erie Railroad Co., 7 N. J. Mis. R. 117; 144 Atl. Rep. 187. That case is clearly distinguishable. The decedent was forty years old, a laborer, unloading poles at the time of his death and earning about $57.50 a week (1929 wages). Eo proof appears as to his prospective increase of earning power and yet all the court did was to reduce a verdict of $46,800 to $25,000. Moreover, there is no proof in the case at bar that the capital fund can be safely invested to produce a yield of six per cent. Common experience is now to the contrary. Eor is there any proof that the widow will, at the same time, have the principal intact. Again, common experience teaches us that there is, after a deduction of costs and fees incident to litigation, a substantial difference between the amount recovered and the amount actually received by the successful litigant. In addition thereto the proofs in the instant case fully justify the deducible inference that decedent had reasonable prospects of advancement in life and of increase in earning power. Rhodehouse v. Director-General, 95 N. J. L. 355, 362, 363; 111 Atl. Rep. 662. In the Rhodehouse case decedent was an employe of Eogers & Peet Company, earning $42 a week. At the end of the year he received a bonus of $100 and his salary was to be raised to $50 a week. He was forty-one years old at the time of his death; he had an expectancy of life of twenty-seven years. The court said:

“* * * We cannot say that the jury in awarding $25,000 speculated wrongly on the chances oí life that the decedent had and on his increase of earning power and advancement in life and his remaining in good health and being industrious and kind to his family, and that he would continue to turn over his earnings, as was his custom. As we are unable to say that the amount awarded is the result of sympathy, mistake, passion or prejudice, we cannot properly interfere with the verdict. Bowes v. Public Service Railway Co., 94 N. J. L. 378; 110 Atl. Rep. 699.”

The verdict here of $20,000 is not excessive.

As to Frederick G. Fleming. Decedent at the time of his death was twenty-one years old; his expectancy of life was forty-one and one-half years. He also had good and reasonable prospects of advancement in life and of an increase in earning power. He was graduated from high school in 1929. Thereafter he had jobs with the Curtis Wright Airplane Company, Transcontinental Western Air Company and Eolling Door Corporation, with some as an apprentice and with others as a junior mechanic. His earnings were not large but there is proof that he contributed toward the support of his next of kin. He was of good health prior to his demise. He was enrolled for the second year (at the time of his death) in the mechanical engineering department at Ohio State University.

We have held that, “jurors are of course entitled to know and consider the talents, abilities and personal appearance of deceased in order to guide them in assessing the amount of the damages as to pecuniary loss.” Smiley v. Reid Lee Cream Corp., 5 N. J. Mis. R. 82; 135 Atl. Rep. 504. In the Smiley case a verdict of $5,000 for the death of a girl eight years and eleven months old was held, in view of her appearance and capabilities, not to be excessive.

In Kopko v. New York Live Poultry Trucking Co., 3 N. J. Mis. R. 498; 128 Atl. Rep. 870, a verdict of $19,500, reduced to $15,000 for the death of a boy twelve and one-half years old was sustained.

The verdict here of $5,000 is not excessive.

The rules to show cause are discharged, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ELLA MILLER ARMSTRONG, PETITIONER-PROSECUTRIX, v. UNION COUNTY TRUST COMPANY, RESPONDENT-DEFENDANT.
    Submitted May term, 1936
    Decided July 31, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    Por the prosecutrix, Edwin Joseph O’Brien.

    Por the defendant, Collins <& Corbin (Edward A. Markley and Charles W. Broadhurst, of counsel).
   Per Curiam.

The writ of certiorari herein brings up for review a judgment of the Union County Common Pleas Court, reversing a determination of the workmen’s compensation bureau by which compensation was awarded to the widow and children of the deceased employe.

John C. Armstrong met his death while he was in the employ of the Union County Trust Company. He was employed, generally, as a utility man in the bank and, at the time he met with the fatal accident, was probably engaged in the work for which he was employed. At the particular time he had been directed to go into the cellar of the building occupied by the bank, to scrape some paint off a glass door. He was found lying on the floor with a fracture of the skull. There was a severe contusion of the left eye and temple and evidence of hemorrhage in the middle ear.

Petitioner proved the facts of the employment; that the injuries suffered by her husband happened during the course of his employment, but was not able to produce any proof as to how the happening occurred.

The employer offered no testimony whatever before the compensation burean but moved for a dismissal of the petition when the petitioner rested her case. The deputy commissioner found in favor of the petitioner and awarded compensation. On appeal, the judge of the Union County Common Pleas Court concluded that the petition should be dismissed because there was “no proof of an accident arising out of the decedent’s employment.” The court’s finding was based on the opinion of this court in the case of Nardone v. Public Service, &c., Co., 113 N. J. L. 540; 174 Atl. Rep. 745. We, too, are bound by the holding in that case. The judgment in that case, however, was not carried by appeal to the Court of Errors and Appeals. The Kardone case is therefore dispositive of the question before us.

The judgment of the Union County Court of Common Pleas is affirmed, and the writ dismissed, with costs.


author: Pee Cueiam.

text:
    PIETRO ROSELLE ET AL., PROSECUTORS, v. BOROUGH OF VERONA, DEFENDANT.
    Submitted May 15, 1936
    Decided August 12, 1936.
    Before Justices Parker, Lloyd and Donges.
    Eor the prosecutor, Thomas Brunelto.

    Eor the defendant, Charles Jones.

   Pee Cueiam.

This is a rule to show cause why a writ of certiorari should not issue to review a resolution of the borough of Verona, adopted April 7th, 1936, providing for advertising for bids for the borough’s scavenger contract for a period of either five or three years. The resolution ■ provided, inter alia, “Bidders’ forms will only be given out to those bidders who have executed a form of questionnaire relating to financial responsibility and experience filed in the office of the Borough Clerk and satisfactorily passed upon by the Committee on Garbage and Ashes of the Borough Council.”

Prior to the adoption of this resolution, the borough had advertised for bidders to apply for the questionnaire and in response to this advertisement eight prospective bidders had submitted answers to the questionnaire. The committee on garbage and ashes on April 7th, 1936, orally reported to council that it had gone over the answers and approved the qualifications as bidders of only two, C. Egan & Sons and Anthony Salerno. By motion, council approved this report. It appears that no formal resolution was adopted stating who were and who were not found to be qualified bidders. The resolution adopted merely contained the above quoted language adopting the oral finding of the committee.

The prosecutors, three of the unsuccessful applicants and a taxpayer in the municipality, promptly applied for a writ, after being denied a hearing on their fitness, and have dili-‘ gently pursued this action.

Attack is made on the fairness and legality of the questionnaire. Question 6 was as follows:

“Have you been actively engaged,'at some time within the past ten years, in at least a three-year scavenger contract, with a municipality having a population equal to or greater than the borough of Verona, New Jersey, according to the terms of which you were required to collect and remove garbage, ashes and refuse from the rear of all properties in the municipality and dispose of the same outside the limits thereof?”

It was testified that a negative answer to this question was, in some cases, one of the reasons for disqualification despite the fact that the applicant had experience in smaller municipalities or had experience in removing refuse from the curb, rather than the rear of the properties.

Other questions dealt with the state of the title to the land on which it was proposed to dump the garbage, mortgage liens thereon, whether there was default in such mortgage, and whether taxes were paid or not.

We are of the opinion that a debatable question has been raised as to the reasonableness of this far-reaching questionnaire and as to the action of the governing body in the course of conduct it adopted.

A writ is allowed.


author: Per Curiam;.

text:
    MICHAEL A. SAGARESE, RELATOR, v. ALBERT H. HOLLAND, JUDGE, ET AL., RESPONDENTS.
    Submitted May 5, 1936
    Decided August 12, 1936.
    Before Justices Parker, Lloyd and Donges.
    For the relator, Michael A. Sagarese, pro se.

    For the respondents, Xing & Yogi.

   Per Curiam;.

By this proceeding relator seeks a peremptory writ of mandamus to compel the Common Pleas judge of Morris county to approve a bond tendered by him and to permit him to qualify as justice of the peace. An alternative writ was heretofore allowed and a question of fact was raised which was sent to the Circuit for trial. At the trial the Circuit Court judge directed that judgment be entered in favor of the respondents and against the relator. Upon appeal to the Court of Errors and Appeals, this judgment was set aside upon the ground that the sole function of the Circuit Court was to settle the facts in dispute and that the application of the law was in the province of the Supreme Court. See Sagarese v. Holland, 116 N. J. L. 137; 183 Atl. Rep. 195. Upon the remanding of the record, the Circuit Court, upon application of the relator, signed an amended postea reciting that there being no dispute in the testimony upon the alleged question of fact, the court directed the jury to find as a fact that the Common Pleas judge had refused to approve the bond because the relator declined to take affidavit that he had not been convicted of a misdemeanor or higher crime, as required by chapter 131, Pamph. L. 1931; N. J. Stat. Annual 1931, § 106-11. Upon this amended postea, relator now asks a peremptory writ.

Passing the question of the propriety of the procedure adopted, we deem it sufficient to say that the question has now become moot, due to the fact that the five-year term for which relator was elected justice of the peace expired before the submission of this ease to this court. He was elected in November, 1930. Courts will not determine moot questions. Funk & Wagnalls Co. v. Stamm, 85 N. J. L. 301; 88 Atl. Rep. 1050; In re Braunstein, 105 N. J. Eq. 682; 149 Atl. Rep. 349. Cases originally presenting a real controversy may become moot pending determination. 1 C. J. Secundum 1017. Obviously, a judgment in his favor would avail relator nothing. He seeks to occupy the office to which ho was elected, but the term has expired. No matter of public interest is involved. The question presented is, therefore, moot and will not be determined.

