author: Pek Ctjeiam.

text:
    STATE OF NEW JERSEY (HARRY L. MALONEY), COMPLAINANT-APPELLANT, v. AMANDA LYONS, DEFENDANT-APPELLEE.
    Submitted January 26, 1935
    Decided April 8, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    For the complainant-appellant, Samuel P. Orlando.

    For the defendant-appellee, Walter S. Keown.

   Pek Ctjeiam.

The complainant appeals because the defendant’s conviction as a disorderly person was set aside upon a summary review pursuant to law by a justice of the Supreme Court. The circumstance that the order was filed in the office of the clerk of the county of Camden did not make the judgment one in the Court of Common Pleas. This court has no jurisdiction of such an appeal. Jersey City v. Thorpe, 90 N. J. L. 520; 101 Atl. Rep. 414.

The appeal is dismissed.


source: Caselaw Access Project

author: Waldman, J.

license: Public Domain

text:
    Juvenile and Domestic Relations Court, Union County.
    GERTRUDE REHDER, COMPLAINANT, v. CLARENCE N. REHDER, DEFENDANT.
    Decided April 1, 1935.
    For the complainant, Benjamin, H. Priest.

    For the defendant, Myron L. Levy.

   Waldman, J.

Complainant and defendant were married at Charleston, South Carolina, on or about December 15th, 1921. They lived together for about ten years. In October, 1931, complainant filed a petition in the Juvenile and Domestic Relations Court of Union county charging the defendant with desertion and non-support, and on October 30th, 1931, the defendant was found guilty and ordered to pay complainant the sum of $5 a week. Payments, under order of the court, were made by defendant from time to time without question or complaint. On March 8th, 1935, a rehearing was granted to the defendant upon his petition in which he alleged that complainant had another husband living at the time she married the defendant and, therefore, the complainant is not legally his wife and he is under no legal obligation to support her, and further asking the court to vacate the former order and dismiss the entire proceedings.

At the rehearing the defendant introduced into evidence an exemplified copy of a marriage certificate wherein it is set forth that on March 3d, 1917, one John L. Archer was married to Gertrude Chaffin (admittedly the maiden name of complainant) at Pensacola, Florida. The defendant further testified upon direct examination that lie did not know of his wife’s previous marriage to Archer until early in the year 1935. He further stated that he never met Archer and admitted that he lived with complainant for sometime before he married her. Upon cross-examination defendant admitted that he was told about complainant’s prior marriage by her aunt in North Carolina, who they visited four days after their marriage on their trip north, and also that he knew of this former marriage for sometime past through what he termed “hearsay evidence.”

The complainant testified at the rehearing that the defendant knew that she was previously married at the time he married her and for that reason married her under the name of Laura G. Chaffin in Charleston, South Carolina, “to prevent any trouble.” Complainant did not deny that she was previously married to the said John L. Archer, but testified that she received a letter from him in 1919 stating that he was getting a divorce and that the defendant burned this letter shortly after he married her. She stated that she believed that Archer obtained a divorce in Virginia and that she has not seen him nor heard from him for at least sixteen years.

A question was raised at the rehearing as to whether the Juvenile and Domestic Relations Court has jurisdiction to determine the validity of the present marriage between the complainant and defendant. Hpon that point I shall hold that the Juvenile and Domestic Relations Court has jurisdiction to determine the validity of a marriage in non-support cases because it is elementary that if parties before the court are not husband and wife this court obviously cannot enter an order of support. Juvenile and Domestic Relations Courts, under chapter 157 of the laws of 1929 of the State of New Jersey, have jurisdiction to hear and determine disputes involving domestic relations under the act itself, or under the non-support provisions of “An act concerning disorderly persons” (Revision of 1898, Pamph. L., ch. 239, p. 942); 2 Comp. Stat. 1910, pp. 1926 et seq., pp. 1 et seq., “An act for the settlement and relief of the poor (Revision of 1924, Pamph. L., ch. 132, p. 252; Cum. Supp. Comp. Stat. 1924, pp. 161-124 et seq.), and the acts amendatory of and supplemental to the above entitled acts, together with any future acts, revisions, re-enactment, or new acts covering similar complaints or offenses, where the gravamen of the complaint under such acts is the failure or neglect of one member of the family to satisfy or discharge his legal obligations to another of a family. It also has jurisdiction to hear and determine in summary manner disputes involving the domestic relation, where the gravamen of the complaint is the failure to provide support or adequate support. In this very case complainant filed her petition in this court alleging that she was the wife of defendant, that he deserted her and that she sought support from him. It is very clear under the Juvenile and Domestic Eelations Court act that this court has jurisdiction to hear the exact type of case that complainant has brought on to be heard.