The application will be denied.


text:
    GERTRUDE BERNDT ET AL., PLAINTIFFS-RESPONDENTS, v. LOGAN CORPORATION, DEFENDANT-APPELLANT.
    Submitted January 21, 1936
    Decided August 12, 1936.

      Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    For the appellant, Donald G. Davis and Norbert T. Burlce.

    For the respondents, Bassin & Bassin and Harry Weltchelc.

   Per Curiam.

This is an appeal from a judgment of the Union County Court of Common Pleas entered upon the verdict of a jury in favor of the plaintiffs against the defendants.

Plaintiffs were tenants in a tenement house owned by the defendant corporation. On June 22d, 1934, at about nine-thirty p. M., plaintiff Gertrude Berndt desired to descend from her apartment on the second floor to the street. The lights furnished and maintained by the defendant in the halls and on the stairway were not lighted. She attempted to descend in the darkness, holding the banister with her hand. She reached a landing four steps above the first floor, where the banister stopped. She then attempted to guide herself by holding her hand against the wall the balance of the way but missed her step in the darkness and fell. For the injuries so suffered and the consequential damages to her husband, the judgment under review has been recovered.

The first three points argue that there should have been a nonsuit because there was no proof of defendant’s negligence. We think this is not so. The defendant was required by the statute to light the common hallways and stairways and had been accustomed to do so. The lights admittedly were under the control of the defendant and its agent. The testimony was that the lights had been out for two nights before the night in question and that defendant’s agent, Mrs. Heilich, had been notified. Mrs. Heilich testified she went to the premises on the morning of June 22d and replaced a fuse, after which the lights worked, she says. However, there was testimony that they were still out on the night of June 22d, when plaintiff fell, so a jury question was clearly presented.

What has been said above also applies to the fourth point, to the effect that notice to the defendant was not proved.

The remaining two points are to the effect that in attempting to descend the stairway in the darkness, the plaintiff was guilty of negligence which is a bar to recovery. We think this question was one of fact for the jury. In Kargman v. Carlo, 85 N. J. L. 632; 90 Atl. Rep. 292, it was held that a guest in a tenement house, unfamiliar with the stairway, was not guilty of contributory negligence as a matter of law in attempting to descend when accompanied by one who was familiar and attempted to help her down. In the instant case the plaintiff had lived on the premises for four years and was thoroughly familiar with the hall and stairs. We do not think it was negligence per se to attempt to descend in the darkness.

The questions of negligence of defendant and contributory negligence of plaintiff were for the jury.

The judgment is affirmed, with costs.


text:
    JACOB ROSEN ET AL., PROSECUTORS, v. CITY OF PATERSON ET AL., DEFENDANTS.
    Argued May 5, 1936
    Decided August 12, 1936.
    Before Justices Parker, Lloyd and Dorges
    For the prosecutors, Joseph T. Lieblich.

    For the defendants, Charles F. Lynch and Frederick G. V onhof.

   Pee Cueiam.

This is an application for a writ of certiorari to “review the amount of taxes levied and billed against” prosecutors, covering certain property in the city of Paterson. The contention of the prosecutors is that there should be an exemption from taxation to the extent of six-sixteenths of the value of the property, by reason of ownership to that extent in the Society for Useful Manufactures, a tax exempt corporation.

This is an attempt to review the assessment directly by certiorari without first taking an appeal to the county board of taxation and the state board of tax appeals. We are of the opinion that the statutory method of review should be followed before the allowance of the discretionary writ of this court. Hackensack Water Co. v. State Board, 104 N. J. L. 48; 139 Atl. Rep. 410.

The writ is denied.


author: Bbown, S. C. C.

text:
    THE TRUST COMPANY OF NEW JERSEY, A CORPORATION, PLAINTIFF, v. JEFFERSON TRUST COMPANY, A CORPORATION (IN LIQUIDATION), DEFENDANT.
    Decided August 20, 1936.
    For the plaintiff, Perkins, Drewen & Nugent (by John Drewen).

    For the defendant, Richard Doherty.

   Bbown, S. C. C.