The reported decision of Judge Barison in the Juvenile and Domestic Eelations Court of Hudson county, in the case of Zito v. Zito, reported in 12 N. J. Mis. R. 761; 174 Atl. Rep. 421, is urged by counsel for complainant as dispositive of the law that Juvenile and Domestic Eelation Courts have not jurisdiction to determine the validity of marriages. A reading of this decision do'es not bear out the contention alleged by counsel for complainant. In that case Judge Barison refused to take jurisdiction because the husband, against whom a non-support complaint was filed, set up as a defense a decree of divorce obtained in Nevada, and Judge Barison held that the Juvenile and Domestic Eelations Court was not the proper forum to hear and determine any case where the validity of a foreign decree of divorce was involved. Also, in the Zito ■ ease' Judge Barison held that it is a prerequisite to an award of support in the case where the marital status is in issue, that the court must first determine whether or not the relationship of husband and wife exists. Unlike the Zito case the instant case does not involve a question of the legality or illegality of a foreign divorce, but it involves the fundamental question as to whether the parties to this issue are husband and wife.

The defendant has not sustained his case by a preponderance of the evidence. In order for the defendant to prevail upon this application he must prove not only the former marriage of complainant to Archer, but that the latter was alive when defendant married complainant, and that complainant had not been divorced. He must further prove that when he married complainant he did so in ignorance of these facts and under a belief that she was free to marry him if she desired to do so. Tyll v. Keller, 94 N. J. Eq. 426; 120 Atl. Rep. 6. The defendant is bound to affirmatively prove his allegations that complainant had another husband living at the time he married her. Keller v. Linsenmyer, 101 N. J. Eq. 664; 139 Atl. Rep. 33. This he has failed to do.

When the marriage between complainant and defendant was solemnized it was prima facie a valid marriage (Rex v. Twyning, 2 Barn. & Ald. 386; Vreeland v. Vreeland, 78 N. J. Eq. 256; 79 Atl. Rep. 336. Our Court of Errors and Appeals, in the case of Vreeland v. Vreeland, supra, adopted the view in the English case of Rex v. Twyning, supra, holding that when the validity of the marriage is attacked upon the ground that one of the parties to it had a husband or wife living at the time it was contracted the party asserting its invalidity must not only prove the former marriage but also that the former husband or wife was then living. At the rehearing in the instant case all that the. defendant showed was that complainant allegedly married a man named Archer some years before defendant’s marriage to her was solemnized. He did not assert nor prove that Archer was alive at the time of defendant’s marriage to complainant, and such failure of proof is fatal to his case. Our courts have recognized the strict necessity of such proof upon the party seeking to deny the validity of his marriage, and such requirement is enforced though it involves the proving of a negative. Keller v. Linsenmyer, supra.

Proof of a ceremonial marriage and living together in matrimonial relation raises a presumption of the legality of the marriage, and such presumption can only be overcome by clear and conclusive evidence of the validity of an alleged first marriage, and that such marriage subsisted at the time, the second marriage was entered into. The burden of showing this is on the petitioner (which would be the defendant in this case), and to' the extent of negativing every reasonable possibility of its invalidity. Keller v. Linsenmyer, supra.

As has frequently been said by our courts, while the law presumes a continuance of life until seven years have elapsed from the time the person was last heard of, such presumption is not conclusive; and inasmuch as there is no proof in the case sub judice that the alleged former husband was alive when the parties to this suit were married, other than such as the court regards to be inconclusive, and the presumption of continuance of life, if regarded, would make complainant guilty of a bigamous marriage, the presumption of complainant’s innocence of crime overcomes the presumption of such continuance of life, even though seven years have not elapsed. Keller v. Linsenmyer, supra; Vreeland v. Vreeland, supra.

In conformity with the foregoing views I shall deny the application of the defendant for a dismissal of the proceedings and order the defendant to support petitioner as heretofore ordered by this court.


author: Per Curiam.

text:
    CAROLINE HANDLER AND PAUL HANDLER, PLAINTIFFS-RESPONDENTS, v. KARL SCHANDELMEIER, DEFENDANT-APPELLANT.
    Submitted January 26, 1935
    Decided April 8, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    Bor the defendant-appellant, David Green.