The defendant moves to strike the complaint in the above entitled cause on the grounds that the contracts upon which the suit is brought are ultra vires as to all the parties; they are contrary to public policy; illegal because they induce a breach of trust; they were made without a valuable consideration and that the complaint is framed so as to embarrass and delay a fair trial. The complaint contains three counts and annexed thereto are three writings referred to as contracts and exhibits. The suit is based on those contracts. The three counts are similar in legal effect and a reference to the first will answer for the purpose of deciding the motion. It is alleged that on July 8th, 1931, the plaintiff was and still is a banking corporation existing and conducting business by virtue of the laws of New Jersey concerning trust companies with its main office and branches in the county of Hudson. On the date above mentioned and up to the time possession thereof was taken by the commissioner of banking and insurance, the defendant was likewise a banking corporation with its place of business in the city of Hoboken and existing and conducting business under the same laws as the plaintiff. The parties in the case, as well as all other banks hereinafter mentioned, are banking corporations exercising all the powers necessary to carry on the business of banking in all of its branches with such incidental and necessary powers as are appropriate and consistent with the expressed powers granted in their respective certificates of incorporation. All of those banks are referred to in the contracts and complaint as the Hudson county group. The complaint contains the allegations that the county of Hudson “is socially a unitary, integrated, urban community of dense population;” that on July 8th, 1931, and for a long time theretofore and thereafter occurred a nationwide depression that affected Hudson county and as a result the Hudson county group, which included the parties to this suit as well as twenty-six other banks, reasonably apprehended that there had been created in the depositors of the group an apprehension and fear that the banks mentioned were not safe depositories and that upon an additional bank failure in the county of Hudson there would be a demand by depositors to immediately withdraw their deposits thereby creating a so-called “run” which was likely to result in great monetary and financial loss to the banks in the group. On June 27th, 1931, the Steneck Trust Company located in Hoboken, the same municipality in which the Second Bank and Trust Company was located, was closed by the commissioner of banking and insurance resulting in immediate and increased withdrawals from all the group banks and especially affecting the Second Bank and Trust Company to such an extent that on July 8th, 1931, the commissioner of banking and insurance notified the plaintiff and other members of the group that the Second Bank and Trust Company was in a precarious financial condition and that he would close the bank unless immediate steps were taken to pay or secure payment of the deposit liabilities. On July 8th, 1931, at the request of the commissioner the Hudson county group, including the parties to this suit, fearing a bank panic and to save great monetary loss or possible ruin to themselves did through their representatives request the plaintiff to prevent the closing of the Second Bank and Trust Company bjr assuming and securing the payment of liabilities of that bank. The plaintiff refused the request unless certain agreements were made by the groupj including the defendant, to secure the plaintiff. The agreements were executed. The first, marked Exhibit No. 1, in its preamble recites that the plaintiff was unwilling to enter into an agreement to pay and assume the liabilities of the Second Bank and Trust Company unless the group would agree to indemnify it against loss and that on July 8th, 1931, the group did so agree. In this exhibit the group “did severally guarantee” to the plaintiff to repay “any sums that may be required to protect and indemnify” the plaintiff “against any loss by reason of entering into said arrangement with said Second Bank and Trust Company.” The agreement provided for a pro rata payment by each institution based on aggregate resources as of December 30th, 1930. The obligation was a several obligation and was signed by the representatives of the group including the defendant. The second agreement upon which the suit is based is marked Exhibit No. & and was made between the plaintiff and the Second Bank and Trust Company wherein it was agreed the plaintiff would assume the liabilities of the bank in the sum of $3,959,715.68 and take as security a note for that amount bearing interest and a transfer of the assets and proceed with the liquidation of those assets. On September 21st, 1931, the plaintiff and all the members of the group executed a third agreement marked Exhibit No. 3 wherein reference is made to the notice received from the commissioner of banking and insurance of the precarious condition of the Second Bank and Trust Company and the threat to take possession thereof; that the closing of that bank so shortly after the closing of the Steneck Trust Company would precipitate “runs” on the banks in the group and wouLd affect public confidence in the financial institutions of Hudson county. It was “in the interest of all financial institutions doing business in said county of Hudson to prevent such closing.” The further recital appears that the agreement Exhibit No. 1 was an informal agreement “providing for certain indemnities” to the plaintiff and that the group, including the defendant, desired to more exactly define their rights and remedies under the informal agreement. Those rights and remedies are detailed in many respects in this agreement and for a determination of this motion it is unnecessary to make further reference to them. According to the complaint the plaintiff incurred a loss of $2,227,156.22 in acting as liquidator and the share chargeable to the defendant of this loss was $66,847.67 for which sum the suit is brought together with interest. There are twenty reasons assigned for striking the complaint. In determining the motion all the reasons have been considered. Those previously mentioned cover the most important. It is contended that the paragraphs relating to economic conditions are not capable of being joined in an issue; that they attempt to vary the terms of the written agreements and “bolster” and furnish the only consideration for the agreements and that they embarrass and delay a fair trial. It is common knowledge that the insolvency of a bank in a community, resulting in suspension of its business, will seriously affect other banks in the same community. Judicial notice will be taken of this fact. A person would be quite lacking in knowledge not to know that there was an economic depression in this country in 1929 and that it has continued, in some degree, up to the present time. Judicial notice will be taken of this fact and that the county of Hudson was affected by the same depression. There is nothing to prevent the defendant in law from joining issue on this point and making answer to the contrary. Some of the agreements refer to the economic conditions of the threatened insolvency; the action of the banking commissioner and the appreciation of the financial losses that would affect the group if they did not act promptly. A more detailed recital of those facts in the complaint as distinguished from the agreements does not vary the terms of the latter. The recitals may be more extensive than necessary to state a cause of action. They will not embarrass or delay a fair trial and they will not have the effect of varying the terms of the written agreements. The agreements are not lacking in expressing a valuable consideration. Self preservation is a consideration that has always been most highly valued in law and ethics. It needs no bolstering. It speaks for itself. The recitals of the financial apprehension that was felt are extensive, nevertheless they are reasonable allegations relating to the transactions that are the subject-matter of the suit. The defendant contends that the agreement Exhibit No. 1 is an accommodation guarantee made for the benefit of the Second Bank and Trust Company; that Exhibit No. S is an indemnity agreement and that both agreements were without the corporate powers of the parties thereto and therefore ultra vires; against public policy and their execution was a breach of trust. All of the agreements should be considered together. The recitals of the earlier agreement alleges it was made at the. request of the group and that the plaintiff refused to be a party unless the group protected and indemnified it against loss; that the alleged guarantee was one of “payment and not collection.” While the word guaranty is used in this agreement the obvious meaning and intention was that the defendant and other members of the group would be directly liable for their share of the losses. Exhibit No. £ recites that Exhibit No. 1 was an agreement providing for “indemnities.” It matters little whether the agreements or any of them were of guaranty or indemnity as the liability of the defendant does not rest on this distinction. It is well settled as a general principle of law that a bank has no power to become an accommodation guarantor for anyone. Whether this established principle was violated by the parties depends very much upon the construction of the statutes involved and whether the defendant did not sign the agreements primarily for its own safety and benefit and not solely for the accommodation of some other party without benefit to the defendant. Chapter 27 (Pamph. L. 1920; Cum. Supp. Comp. Stat. 1911-1924, p. 3745, § 221-6a, 1), an act concerning trust companies, provides in part that in addition to the general powers granted to do business a trust company “shall have all such powers as shall be necessary to carry on the business of banking.” Trust companies are also given the general powers contained in the Corporation act (Pamph. L. 1896, ch. 185, p. 278; 2 Comp. Stat., p. 1599, § 2) which provides in part “every corporation, its officers, directors and stockholders, shall possess and exercise all the powers and privileges contained in this act, so far as the same are necessary or convenient to the attainment of the objects set forth in such charter.” The federal statutes relating to the powers of national banks are quite similar to the laws of New Jersey concerning the powers vested in banks. Title 12 U. S. C. A., § 24, provides in part besides the general powers granted “all such incidental powers as shall be necessary to carry on the business of banking.” In the case of McCauley v. Ridgewood Trust Co., 81 N. J. L. 86; 79 Atl. Rep. 327, it was held that a trust company has power to become a guarantor of a bond made to it by a corporation as trustee. In referring to the meaning of the word “necessary” in the New Jersey Corporation act the court said, “the word 'necessary’ did not mean indispensable.” Vice-Chancellor Green, in his opinion, says: “The construction to be given to the words neeessary to the exercise’ is settled in this state. Chief Justice Beasley, delivering the opinion of the Court of Errors and Appeals in State Railroad Co. v. Hancock, 6 Vr. 527 (at p. 545), says: “Power necessary to a corporation does not mean simply power which is indispensable * * *. A power which is obviously appropriate and convenient to carry into effect the franchise granted has always been deemed a necessary one. * * * In short, the term comprised a grant of the right to use all means suitable and proper to accomplish the end which the legislature had in view at the time of the enactment of the charter.” In Jesselsohn v. Boorstein, 111 N. J. Eq. 310; 162 Atl. Rep. 254, it was stated by Vice-Chancellor Backes: “As a general rule, a business corporation has no power to pledge its assets for the accommodation of a third party and creditors may impeach the transaction. * * * In these circumstances, the charge that the mortgage was for the accommodation of another finds no confirmation. Bather, and in fact, it was given to protect the very substantial interest of the insolvent company in its subsidiary by saving the latter’s assets from a threatened judgment and execution sale.” In Wanamaker v. Edisto National Bank, 62 Fed. Rep. (2d) 692, the court said: “It cannot be denied that the function of the directors of a corporation is to manage its affairs in active operation, and that they have no inherent power to wind up its affairs by sale or liquidation of all of its assets. Power to take fundamental corporate action of this sort is uniformly reserved by corporation statutes to the stockholders as a body, and in the case of national banks the provisions of 12 U. S. C. A., § 181 is that any association may go into liquidation and be closed by vote of its shareholders owning two-thirds of its stock. These provisions, however, are designed to govern the actions of a board of directors in conducting the affairs of a solvent going concern and not to render powerless to act so as to safeguard the assets when the corporation is insolvent or in imminent danger of becoming so.” The court in this case agreed with the holding in the case of the City National v. Fuller, 52 Fed. Rep. (2d) 870, that it had the power to exercise “incidental powers” under 12 U. S. C. A., § 24; that an emergency existed in the pending case and hence the directors had the power to prevent the sacrifice of assets and to transfer them to a going concern by which they could be reduced to money under more valuable conditions. Hightower v. American National Bank, 263 U. S. 351, is a case where one bank assumed the liabilities of another bank and had transferred to it all of the assets because of threatened insolvency. The court stated that “the primary purpose in what was done was to relieve the Commercial National from an existing embarrassment to conserve its assets, and to subserve the interest of its creditors and stockholders.” It held that a national bank has power to enter into a contract with another bank lor the advancement of money to liquidate its obligations with a view to closing its affairs. In Wyman v. Wallace, 201 U. S. 230, a case frequently cited on the subject under consideration, the court said: “The question, therefore, is whether a national bank finding itself embarrassed, with a large amount of assets, much in excess of its obligations, yet without the cash to make payment of those which are due and urgent, can borrow to meet those pressing demands. A very natural answer is, why not? It is not borrowing money to engage in new business. It is simply exchanging one creditor for others. There may be wisdom in consolidating all it? debts into the hands of one person. At least such a consolidation cannot be beyond its powers. When time is obtained by the new indebtedness it gives the borrowing bank and its officers and stockholders time to consider and determine the wisdom of further prosecution of its business.” In Schofield v. State National Bank, 97 Fed. Rep. 282, it was held that such assistance by one bank to another was one of the statutory incidental powers. There appears no case directly in point in the reported cases of this state. Precedent is hardly necessary where the law is so clear and the facts so obvious. In the State of New York a recent decision indicates the same conclusion. O’Connor, Comptroller, v. Bankers Trust Co. et al., Special Term, Part III, of the Supreme Court, New York county, decided June 29th, 1936, is a case in which the comptroller of the currency reported to the clearing house the financial embarrassment of a bank and upon a number of banks undertaking to underwrite the Harriman Bank deposit liabilities that bank was permitted to remain open. The underwriting resulted in a loss. There was no written agreement and no action was taken to commit the member banks to an obligation to indemnify or guaranty. It was on this point the case was decided against the plaintiff who sought to recover losses sustained and in this connection the O’Connor case differs from the case under consideration. It is worthy to note, however, that the result would have been different if there were written agreements and commitments. The decision holds that it was one of the “incidental” and “necessary” powers of a member of a group of banks to guarantee the deposits of an insolvent bank for the benefit of all the banks. Eeferring to such an arrangement the court said: “The best evidence of the necessity of any practice is obviously proof that banks have frequently found it vital to their proper interests to resort to it. * * * The right of self preservation applies to banks as well as to business corporations and individuals generally. * * * It is not necessary that the bank be faced with actual ruin. * * * The slightest spark may result in a widespread conflagration difficult to control. No bank is immune when confidence is generally disturbed, and particularly when lack of confidence assumes the form of a heedless “run” on another member bank. * * * In the exercise of fair and honest judgment at the time, for the purpose of preserving the security and integrity of their own institutions, such action, within reasonable limitations, is not an invalid exercise of corporate power.” The agreements referred to in the complaint in the instant case were evidently fairly and honestly made for a purpose that was clearly within the corporate powers of the group. They were based on a consideration of the highest value to the defendant as well as other members of the group. In the making of the agreements, in the light of the conditions then existing, reasonable judgment and wisdom was exercised. The benefits and protection were for all the member banks. The agreements are not void as against public policy but consistent with public policy. The officers executing the agreements breached no trust or duty but on the contrary performed a plain duty. The agreements were not without the powers of the member banks that were parties to them. The motion to strike will be denied on all the reasons assigned and an order will be made accordingly.


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PAUL J. SMITH, PETITIONER, v. THEODORE KLEMM, TRADING AS WEST HUDSON DECORATING COMPANY, RESPONDENT.
    Decided August 21, 1936.
    For the petitioner, Herbert 0. Dolan.

    For the respondent, Henry M. Grosman.

   This matter comes before me on a motion made by the respondent to dismiss the petition filed on May 17th, 1935, upon the ground that the workmen’s compensation bureau is without jurisdiction to entertain the same because it was filed beyond the statutory time limit as prescribed in paragraph 5 of the supplement to the Workmen’s Compensation act, approved February 28th, 1918, chapter 149 (Cum. Supp. Comp. Stat. 1911-1924, p. 3889, § **236-42), as later amended.

In addition to oral argument, counsel have submitted briefs which have been carefully examined by me.

Briefly stated the material facts are essentially as follows: Petitioner met with an accident on October 10th, 1930, arising out of and in the course of his employment with the respondent, when he fell a distance of eighteen feet from a ladder, sustaining severe injuries to his right hip and pelvis. By the terms of a direct agreement entered into between the parties, petitioner was paid compensation at the rate of $20 per week from October 10th, 1930, to April 1st, 1931, for temporary disability, and in addition thereto one hundred weeks at the same rate for partial permanent disability, based on twenty per cent, total and permanent disability. On February 3d, 1933, an original petition was duly filed by the petitioner, seeking further allowances of compensation and medical treatment, and setting forth that the last payment of compensation pursuant to the agreement was received in January, 1933. The respondent filed an answer, denying the petitioner’s right to any further allowances of compensation and claiming that he had been fully and adequately compensated by the terms of the agreement. On May 23d, 1933, in due and regular course, the matter came on for hearing before Keferee John C. Wegner at the Newark chambers of the workmen’s compensation bureau, in the presence of the parties, their counsel and medical experts. When the case was called, respondent’s attorney, Henry M. Grosman, made the following stipulation in open court (quoting from page 2 of the stenographic transcript of the testimony) :

Mr. Grosman: “In this case the petitioner suffered an accident while employed by the respondent on October 10th, 1930. Compensation for temporary disability has been paid in full. In addition thereto the respondent has paid the petitioner compensation for partial permanent disability in the sum of twenty per cent, of total. This is an application for compensation for increased disability over and above that sum. The respondent contends that the petitioner has been fully compensated and that this petition should be dismissed.” The parties thereupon produced their medical experts— Dr. Charles Eobbins appearing in behalf of the petitioner and Dr. Edward W. Markens in behalf of the respondent. Dr. Markens testified as follows (quoting from page 2 of the stenographic transcript of the testimony) :

“I examined this man on July 6th, 1932, and at that time I felt that his disability was twenty per cent, of total and this case was disposed of on that basis. I have examined him twice since then and my findings were almost identical with my previous findings of July 6th, 1932. I am of the opinion that this man has no increased disability since the time that this case was disposed of.”

Dr. Eobbins, taking the stand on behalf of the petitioner, testified as follows (quoting from page 3 of the stenographic transcript of the testimony) :

“This man was examined by me in January and once in May and my findings were as those of Dr. Markens. I agree that there is a definite permanent disability of twenty per cent.”

The petitioner also took the stand, and upon the entire testimony adduced, the referee made the following findings (quoting from page 5 of the stenographic transcript of the testimony) :

“After listening to the testimony of the various doctors and the petitioner and the respondent, I feel that the petitioner has been amply compensated by a payment of twenty per cent, of total, and the petition is hereby dismissed.”

In accordance with these findings, an order dismissing the petition was entered on May 23d, 1933, and signed by the referee. Upon the expiration of the time limit for an appeal or thirty days after the date of the order of dismissal, the respondent paid to the petitioner the sum of $850—no appeal having been taken by the petitioner. Nowhere in the record is there any explanation or mention made as to the purpose of the said payment, whether intended as further payment of compensation or a gratuity for which the respondent sought to buy its peace. On May 17th, 1935, the present petition was filed, entitled “Employe’s Claim Petition for Compensation for Increased Disability,” to which the respondent filed an answer denying petitioner’s right to any further allowance of compensation.

In order to reach a proper solution of the issues raised by this motion, it is necessary to determine first whether the petition under attack is in the nature of an original claim petition for compensation or a supplemental petition seeking a review on the ground of increased incapacity; and secondly, whether the said petition was filed within the time period as provided by the statute.

Obviously it cannot be considered a supplemental petition seeking a review under the provisions of paragraph 21(f) either prior to or after the 1931 amendment, because there appears to be no previous petition upon which an award of compensation was recovered and which award alone could be the basis for the review as contemplated by the act. Nowhere in the act is there any provision permitting the filing of a subsequent petition for the purpose of reviewing an order dismissing a previous petition; the remedy alone is by appeal.

It necessarily follows that if the present petition is to be considered at all, it must be viewed in the light of an original petition, notwithstanding that a previous petition was dismissed after a hearing on the merits. Paragraph 5 of the supplement to the Workmen’s Compensation act, approved February 28th, 1918, chapter 149 (Cum. Supp. Comp. Stat. 1911-1924, p. 3890, § **236-46, 5), deals with the requisites and time periods for the filing of a formal petition. The decisive question is whether the petition sub judice meets the statutory requirements.

Paragraph 5, supra, as amended in 1931 (N. J. Stat. Annual, p. 537, § **236-46, 5), provides as follows:

“Every claimant for compensation under the act to which this'act is a supplement, or its supplements or amendments, shall, unless a settlement is effected or a petition filed under the provisions of section four, file a petition in duplicate with the secretary of said 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 such employer and such 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 such employer, then within two years after the last payment of compensation * * *.”

Prior to the 1931 amendment, the time period for filing a petition was limited to one year covering the three specific situations. Whether the present case is controlled by the statute as it existed prior to or after the amendment cannot be decided because of the insufficiency of the proofs. The record fails to disclose the date on which the agreement was entered into between the parties, by the terms of which the respondent paid to the petitioner temporary disability compensation at the rate of $20 per week from October 10th, 1930, the date of the accident, to April 1st, 1931, and for permanent disability one hundred weeks at the same rate, based on twenty per cent, of permanent and total disability— whether the said agreement was made prior to or after April 27th, 1931, the effective date of the amendment. But assuming for the sake of argument that the case is controlled by the amended section extending the time period from one to two years, the petitioner must fail because the petition herein is filed clearly beyond the bounds of the statute. As will be noted, paragraph 5, supra,, points to three, and only three, dates as setting in motion the running of the two-year periods: (a) the occurrence of the accident, not followed by any petition, or voluntary payment of compensation by the employer, or agreement for compensation; (b) failure of the employer in making payment after agreeing to do so; (c) cessation of payment by the employer either after agreement or voluntarily without agreement. Tested in this light, the present petition was not filed (a) within two years from the date of the accident; nor (b) within two years from the date of failure of the respondent in making payment of compensation pursuant to the agreement—there being no breach of the agreement as payment was made in full in accordance with the terms thereof; nor (c) within two years from date of cessation of compensation payments—the last payment of compensation having been made in January, 1933, pursuant to the agreement.

It may be well argued by the petitioner that the payment of $850, made by the respondent subsequent to the dismissal of the previous petition after a hearing on the merits and after the expiration of the statutory period for the filing of an appeal, extended the time for the running of the statute to two years from date of such payment. In support of such argument petitioner relies upon the case of Ecken v. O’Brien, 115 N. J. L. 33; 173 Atl. Rep. 373—but there is no analogy between that case and the instant case. In the Ecken case the payment was made and intended as compensation with a stipulation that the petition be dismissed upon completion of payment. The rule is well settled that it is incumbent upon the petitioner to show that such payment was in fact made by the respondent in discharge of lawful compensation due him (petitioner) under the act. In this case, however, I find no evidence which would justify the inference that the said payment was made for that purpose. In order to find in favor of the petitioner, it would be necessary to speculate as to which one of several choices the said payment was actually made, viz.: (1) as payment of lawful compensation, (2) as reimbursement for medical treatment, or (3) as a gratuity for which petitioner forebore his right of appeal after hearing and dismissal of the previous petition. Of the three, it would appear that an inference holding the said payment was in discharge of lawful compensation is the least probable. See Pathe Exchange Inc., v. Court of Common Pleas of Hudson County, 3 N. J. Mis. R. 652; 129 Atl. Rep. 468— affirmed by Court of Errors and Appeals, 102 N. J. L. 443; 131 Atl. Rep. 923—holding that reimbursement for traveling expenses and time lost in going to a physician is not in any sense payment of compensation within the meaning of the statute; also Blackford v. Green, 87 N. J. L. 359; 94 Atl. Rep. 401—affirmed, 89 N. J. L. 357; 100 Atl. Rep. 1069— holding payments in excess of compensation liability were either compensation for labor or benevolence.

The time period during which a petition may be filed under the act is jurisdictional. See Miller v. Beller Electric Supply Co., 100 N. J. Eq. 444; 136 Atl. Rep. 342. Where a statute, as here, gives a right of action which does not exist at common law and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right. It is a limitation of the liability itself, and not of the remedy alone; and as such must be strictly complied with.

For these reasons I hold that the filing of the present petition is clearly beyond the statutory time limit. The motion of the respondent is accordingly granted. An order in conformity with this opinion may be submitted.

John J. Stahl, Deputy Commissioner.


author: John C. Wegnek, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    VERONICA E. STINSON, PETITIONER, v. DAIRYMEN’S LEAGUE CO-OPERATIVE ASSOCIATION, INCORPORATED, RESPONDENT.
    Decided August 27, 1936.
    For the petitioner, Messcmo & Messano.

    For the respondent, Clarence B. Tippett.

   sj: jfc

There are two important questions to be determined by the bureau in this case:

1. Whether or not the petitioner had abandoned his employment at or prior to the accident.

2. Whether or not the accident arose out of and in the course of petitioner’s employment.

In Bryant v. Fissel, 84 N. J. L. 72 (at p. 77); 86 Atl. Rep. 458, an accident arises in the course of the employment, if it occurs while the employe is doing what a man so employed may reasonably do within a time during which he was employed and at a place where he may reasonably be during that time.