    Bor the plaintiffs-respondents, John W. Palmer.

   Per Curiam.

The defendant appeals from a judgment in favor of the plaintiffs. About nine o’clock in the evening, Mrs. Handler was walking across a street intersection. The corner was poorly lighted. The defendant, without previous warning, was making a left-hand turn with his automobile into the street she was crossing. He was watching someone on the sidewalk and did not observe her until his car was very close to her. Being unable to stop the car, he knocked her down inflicting the injuries which probably permanently incapacitated her to some extent. The husband was obliged to expend large sums of money in her care.

We think neither a nonsuit or a directed verdict would have been proper, the issues being clearly for the jury. We can observe no reason why the trial judge abused his discretion in failing on rule to reduce the verdicts which were not excessive. Grounds of appeal not argued are deemed abandoned.

The judgments are affirmed, with costs.


author: Ackekson, S. C. C.

text:
    UNITED STATES RADIUM CORPORATION, A BODY CORPORATE, PLAINTIFF, v. GLOBE INDEMNITY COMPANY, NEW AMSTERDAM CASUALTY COMPANY, AETNA LIFE INSURANCE COMPANY AND AMERICAN MUTUAL LIABILITY INSURANCE COMPANY. BODIES CORPORATE, DEFENDANTS.
    Decided March 14, 1935.
    Por the plaintiff, Wall, Haight, Carey & Hartpence.

    Por the defendants Globe Indemnity Company and Aetna Life Insurance Company, Collins & Gorlin.

    Por the defendant New Amsterdam Casualty Company, Edwards, Smith & Dawson.

    Por the defendant American Mutual Liability Insurance Company, McCarter & English.

   Ackekson, S. C. C.

This action was submitted to the court, without a jury, upon an agreed state of facts. Plaintiff seeks to recover from four insurance companies, or from one or more of them, upon five liability policies, the sum of $10,000 heretofore paid to a former employe, Helen Tuck, and her husband, in settlement of an action for injury from radium poisoning alleged to have been sustained by said Helen Tuck while lawfully employed by plaintiff in its factory at Orange, New Jersey.

It appears from the stipulated facts that Helen Tuck was employed by plaintiff from May 29th, 1917, to August 24th, 1921, in mixing certain luminous materials with adhesives (the mixture being commonly known as radium paint), and applying said mixture to numerals and designs on watch dials and other objects, and while so employed, and in the course thereof, she “became affected with an occupational disease resulting from her employment, wherein she ingested by mouth” the mixture known as “radium paint” by placing the brushes with which she applied said paint “in her mouth for the purpose of pointing said brushes in order more readily to apply the paint, which practice extended throughout the period of her employment.” Her employment terminated on August 24th, 1921, “but the presence of radium in her system was neither a direct nor indirect cause of or factor in the termination of such emloyment.” There is attached to the stipulation of facts a copy of the complaint filed by Helen Tuck and her husband in their aforesaid action against the plaintiff herein, in which it is alleged that the radium paint so ingested has become impregnated in her body and “is of such an insiduous character that it did not produce the consequential injury to the health and body of the plaintiff” (Helen Tuck) “until the month of June, 1928.”

It is further stipulated that the settlement of the above mentioned action for $10,000, is, for the purpose of the present action, “to have the same force and effect as a judgment in favor of said Helen Tuck and her husband rendered in a trial of the said action against the plaintiff herein!”

It also appears that the plaintiff herein carried insurance against liability to its employes with the four defendant insurance companies herein covering the period Helen Tuck worked for the plaintiff, as follows: Globe Indemnity Company from November 4th, 1916, to November 4th, 1917; the New Amsterdam Casualty Company from November 4th, 1917, to November 4th, 1918, and by a renewal policy from November 4th, 1918, to November 4th, 1919; Aetna Life Insurance Company from November 4th, 1919, to August 20th, 1920, and the American Mutual Liability Insurance Company from August 20th, 1920, to September 1st, 1921.