An accident arises out of employment when it occurs in the course of the employment and is the result of a risk involved in the employment or incident to it, or to the condition under which it is required to be performed. Sometimes the employment will be found to directly cause the injury but more often it arises out of the conditions incident to the employment. A causal connection between the accident, though not foreseen or expected, had its origin in a risk connected with the employment and flowed from that source as a natural consequence.

From the testimony it would appear that decedent had been employed as a traveling auditor. A short time previous to the accident he was assigned to install a system of bookkeeping in respondent’s plant at Erie, Pennsylvania. He was permitted to return to his home in Jersey City about December 22d for the Christmas holidays. From the testimony of his superior, a Mr. Jones, comptroller, he was free until after the holidays and had no duties to perform.

He did call at the Hackensack plant of respondent on December 24th. He did apparently discuss business with the manager of said plant. He did leave there approximately one-thirty or two o’clock. From that time until his appearance at the plant of the Consolidated Film Company, his whereabouts are not stated. This later company is in no way connected with the respondent and his call was purely personal as well as to meet his brother for the purpose of transporting him home. These facts are undisputed.

Two cases present themselves in New Jersey covering the doctrine of abandonment of emplojonent. Hanover v. Pennbrook Golf Club, 10 N. J. Mis. R. 378; 159 Atl. Rep. 387, and Colucci v. Edison Portland Cement, 94 N. J. L. 542; 111 Atl. Rep. 4.

A review of the cases of other jurisdiction would reflect that where there is an abandonment of employment followed by an accident compensation is not payable.

In the case of State, ex rel. Niessen v. District Court of Ramsey County, 172 N. W. Rep. 133, a salesman who. departed from schedule and visited other places and was killed by automobile accident—held not compensable.

In the case sub judies the burden falls fully upon the petitioner to definitely prove that decedent’s death was due to an accident arising out of and in the course of his employment. He left respondent’s plant at two p. m., his whereabouts until approximately four p. m. is not shown. His call at another plant not in any way connected to the respondent as well as the reason for such call to take his brother home was not in any way incidental to his employment.

There was in my opinion an abandonment of employment in this instance, assuming that the call at the Hackensack plant could be termed employment, immediately upon his leaving that plant approximately between one-thirty and two p. ie., from that period he was at his own leisure which does not carry into such period insurance from his employers.

I am, therefore, of the opinion that decedent did not meet with an accident arising out of and in the course of his employment.

It is, therefore, ordered that judgment be entered in favor of the respondent and that the petition herein be and the same is hereby dismissed.

John C. Wegnek, Referee.


author: Herr, A. M.

text:
    Carmella Zanzonico, complainant, v. Antonio Zanzonico, defendant.
    [Decided September 1st, 1936.]

      Mr. Louis Auerbacher, Jr., for the complainant.

      Mr. Herman Marx, for the defendant.
   Herr, A. M.

The complainant moves for the allowance of suit money and maintenance pendente lite upon her bill for separate maintenance under section 26 of the Divorce act (P. L. 1907 p. 482; Comp. Stat. p. 2038), and is met by a counter-motion for the dismissal of the bill on the ground that the court is without jurisdiction to entertain it, for the reason that the subject-matter of complainant’s suit has already been adjudicated adversely to her in this court, and for the further reason that having secured an order for support from her husband in the juvenile and domestic relations court she is barred from maintaining her suit in this court on the doctrine of election.

The bill sets up that following the marriage of the parties on July 9th, 1932, they cohabited until the month of April, 1934, at which time the complainant was forced to separate herself from the defendant because of certain alleged acts of extreme cruelty extending from the date of the marriage down to April 8Lh, 1934; that ever since that time she has lived apart from him and that he has never “requested her to return nor given her any assurance that if she did return that she would be treated properly;” that in June, 1934, the defendant filed a petition in the court of chancery against complainant, praying for an annulment of said marriage, to which she “filed an answer and counter-claim in said cause, praying for a divorce on the ground of extreme cruelty;” that said proceedings came on for a hearing in November, 1935, and that on January 14th, 1936, a decree was entered dismissing the petition of the defendant and the counterclaim of the complainant; that at no time prior or subsequent to January 14th, 1936, has the defendant “extended to complainant personally an invitation to return to his home, nor has he made any offer or invitation in good faith to any one on complainant’s behalf for her to return to his home;” that since the said final hearing in November, 1935, the defendant “has failed, refused and neglected to support complainant or to contribute any moneys towards her support and maintenance other than as hereinafter mentioned.”

The bill then proceeds to allege that in March, 1936, complainant filed a complaint against her husband in the juvenile and domestic relations court of Essex county for support, charging that he “has refused and failed to provide adequate support and maintenance * * * contrary to ‘An act concerning the juvenile and domestic relations court of 1929, chapter 157’ (Cum. Supp. Comp. Stat. 1925-1930 p. 432 § 53-215b (1) and the supplements thereto and amendments thereof, and contrary to the provisions of ‘An act for the settlement and relief of poor, P. L. 1924 ch. 132,’ (Cum. Supp. Comp. Stat. 1911-1924 p. 2732 § 161-124) > and the supplements thereto and amendments thereof,” that after a hearing the court entered an order directing the defendant to pay her $7 a week for her support and maintenance, but that “on or about May 23d, 1936, the defendant, through his attorney, obtained a writ of certiorari to review the proceedings of the juvenile and domestic relations court,” and that “since May 23d, 1936, the defendant has failed to pay or contribute any moneys towards complainant’s support and maintenance.”

Finally, the bill contains allegations respecting the needs of the complainant and the faculties of the defendant, and a prayer for relief in the usual form.

The decree in the prior suit in this court dismissed both bill and counter-claim, reciting that proofs had been taken in open court, that the court had heard and considered the pleadings, proofs and arguments, and that “upon full consideration thereof” it appeared to the court that neither of the parties had sustained the truth of their respective allegations and that neither was entitled to relief.

In O’Brien v. O’Brien, 103 N. J. Eq. 214; 142 Atl. Rep. 898; affirmed, 105 N. J. Eq. 250; 147 Atl. Rep. 911, it was determined in a similar situation that (103 N. J. Eq.—at p. 218) : “The court must assume that the divorce case was adjudicated upon its merit, and that the decree entered therein is res judicata of the matters complained of therein, and, as the complainant herein relies upon the same matters alleged in the former suit, the aforesaid decree is dispositive of the case sub judice. * * * The complainant cannot nullify the res judicata rule by changing the character of the relief sought from that of a decree of divorce a mensa ei ihoroj to a decree lor maintenance, nor be held to question the decree in the former suit by collateral attack, such as is manifested in her present suit.” In the O’Brien Case the wife's prior suit was for divorce on the ground of extreme cruelty, and her second suit for separate maintenance on the ground of constructive abandonment based upon the same allegations of extreme cruelty. Such is the situation presented by the bill in the present suit, and the rule of the O’Brien Case is applicable.

It should be noted at this point that an examination of the record of proceedings in the prior suit in this court between the parties hereto (docket 102/679) discloses that the wife's counter-claim (filed August 21st, 1934, and refiled, evidently in error, September 12th, 1934) prayed for a decree of separate maintenance, and not £or divorce as alleged in her present bill. To determine whether an amendment might avail complainant the stenographic notes of the hearing in the prior suit were consulted to ascertain whether the issue of abandonment might have been undecided (Locher v. Locher, 112 N. J. Eq. 25; 163 Atl. Rep. 251), but it appeared therefrom that this issue was adjudicated against the wife on the merits. Hence, it is immaterial that this complainant, in her prior suit, prayed for separate maintenance rather than divorce. The issue of abandonment presented by her counter-claim in that suit and determined adversely to her upon the merits is the same issue now presented a second time by her bill in this suit.

In her counter-claim in the former suit, the complainant claimed, as she claims in her present bill, that she was obliged to leave her husband in April, 1934, because of his extreme cruelty to her, and that he did not request her to return nor assure her that if she did return he would treat her properly. The allegations contained in her present bill are based upon the same course of conduct on her husband’s part of which she complained in her counter-claim in the prior suit, and include no charges of cruelty not alleged in the counter-claim or any other matters in justification of her remaining away from her husband, except that ho has not “extended to complainant personally an invitation to return to his home, nor has he made any offer or invitation in good faith to anyone on complainant’s behalf for her return to his home.”

It was held in the O’Brien Case, supra (at p. 219) that “inasmuch as this court adjudicated in complainant’s former suit that she had failed to substantiate the allegations of her petition it was her duty to return to live with the defendant * * The court of errors and appeals has repeatedly held that “it is the duty of the wife to live with her husband at his home and to give him her services and society. From these obligations she is only relieved if she can show that the conduct of her husband has been such as will reasonably convince the court that her life or health are in danger or her life rendered one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife, or that the conduct of the husband, if continued, would have brought about these conditions.” Taylor v. Taylor, 73 N. J. Eq. 745, 746; 70 Atl. Rep. 323; Pinkinson v. Pinkinson, 92 N. J. Eq. 669, 671; 113 Atl. Rep. 143; Sabbarese v. Sabbarese, 104 N. J. Eq. 600; 146 Atl. Rep. 592; affirmed, 107 N. J. Eq. 184; 152 Atl. Rep. 920; Werpupp v. Werpupp, 108 N. J. Eq. 169; 154 Atl. Rep. 424.