The questions to be decided and the effect of such decisions are very carefully and exactly set forth in the stipulation of facts as follows:

“There are but two legal questions to be litigated and determined in this action. These questions are:

"First—Did the defendant companies, or any of them, by the terms of their respective policies, insure the plaintiff against liability to Helen Phillips (now Helen Tuck) and Walter M. Tuck, her husband, or either of them, on their claims which they made against the plaintiff herein, and sought to enforce by suit against it brought in the New Jersey Supreme Court, and removed by this plaintiff to the United States District Court for the District of New Jersey, which claims were compromised and settled before trial by the payment by plaintiff herein of the sum of $10,000 to said Helen Tuck and her husband, Walter M. Tuck. The defendants do not in this action contest the right to make said settlement, * * *.

“Second—If there is coverage under the said policies, what proportion of the said amount of $10,000 should legally be borne by each company ?

“All other questions are eliminated from this litigation.

“That the before stated questions shall be submitted to the court in which this action is pending for decision upon the facts herein stipulated, and judgment or judgments shall be entered in accordance with the answers which said court may make to the said questions; apy and all parties reserving the right to appeal from any such judgment or judgments.”

There can be no doubt that all of the policies involved herein cover two kinds or types of liability which are expressed in two separate paragraphs generally referred to as insuring agreements.

The defendants insist that the loss sustained by the plaintiff in its settlement with Helen Tuck and her husband is not covered by any of the policies because they cover only such losses as are sustained by the assured (plaintiff) on account of personal injuries to its employes caused by accidents (whether arising under the Workmen’s Compensation act (Pamph. L. 1911, ch. 95, p. 134; 2 Cum. Supp. Comp. Stat., p. 3868), at common law), and that radium poisoning is an occupational disease and not an injury by accident.

The plaintiff on the other hand contends that in these contracts of insurance the defendants undertook to protect the assured (plaintiff) against loss for all damages recovered against it by employes for all personal injuries sustained in their employment from whatever cause arising. That two kinds of personal injuries are covered by the policies. First, those contemplated in the Workmen’s Compensation act, i. e., loss caused by accidents, and second, all injuries to employes for which damages at common law, as distinguished from compensation under said act, are recoverable, whether arising from accidents or otherwise, and that therefore, injury by radium poisoning is covered by the policies.

It is stated in the stipulation of facts that radium poisoning is an occupational disease, and it is conceded that as such, injury therefrom was not compensable at the time these policies were in force under either section 1 or section 2 of the Workmen’s Compensation act as it then stood, because said act only provided for compensation or damages to an employe for personal injury by accident arising out of and in the course of his employment, and it is well settled that an occupational disease is not the result of an accident, at least within the meaning of said act as it then stood Liondale Bleach Works v. Riker, 85 N. J. L. 426; 89 Atl. Rep. 929; Smith v. International High Speed Co., 98 N. J. L. 574; 120 Atl. Rep. 188. Injury by radium poisoning was not made compensable under the act until the amendment of 1926. Pamph. L. 1926, ch. 31, p. 62.

It follows, therefore, that if these policies only cover liability for personal injuries falling under the provisions of the Workmen’s Compensation act, there could be no recovery against these defendants.

But even if the coverage of these policies is not so limited, nevertheless, a careful reading of their provisions will inevitably lead to the conclusion that the coverage afforded thereby does not extend beyond liability for personal injuries sustained by accidents and that injuries resulting from any other cause are not covered thereby.

It is conceded that the policies cover only bodily or personal injuries sustained by employes of the assured, and that the first insuring agreement deals exclusively with claims arising, at least under section 2 of the Workmen’s Compensation act, if not, as claimed by plaintiff, under section 1 thereof as well.

The second insuring agreement appearing in the Globe Indemnity Company’s policy reads (italics in all quotations ours) :

“To indemnify the assured against loss from the liability imposed by law upon the assured for damages on account of personal injuries, * * * accidentally suffered, * * * during the policy period * * *, by any employe or employes of the assured who shall not have elected to accept the provisions of the said act, * *

Paragraph VI of the policy requires the insurer:

“To pay, on account of personal injuries to which section 2 of the said act” (Workmen’s Compensation act) “applies, for medical and hospital services and medicines, subject to paragraph 14 and 14a of section 2 of said act, but on account of all other personal injuries to which this policy applies to pay only for such immediate surgical relief as is imperative at the time of the accident

Aside from certain general provisions which are common to all the policies and which will be hereinafter noticed, it will be observed that the coverage afforded by this policy is limited to “personal injuries * *■ * accidentally suffered,” which means arising out of accidents, as indicated by the provision last quoted, which limits the policy to “personal injuries to which this policy applies ” and not to all personal injuries, and which indicates to what injuries the policy does not apply by further stating that the insurer will not pay for general medical and hospital services and medicines, but only for such immediate surgical relief “as is imperative at the time of the accident

The second insuring agreement is identical in the1 policies of the Aetna Life Insurance Company and The American Mutual Liability Insurance Company, and, so' far as pertinent, reads:

“To indemnify this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries” (personal injuries) “to such of said employes as are legally employed wherever such injuries may bo sustained within the territorial limits of the United States of America or the Dominion of Canada.”