By its decree in the prior suit this court necessarily adjudicated that the complainant was not relieved from these obligations because of her husband’s conduct, or by his consent to the separation. Hence, it became her duty to return to him, or at least to endeavor in good faith to do so, as a condition precedent to filing another suit for separate maintenance. Her bill does not allege that she made any effort in this direction, or that she would have returned to him had he made advances, nor does it allege that since the entry of the decree in the prior suit the defendant has in anywise discouraged a reconciliation or done any act or acts which would legally excuse her failure to make advances, so that there is nothing in the present bill to take the ease out of the prior adjudication. The decree in the earlier case therefore operates res judicata as a bar to pleading and proving all of complainant’s charges against her husband contained in the present bill. Dowling v. Dowling, 91 N. J. Eq. 464; 110 Atl. Rep. 39; affirmed, on this point, 93 N. J. Eq. 159; 115 Atl. Rep. 378; City of Paterson v. Baker, 51 N. J. Eq. 49 (at p. 57); 26 Atl. Rep. 324; In re Leupp, 108 N. J. Eq. 49, 58; 153 Atl. Rep. 842; Ordinary v. Webb, 112 N. J. L. 395; 170 Atl. Rep. 672.

The decision in Barefoot v. Barefoot, 83 N. J. Eq. 685; 93 Atl. Rep. 192, is not in conflict with the views above expressed. The court in that case said (at p. 687): “All that is decided at this time is that when a wife resides away from her husband with his consent the husband’s obligation to support her continues.” Nor is Segal v. Segal, 104 N. J. Eq. 457; 146 Atl. Rep. 189, authority to the contrary. There the husband’s conduct had been partly responsible for the separation, and the court held that his common law duty to maintain his wife persisted until he made just advances to terminate the separation.

In the instant case the point has been passed where inquiry can. be made as to the husband’s attitude toward the separation. That matter was adjudicated in the prior suit. The decree amounted to a judicial determination that the wife had left her husband and had remained away from him without his consent, express or implied, and without just cause. It was within her power to change the status so fixed, but only by making a bona fide effort to effect a reconciliation.

If there were any doubt upon this point, it is resolved by reference to the proofs filed upon this motion, which show that in fact the defendant did seek his wife’s return to him after the decree of January 14th, 1936, but that she refused.

The second ground upon which defendant bases his motion to dismiss is likewise well taken, in my judgment, viz., that complainant (assuming that she had the right of separate maintenance), elected her remedy by filing her complaint in the juvenile and domestic relations court and securing an order from that court for the payment of a weekly sum of money for her support. Although the defendant afterwards procured a writ of certiorari from the supreme court to review the legality of that order, and upon the issuance of said writ discontinued his payments under the order (obviously because the writ operates as a supersedeas), the order still stands unreversed. The defendant’s action in procuring the writ was not an “extraneous action,” as in Shore v. Shore, 96 N. J. Eq. 661, 665; 126 Atl. Rep. 320, but simply a step in the cause. It is by the action of the supreme court in issuing the writ, rather than by the defendant’s action in procuring it, that the order is presently inoperative. The complainant elected her forum and the entire subject-matter of her suit is now before the supreme court. Under these conditions the rule applied in the case of Roarke v. Roarke, 77 N. J. Eq. 181; 75 Atl. Rep. 761, as to election of remedies, is likewise applicable to the present case. It is true that the order of the juvenile and domestic relations court is not operative, but it is not true that the order is being disobeyed, as in Rennie v. Rennie, 85 N. J. Eq. 1; 96 Atl. Rep. 571, and Becker v. Becker, 90 Atl. Rep. 675 (not officially reported). The supreme court in its discretion may on application modify the effect of the writ so as to allow complainant pendente lite relief, or the complainant may procure the vacation of the order which she now seeks to uphold against the defendant in the certiorari proceedings, but so long as those proceedings are pending it would be an unwarranted encroachment upon the jurisdiction of the supreme court for this court to entertain complainant’s present suit, based as it is upon the same subject-matter.

This determination in favor of the defendant upon his motion to strike the bill should not be regarded as sanctioning the practice of using affidavits upon such a motion, which amounts to a general demurrer under the old practice. For the purpose of the motion all of the well pleaded allegations of the bill are admitted to be true. At the argument in this case affidavits were read without objection; indeed, both sides argued upon the proofs. The court has therefore dealt with the matter as if the proofs were properly before the court, under an answer in lieu of plea (rule 68). Consideration of them was hardly necessary for the determination of the motion, but is justified upon the authority of National Bank of New Jersey v. Lefkowitz, 107 N. J. Eq. 265; 152 Atl. Rep. 328, as well as upon the inherent power of the court to prevent a vexatious suit from being prosecuted to a hearing. Henninger v. Heald, 51 N. J. Eq. 74; 26 Atl. Rep. 449; Benjamin v. Van Voorhis, 106 N. J. Eq. 196, 197; 150 Atl. Rep. 393. See Mendel v. Berwyn Estates, 109 N. J. Eq. 11; 156 Atl. Rep. 324.

The bill will be dismissed. Its dismissal will of course carry down with it the complainant’s application for ad interim relief.


text:
    ERCOLE DONATO DE PAOLO, PLAINTIFF-APPELLEE, v. CONCETTA TESTA AND SALVATORE TESTA, DEFENDANTS-APPELLANTS.
    Submitted October 11, 1935
    Decided August 27, 1936.
    Before Justices Trenci-iard, Heher and Perskie.
    Por the defendants-appellants, Wall, Haight, Carey & Hartpence.

    Por the plaintiff-appellee, Aurel Villari (John Drewen, of counsel).
   Per Curiam.

This is the defendants’ appeal from a judgment in favor of the plaintiff rendered by the trial judge, sitting without a jury, in the Second District Court of Jersey City.

The plaintiff alleged in his state of demand, and proved at the trial, the fact that he fell from the fifth step of a stairway between the third and fourth floors of the apartment house owned by the defendants in which the plaintiff and others were tenants, and in which the defendants maintained the stairways under their own control. The plaintiff’s testimony was to the effect that immediately after he fell he turned and noticed a rip in the carpet on the fifth step, which caused his fall and which defect he had not seen before.

The superintendent of the apartment house called by plaintiff as a witness testified that for some time prior to the date of the accident she had been janitress for the building and that the three flights of stairs leading from the first to the fourth floor for a long time had been in a state of disrepair; that there were numerous tears in the carpet and many nosings had been removed from the stairs, for more than two years prior to the accident; that the defendant owner of the house had walked up and down these stairs many times while she was cleaning the stairs, at which times the stairs were in the defective condition as described.

The plaintiff further testified that his right hand was fractured in the accident and that he was unable to continue his regular work as a carpenter for sometime thereafter, and he testified that he was unable to work and was compelled to hire other carpenters to do the work that he would have done had he not been injured. His physician testified that he treated the plaintiff’s hand; that it was fractured and that the plaintiff was unable to use the hand for more than two months after the accident.

The defendants contend that the plaintiff failed to assume the burden of proving that the defendants were legally negligent, and that such negligence was the cause of the accident.

We have examined the state of the case as agreed upon by the parties and we conclude that the defendants’ contention in this respect is without merit.

The defendants also contend that “plaintiff has failed to prove loss of profits as a measure of damages.” We see no merit in this point. What the plaintiff proved on this aspect of the case was his loss of time and earnings as a carpenter consequent upon his injury, and in this connection, payments made to others to substitute for him in doing carpenter work which before the accident he had obligated himself to perform.

The agreed state of the case in our judgment amply justifies the judgment rendered by the trial judge.

The judgment will be affirmed, with costs.


author: Perskie, J.

text:
    ZACHARY M. DELMAN, PLAINTIFF-APPELLEE, v. LOUIS COHEN AND JOSEPH M. COHEN, DEFENDANTS-APPELLANTS.
    Argued January 22, 1936
    Decided August 16, 1936.
    Before Justices Heher and Perskie.
    Por the appellants, Samuel Leventhal (Richard J. Hughes, of counsel).
    Por the appellee, Maxwell A. Kraemer.

   The opinion of the court was delivered by

Perskie, J.

The gravamen of this appeal is the propriety of the trial court’s action in excluding certain parol evidence hereinafter set forth. The fundamental question confronting the court below was whether this evidence tended to show a conditional delivery by the makers to the payees of the notes in suit, or a delivery upon an alleged oral agreement that upon the happening of a subsequent event there would be no liability and the instruments would cease to exist. If the proffered evidence tended to show a conditional delivery it should have been received. Essex Sash and Door Co. v. Gordon, 3 N. J. Mis. R. 550; 129 Atl. Rep. 126; Pamph. L. 1902, p. 583 (negotiable Instruments act, section 16); 3 Comp. Stat. p. 3737. If, on the other hand, the same evidence was to show that the notes, valid on their face, would cease to exist upon the occurrence or non-occurrence of a future event, the evidence was inadmissible by reason of the parol evidence rule. Middleton v. Griffith, 57 N. J. L. 442, 448; 31 Atl. Rep. 405. To determine the correctness of the ruling it becomes necessary to recur to the facts.

Defendants were owners of stock in a laundry corporation. After extended negotiations they sold this stock to purchasers from New York for $8,500. $1,000 was paid in cash and the balance in notes which were secured by a chattel mortgage given to the vendors of the stock. I. Manes and L. Barbash were the brokers who procured the purchasers. Their commission for the sale amounted to $400. $125 of this was

paid in cash at the time the sale was consummated. Defendants executed five notes to cover the balance of $275 due on the commissions. Two of the notes were for $50 each and they were paid. The remaining three notes for $54, $56 and $65, respectively, which are the subject of this suit, were duly negotiated by the brokers for value and before maturity to the plaintiff. For defendants it was testified that they had discussed the matter of commissions in the presence of the plaintiff and at that time had said, “if these men [the vendees of the stock] continue to operate the laundry and pay the balance of the purchase price therefor, we would pay the notes.” The plaintiff denied having heard this testimony and objected to its admission. The court, however, admitted it. Defendants further testified that the purchasers of the stock operated the laundry for a time; failed to make payment of the chattel mortgage; whereupon the mortgage was foreclosed, and by reason thereof the notes in suit were not paid. At this point, upon motion for the plaintiff, this testimony was stricken out as was the defendants’ testimony previously admitted. Defendant objected. The trial judge directed a verdict in favor of the plaintiff and against the defendants on the notes, in the sum of $175. It is the judgment based on that verdict that is here challenged.

Was the action of the court below, in directing a verdict for the plaintiff, proper ? We think it was.

That a note may be shown to have been conditionally-delivered is settled by the Negotiable Instruments act, supra. Section 16 (3 Comp. Stat, p. 3737) of this act provides, inter alia, “* * * As between immediate parties, and as regards a remote party other than a holder in due course, the delivery in order to be effectual, must be made either by or under the authority of the person making, drawing, accepting or endorsing, as the case may be; and in such case the delivery may be shown to have been conditional or for a special purpose only, and not for the purpose of transferring the property in the instrument * * *.”

The problem thus arises as to whether or not this oral evidence if admitted would tend to show a conditional delivery. Delivery basically is depended upon the intention of the parties. It does not necessarily follow that because the payee had possession of the note that there had been an absolute delivery to him. Intention so to deliver is the essential element. 8 G. J. 204. “A delivery may be conditional without the use of express words to that effect at the time, and that conclusion may be drawn from all the circumstances which properly form a part of the entire transaction, whether in point of time they precede or accompany the delivery.” 8 Id. 206.

But after a careful analysis of the rejected testimony, and all proper deducible inferences therefrom, we fail to perceive its probative value on the question in issue. The commissions for which the notes were given in part payment had been earned. Two of these notes, as already observed, were paid by the defendants. It appears to us that the most favorable interpretation that can be given to that testimony is that the makers of the notes would pay them if they were in turn paid the balance of the purchase price by the buyer, a thiry party. Obviously, that testimony does not relate to either the conditional or unconditional delivery of the notes. Dor was it “for a special purpose only, and not for the purpose of transferring the property in the instrument * * *.” Section 16, Negotiable Instruments act, supra. It was, however, directly related to the occurrence or non-occurrence of a future event—the payment of the balance of the purchase price by the buyer of the stock. It was, therefore, clearly within the ban announced in Middleton v. Griffith, supra. It was properly excluded.

We have considered all other points argued and find them to be without merit.

Judgment is affirmed, with costs.


author: Pee Curiam.

text:
    CENTRAL FOOD STORES, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLEE, v. DAVID BELOFF, AND DAVID BELOFF, INCORPORATED, A CORPORATION OF NEW JERSEY, DEFENDANTS-APPELLANTS.
    Argued October 1, 1935
    Decided August 27, 1936.
    Before Justices Trenchard, Hbher and Perskie.
    For the defendant-appellant, David Beloff and Herman D. Greenstone (Paul Rittenberg, of counsel).
    Por the plaintiff-appellee, Benjamin Osherov (Robert E. Pollan, of counsel).
   Pee Curiam.

This case, tried before the District Court without a jury, was one wherein the plaintiff, as assignee of the Center Stores, Incorporated, sought to recover from the defendants the sum of $400 deposited by the Center Stores, Incorporated, with the K & T Realty Company, its landlord, as security for the full and faithful performance of a lease on certain premises subsequently conveyed by the K & T Realty Company to David Beloff and by him conveyed to David Beloff, Incorporated.

The District Court found from the testimony that the defendant David Beloff had in fact received the sum of $400 from the K & T Realty Company and has assumed the payment of the same to the plaintiff the Central Pood Stores.

We believe that the finding of the District Court was justified by the evidence; but that question, in the circumstances of this case, is not before us for decision. The judgment entered by the District Court upon that finding was rendered July 24th, 1935, in favor of the plaintiff and against the defendant David Beloff, and it is from this judgment that David Beloff appeals. (See state of case, page 1.)

It further appears from the state of the case as settled by the trial judge that on July 25th, 1935, the defendant Beloff applied for and obtained a rule to show cause why a new trial should not be granted upon the grounds, among others, (1) “that said verdict was contrary to the weight of the evidence;” and (2) “that the said plaintiff has failed to establish a cause of action against the defendant.” That rule was heard and was discharged. The defendant seems to contend that the rule was not discharged; but that contention is contrary to the fact. The state of the case shows (page 13) that the judge “on this 31st day of July, 1935, ordered that the rule to show cause entered herein on the 26th day of July, 1935, be discharged; and it is further ordered that the restraint therein contained be lifted.”

Now it will be noted that the defendant stated in his rule to show cause as reasons, that the verdict was contrary to the weight of the evidence and that the plaintiff has failed to establish a cause of action against the defendant.

Upon examination we find that the specifications of determination as grounds of appeal are substantially the reasons stated and argued at the hearing of the rule to show cause before the trial court. This, therefore, precludes the defendant from now arguing on appeal any ground embraced in these reasons. Such specifications are res adjudicata and cannot be made the basis of appeal. Cleaves v. Yeskel, 104 N. J. L. 497; 141 Atl. Rep. 814.

In such situation the appeal must be dismissed, with costs, and such will be the order.


author: Peeskie, J.

text:
    L. L. LEONARD, PLAINTIFF-APPELLANT, v. MAY D. COOPEY AND C. H. COOPEY, DEFENDANTS-APPELLEES.
    Submitted January term, 1936
    Decided August 26, 1936.
    Before Justices Heheb and Peeskie.
    For the appellant, Turnen <& Turnen (Kremer & Proctor, of counsel).
    For the appellees, Joseph F. Mabiice (Gilbert II. Van Note, of counsel).
   The opinion of the court was delivered by

Peeskie, J.

This is the plaintiff’s appeal from a judgment entered by the trial judge, sitting without a jury, of “no cause for action against defendants” and also from the judgment against him on defendants’ counter-claim.

The state of case settled by the court discloses substantially the following facts: May D. Coopey, one of the defendants herein, was one of the heirs-at-law and administratrix of the estates of Eliza Chaffinch and Charles Chaffinch. Because of poor health she placed the estates in the hands of one S. Lewis Davis, an attorney-at-law. Both estates were indebted to the plaintiff for professional services rendered; that of Eliza Chaffinch in the sum of $150 and that of Charles Chaffinch in the sum of $456. The estates, apparently being insolvent, endeavored to effect a fifty per cent, settlement with all creditors, including the plaintiff. All the heirs in interest had agreed to transfer to May D. Coopey a certain property of the estates if the debts were paid. In consideration therefor defendants undertook that task. They set out to satisfy plaintiff’s claims. They knew that their attorney, Davis, had been unable to do so. On May 20th, 1933, defendants entered into an agreement with the plaintiff whereby they obtained a release of his claims against the said estates in return for three notes of $100 each which they executed and delivered to the plaintiff. Defendants paid $150 on account of the said notes. On June 29th, 1933, plaintiff also received from Davis $303 in full settlement of his claims against the two estates, for which he also executed a general release to each estate.

On March 28th, 1935, plaintiff commenced this suit for the balance of $150 due on the notes. Defendants counterclaimed for the $150 paid. The theory upon which this claim is rested is that the plaintiff breached his undertaking with defendants under, their agreement of May 20th, 1933, in which he released the estates, by thereafter accepting a like sum from Davis. Judgment was rendered for the defendants of no cause of action on plaintiff’s claim, and for the sum of $150 in favor of the defendants and against the plaintiff on the defendants’ counter-claim.

Thereafter the trial judge allowed a rule to show cause why a new trial should not be granted. The reasons assigned on the rule were: (1) that the said verdict was against the weight of the evidence; (2) that the said verdict should have been for the plaintiff and not for the defendants; (3) that the said verdict was arrived at as a result of a mistake; and (4) that the said verdict was based upon evidence which was either a mistake or a deliberate falsehood. The rule also contained a proviso that the granting of the rule should not be a waiver of any grounds for appeal existing in favor of the plaintiff.

Testimony was taken on the return of the rule to show cause. The trial judge in his memorandum of conclusions reviews the proof, and, among other things, says:

“It is quite apparent from all this that Mr. Davis was the person actually in charge of the management of the estates. That Mrs. Coopey was physically unable to do it. This was known to Dr. Leonard. The proposal to accept fifty per cent, in settlement was agreed to by letter of Turnen & Turnen, which Mr. Davis received on May 22d. What Dr. Leonard obtained from the Coopeys he did not disclose to Mr. Davis, and what ho obtained from Mr. Davis he did not disclose to the Coopeys. This is just the conclusion which I reached at the trial.

“The evidence adduced by the plaintiff at these hearings has substantiated the defendants’ case and does not in any way indicate that the court was misled or deceived by the defendants at the trial.

“It may be here noted that the witnesses produced at these hearings, on the motion to open the judgment, were the plaintiff’s witnesses and their testimony in so far as plaintiff is concerned, must be taken to be true.