The coverage intended by this paragraph is controlled by paragraph YII of these policies which reads:

“This agreement shall apply only to such injuries so sustained by reason of accidents occurring during the policy period limited and defined as such in Item 2 of said Declarations.”

The item 2 of the declarations thus referred to merely fixes the period during which the policy shall remain in force—from a specific date to a specific date.

To avoid the effect of this positive limitation of the coverage of these policies, the plaintiff contends that the only purpose and object of this paragraph is “to point to' the provisions of the policies defining the policy period,” and that to hold otherwise would be permitting this independent paragraph to completely override a specific contract to indemnify plaintiff against all common law liability to1 its employes contained in the second insuring agreement above quoted.

There are many difficulties in the way of this contention. In the first place there are other provisions in the policies, common to all under consideration, and presently to be mentioned, which control the unlimited common law liability contended for by the plaintiff. In the second place item 2 of the declarations sufficiently specifies the policy period. The purpose of the paragraph is not ambiguous, but is perfectly plain. It is intended to define the coverage of the policy as including, not all injuries, but only such injuries as arise from an accident occurring during the policy period, so that a finger may be put upon an event (accident) occurring within the policy period to which the resultant injuries may be traced.

That paragraph YII above quoted is controlling in limiting the coverage afforded by these particular policies to injuries by accidents is emphasized by the conclusions reached in the ease of Maxson v. New Jersey Manufacturers Casualty Insurance Co., 10 N. J. Mis. R. 1164; 162 Atl. Rep. 427; and the ease of Belleville Enameling and Stamping Co. v. United States Casualty Co. (1932), 266 Ill. App. 586; certiorari denied, 266 Ill. App. XV 586. Both of these cases involved the interpretation of policies practically identical with the two here under discussion, and each contained a paragraph identical with paragraph VII above quoted, and the conclusion reached was that this paragraph limited the coverage of the policies to injuries by accidents.

In the course of the opinion in the case of Belleville Enameling and Stamping Co., supra, the court said:

“This policy does not in any part of the written contract contain any reference to an injury caused otherwise than by accident. Paragraph 7 That this agreement shall apply only to' such injuries so sustained by reason of accidents occurring during the policy period limited and defined as such in item 2 of said declarations/ is, to our minds, of compelling influence in the interpretation of the policy on the question at issue in this case.

“In order to give the policy the meaning insisted upon by appellee, it would in effect require the elimination or rewriting of paragraph 7 so as to make a new contract.

“Courts can only examine contracts as they are written and it seems plain to us that the policy covers what it purports to cover, that is—injuries sustained by reason of accidents.”

The two policies issued by the New Amsterdam Casualty Company are identical and in order to define the scope of the coverage it is well to notice both of the insuring agreements which provide that the company agrees as follows:

“To indemnify the Assured * * * against any payment under' the Compensation Law as specified in the endorsement hereto attached on account of bodily injuries acci-v dentally suffered while this policy is in force, * * * by any employe or employes of the assured * * *.

“To' indemnify the said Assured against loss from liability imposed by law upon the Assured for damages on account of bodily injuries or death, suffered by said employe or employes of the assured who are not covered by the said Compensation Law.”

That this latter paragraph refers to the type of injuries by accident, referred to in the preceding paragraph is emphasized by paragraph “E” of the “Conditions” of the policy which provides:

“Condition E. If the assured carries other insurance, not issued by this company, against loss or expense arising from an accident covered by this policy, the assured shall not be entitled to recovery from the company a larger proportion of the entire loss and expense than the amount hereby insured bears to the total amount of his insurance.”

Furthermore, these policies contain a paragraph designated “Condition A,” which is found in similar form in all of the policies involved in this action, and which bears a very important role in defining the coverage contemplated by all of them, viz.:

“Condition A. Upon the occurrence of an accident, the Assured shall give immediate written notice thereof with the fullest information obtainable at the time to the Executive office of the Company * * *. If a claim is made on account of such accident the Assured shall give like notice thereof with full particulars.”

It must also be noticed that nowhere in any of these policies is there any specific reference to an injury caused otherwise than by accident.

It would seem, therefore, that sufficient has been said to show that the policies here involved only cover injuries to employes sustained by accidents.

It remains, however, to consider whether an occupational disease, such as radium poisoning is conceded by the stipulation to be, is an injury by accident within the meaning of these policies.

As already observed, it is conceded, in view of the specific holding in Liondale Bleach Works v. Biker, supra, and Smith v. International High Speed Co., supra, that an occupational disease was not compensable under the Workmen’s Compensation act as it stood at the time these policies were in force, for the reason that an occupational disease is not the result of an accident, within the meaning of said act as it then stood. The plaintiff insists, however, that the word “accident” as used in the Workmen’s Compensation act, and hy our courts in construing and applying that act, has a narrower meaning than when it is applied to a common law right of action based on negligence. It is claimed that when defining “accident,” in compensation cases, our courts uniformly qualify its meaning by adding the words “within the meaning of the act,” or words of like import. Reference is made to Liondale Bleach Works v. Riker, supra, and Smith v. International High Speed Co., supra, for such qualification and the reason for it.

In the first of the above cited cases the court said, inter alia:

“The English courts seem at last to have settled that where no specific time or occasion can be fixed upon as the time when the alleged accident happened, there is no injury by accident within the meaning of the act. This seems a sensible-working rule, especially in view of the provisions of the statute requiring notice in certain cases within fourteen days of the occurrence of the injury—a provision which must point to a specific time.”

It will be noted that the reason last given for the rule is not the exclusive reason therefor. But even if it were, it applies with equal force in similarly limiting the coverage afforded by all of the policies involved in this action, because each of the policies contains the paragraph hereinabove quoted, providing in substance- that “upon the occurrence of an accident,” the assured “shall give immediate written notice thereof,” to the insurer. Surely, if these policies only cover injuries by accidents, the last mentioned paragraph points to a “specific time or o'ecasion” when the alleged injury must have happened in order to bring it within the coverage provided by these policies.

The plaintiff overlooks the fact that we are not immediately concerned with the word “accident” as applied generally to a cause of action arising out of an occurrence due to negligence, but with the specific question of whether the terms of certain contracts of insurance are sufficiently broad to comprehend injury due to an occupational disease, where the coverage is limited to injuries by accident, and where notice of the occurrence of an accident is required to be given to. the party to be held liable.

Indeed, there would seem to be no good reason why an injury by accident should receive a narrower meaning when appearing in the provisions of the "Workmen’s Compensation act, than when appearing-as the basis of coverage in an insurance policy where immediate notice of the occurrence of the accident is required to be given to the insurer.

At the close of the opinion in the case of Liondale Bleach Works v. Riker, supra, the court said:

“There may indeed be compensation awarded for resulting conditions where you can once put your finger on the accident from which they result; but the ground of the action fixed by the statute is the injury by accident, not the results of an indefinite something which may not be an accident.”

So’ here, the ground of an action under these, policies must be bodily injury due to an accident, and not the result of an indefinite something which may not be an accident.

It is to be noticed that the plaintiff has expressly stipulated that the injury which forms the basis of the present claim is “an occupational disease resulting from her” (Helen Tuck’s) “employment, * * *; which disease has recently become known as radium poisoning.”

In the case of Smith v. International High Speed Co., supra, the claim was based upon an industrial disease arising from breathing fine particles of metallic and mineral substances which were thrown into the air as the result of the plaintiff’s work. In the course of the opinion Mr. Justice Bergen said:

“I think a disease, such as is described in the complaint, is not the result of an accident, and that a recovery for injuries therefrom is not confined to the Workmen’s Compensation act.”

It would seem, therefore, that by admitting that Helen Tuck’s injury is the result of an occupational disease, the plaintiff has put the present claim squarely within the foregoing observation of Mr. Justice Bergen, and that the injury complained of is not the result of an accident.

Furthermore the plaintiff’s claim is not covered by any of these policies, for the further reason that there is no proof before the court of any personal injury by accident within the specified policy period of any one of the policies here involved.