“A careful consideration of all the testimony adduced at these hearings and the arguments of counsel thereupon leave me with the opinion that the judgment heretofore rendered in this cause is a correct one. Therefore, let the rule be discharged.”

Plaintiff again challenges the propriety of the judgments entered by the court below and its disposition of the rule to show cause. He sets down eleven specifications with which he is dissatisfied in point of law. The argument is confined to three points. Epitomized they are substantially these: (1) There was no evidence to support the judgment, i. e., they were contrary to the weight of the evidence. (2) The court erred in holding that the plaintiff was under any obligation to tell Davis of his settlement with Coopeys and of having released the estates. (3) That the court abused its discretion in refusing to grant a new trial.

The argument nowr made as to the first and second points is nothing more than a repetition of the argument made on the same points below. The disposition of this argument below is a bar to its consideration here. The Morris Plan Corp. v. Leschinsky, 113 N. J. L. 414; 174 Atl. Rep. 729. And, under the circumstances here exhibited, the general reservation in the rule is of no avail. Molnar v. Hildebrecht Ice Cream Co., 110 N. J. L. 246; 164 Atl. Rep. 300. It is res adjudicata. Robins v. Mack International Motor Truck Corp., 113 N. J. L. 377; 174 Atl. Rep. 551; Hammond v. County of Monmouth, 117 N. J. L. 11; 186 Atl. Rep. 452.

We find nothing to support the claim that the court abused its discretion.

Judgment is affirmed, with costs.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    JAMES CUDDIHY, PLAINTIFF, v. HOBOKEN MANUFACTURERS RAILROAD COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Decided August 10, 1936.
    Por the plaintiff, J. Harry O’Brien.

    Por the defendant, Walter W. Hubley.

   Brown, C. C. J.

The plaintiff, as an employe of the defendant, instituted the above entitled cause for injuries sustained while working about the railroad of the defendant at the city of Hoboken. The plaintiff, by his motion, seeks to amend his complaint so as to charge that at the time he was injured the defendant was engaged in an interstate commerce operation. A new cause of action is barred at this time by virtue of the statute. The defendant opposes the motion and contends that the original complaint does not by any statement of fact charge an interstate commerce operation. The first paragraph of the complaint alleges that at the time of the occurrence the defendant was a corporation organized under the laws of the State of New Jersey as a freight carrier and doing business as such in the city of Hoboken, county of Hudson and State of New Jersey. The second paragraph reiterates the allegation that the defendant was a railroad freight carrier “and as such” on the date in question was the owner and operator of a train of freight cars attached to a flat car Ho. 200. The third paragraph contains the statement that the plaintiff was employed by the defendant “and was lawfully in and upon the aforementioned premises as a servant and agent of the defendant, and as such was lawfully on freight car No. 200 located in the j^ards of the defendant in the performance of his duties.” The fourth paragraph alleges that “while engaged in the interchange of freight cars the plaintiff attempted to alight therefrom to throw a switch and was * * * thrown to the ground through the negligence of the defendant.” The complaint does not allege thar the operation was one of interstate commerce nor does any statement appear therein from which such a conclusion could be drawn. On the contrary the operation is alleged to be local; within the State of New Jersey. No statement appears as in the original complaint in Tuthill v. Pennsylvania Railroad Co., 156 Atl. Rep. 633, that the railroad in question was operated between two states. In the ease of Seaboard Air Line Railway v. Penn, 241 U. S. 290, a case frequently cited in support of a motion to amend, the original complaint set forth that the defendant was operating a line of railroad in Virginia, North Carolina and elsewhere. Where there is some statement in a complaint disclosing that the railroad upon which the injury occurs is being operated between two or more states an amendment may be allowed to an original complaint that fails to state the operation is one of interstate commerce. Such an amendment does nothing more than amplify the cause of action already stated. In the instant case no statement of an interstate character appears in the original complaint. To grant the motion to amend would in effect permit the plaintiff to set forth a new cause of action after the same was barred by the statute. This cannot legally be done, even as a matter of discretion. Hogarty v. Philadelphia and Reading Railway Co., 98 Atl. Rep. 741. The motion to amend will be denied.


author: Calhoun, D. C. J.

text:
    Orange District Court.
    HELEN RESNICK, PLAINTIFF, v. CALEDONIA BUILDING AND LOAN ASSOCIATION, DEFENDANT.
    Decided May 8, 1936.
    For the plaintiff, Laurence Semel.

    For the defendant, Herman B. Lides.

   Calhoun, D. C. J.

Plaintiff sues to recover the sum of $500, the amount alleged to be due in excess of that amount being expressly waived. There is no serious dispute as to the facts involved. Briefly they are as follows:

On May 12th, 1924, Abraham Kaplan became a member of the defendant association and obtained a mortgage from it in the sum of $14,000, pledging, as collateral security for the payment of the same, seventy shares of the forty-fifth series of defendant’s stock.

On September 15th, 1925, plaintiff, Helen Besnick, purchased the mortgaged premises from Kaplan, assuming the mortgage, and the shares issued to Kaplan were assigned to plaintiff.

In June, 1932, plaintiff requested from defendant a statement of the amount due on her mortgage, and defendant’s secretary issued a statement showing the original amount of the mortgage to be $14,000, and charging five months due in arrears at $70 a month, making a total of $350, and five months’ arrears of interest at $70 a month, making $350, aggregating the sum of $14,700; and crediting dues paid in of $6,700 and profits of $1,891.84, making a total credit of $8,611.84, and leaving a net balance due of $6,088.16.

About February 1st, 1933, defendant issued another statement to plaintiff showing the amount of the mortgage to be $14,000, charging arrears of interest, $490, and February interest of $70, plus a withdrawal charge of $210 and fines of $35, increasing the gross amount of the mortgage to $14,805, and crediting for dues paid $6,860, and profits of $1,891.84 less twenty per cent., amounting to $378.36, making a net amount due on the mortgage of $6,431.52.

Plaintiff desiring to cancel her mortgage paid the above amount under protest, objecting specifically to the charge of three months’ interest amounting to $210 and the deduction of twenty per cent, of the profits amounting to $378.36.

On June 30th, 1930, a resolution was passed by defendant that mortgage holders desiring to pay off their indebtedness be charged an additional period of two months over what is due.

On April 15th, 1932, defendant passed a resolution to take effect as of March 1st, 1932, that on withdrawals, profits are to be paid at the rate of 10 per cent, of the amount of profits credited for each fiscal year that the shares have run.

Plaintiff claims that defendant had no legal right to arbitrarily deduct twenty per cent, of the profits, and further claims that defendant was guilty of usury in charging interest for three months in advance upon the payment of her mortgage as well as interest for the balance of the month of February; it having received payment in full for principal and interest on February 10th, 1933.

There is no question that defendant had the right, after one year, under section 49, Pamph. L. 1925, p. 211 (as amended by act of April 21st, 1932, Pamph. L., p. 161; N. J. St. Annual 1932, § 27-R (49), of the Building and Loan act, to withhold a reasonable share of the profits upon withdrawal by a shareholder prior to maturity, in anticipation of future losses.

Defendant’s constitution, article 2, section 6, also provides, inter alia, that after the first year withdrawing stockholders are entitled to such share of the profits as may be determined by the board of directors; and the board by resolution effective as of March 1st, 1932, provided that on withdrawals, profits are to be paid at the rate of ten per cent, credited for each fiscal year that the shares have run.

In arbitrarily deducting twenty per cent, of the profits allotted plaintiff’s shares, defendant does not appear to have complied with its resolution providing for a credit of ten per cent, for each fiscal year that the shares have run. No evidence was introduced by defendant to show what the amount of profits computed in accordance with its resolution would be, and I am of the opinion that the twenty per cent, deducted, amounting to $378.33 with interest from the date of payment, February 10th, 1933, should be repaid to plaintiff.

As to plaintiff’s claim that she was charged interest for the entire month of February, 1933, it is not contained in the state of demand and consequently is not considered.

Plaintiff also objects to the deduction by defendant of $210, for the privilege of paying off her mortgage prior to maturity; defendant justifies this deduction by virtue of a resolution passed June 30th, 1930, reading as follows: “A motion was made and seconded that until further notice mortgage holders who wish to pay off their mortgage be charged interest for a period of two months over what is ordinarily due.” It will be noticed that this resolution provides for the payment of two, not three, months of additional interest, and no authority to charge the $70 for the additional month’s interest by defendant has been shown.

Plaintiff is entitled to the return of the additional month’s interest charged her amounting to $70, plus interest from February 10th, 1933, the date of payment.

It might well be that plaintiff’s contention that the exaction by defendant of two months’ additional interest upon the repayment of its mortgage is usurious is sound, if the mortgage had matured; but in the case at bar, the mortgage was paid prior to maturity and payment could not have been demanded by defendant at that time.

The fact that defendant used the term “interest” in its resolution as to the payment to be made by stockholders desiring to withdraw prior to maturity is perhaps unfortunate, but is, in my opinion, to be construed as a yardstick to determine the additional amount to be charged for the privilege of so withdrawing.

A payment so made is not usury, either under our statutes or decisions, as it is not the taking of illegal interest for a loan of money, or the forbearance or extension of a debt, but on the contrary is a payment made by plaintiff for the sole privilege of anticipating her debt prior to its due date, and before demand for it could be made by defendant.

The payments made by plaintiff were all made under protest.

Judgment may be entered for plaintiff for the sum of $500, any amount in excess of that sum to be waived, as it exceeds the jurisdiction of this court.