Each one of these policies limits liability thereunder to injuries occurring during the policy period. The stipulation of facts expressly states that Helen Tuck was employed by plaintiff from May 29th, 1917, to August 24th, 1921, in work consisting of mixing radium paint and applying it to watch dials and other articles. During the entire term of her employment Mrs. Tuck was engaged in the work described above, “and while so employed she, in the course of her employment, and while doing said work, became affected with an occupational disease resulting from her employment, wherein she ingested by mouth, a mixture commonly known as ‘radium paint;’ which disease has recently become known as radium poisoning.” Her employment ended on August 24th, 1921, “but the presence of radium in her system was neither a direct or indirect cause of, or factor in the termination of such employment.” As hereinbefore mentioned, the complaint filed by Helen Tuck and her husband against the plaintiff in the previous action which was settled, alleged that the radium paint so ingested was of “such an insiduous character that it did not produce the consequential injury to the health and body of the plaintiff” (Helen Tuck) “until the month of June, 1928.”

There is nothing else before the court to assist in fixing the time of Helen Tuck’s injury. If we fix it at the time when the “consequential injury” became apparent in the month of June, 1928, it is long after the coverage period of any of the policies in question. If we attempt to bring it within the time she was employed we have nothing more substantial upon which to rest than the statement in the stipulation that “while so employed she, in the course of her employment, and while doing said work, became affected with an occupational disease * * Just when she became affected during the period of her employment, whether during a particular day, month or year, does not appear. Countless assumptions could be made as to when she was harmed, but they would be nothing more substantial than assumptions. Furthermore the settlement of $10,000 evidently covers all damages from the alleged injuries, and there is no factual basis from which to ascertain what proportion of said amount should be borne by each company. The facts stipulated furnish no more basis for saying that the effect of the occupational disease was spread evenly over the whole period of her employment, than for saying she was affected only during the first week or year of her employment or the last week or year thereof. There is nothing before the court to settle such questions.

For the reasons hereinbefore stated the first legal question propounded in the stipulated facts, viz., whether any of the policies here involved insured the plaintiff against liability on the compromised claims made against it by Helen Tuck and her husband, must be answered in the negative.

This answer to the first question makes it unnecessary to answer the second question further than to say that no part of the $10,000 settlement should be borne by any of the defendants herein.

The court, therefore, finds in favor of the defendants and against the plaintiff, and a judgment of no cause of action may be accordingly entered.


text:
    WARNER D. ORVIS ET AL., PLAINTIFFS-APPELLEES, v. EMILIE R. EMMONS, DEFENDANT-APPELLANT.
    Submitted January term, 1935
    Decided April 11, 1935.

      Before Brogan, Chief Justice, and Justices Parker and Bodine.
    For the plaintiffs-appellees, Fast <& Fast (Louis A. Fast, of counsel).
    Por the defendant-appellant, Samuel Morris.

   Per Curiam.

This is defendant’s appeal from a judgment entered in the Common Pleas Court of Atlantic county, the trial court having directed a verdict in favor of the plaintiff and against the defendant. The suit is on a check given the plaintiff by the defendant which was not honored because the defendant stopped payment.

The grounds for reversal are six in number. The first two challenge the action of the trial court in allowing in each instance a witness to answer a question. These two grounds for reversal are not available to the appellant for the reason that counsel has not, on the record before us, made out a good ground of appeal. _ Counsel, in opposing the question, merely says, “I object,” but assigns no legal ground for his objection. This course is unavailing. The ground of objection must be stated to the trial court in order that he may know the reason for the objection and in the absence thereof the action of the trial court, in receiving or rejecting testimony, cannot be made a ground for appeal.

The third and fifth grounds for reversal are not argued and are therefore considered as abandoned.

The fourth ground urged for reversal that the court erred in admitting over objection Exhibit P-2, which we observe was a copy of what is known as a "margin” agreement, used between broker and customers who trade on margin or part credit, we think is unavailable because the exhibit complained of is not included as part of the record. We further think the point cannot be meritorious since at one stage in the trial of the case, during the cross-examination of the defendant, counsel withdrew his objection to “the proof of the copy.” For these reasons we do not think the point should be considered.

The last ground is that the trial court erred in directing a verdict for the plaintiff. This point is argued in a general sort of fashion and the best we can make out of it is that appellant claims a verdict should not have been directed because there was a failure of consideration for the check in question. The plaintiff was a stock broker and was carrying an account for the defendant on margin. The defendant’s check was delivered at the time that the sharp decline in the price of securities began, which was on or about October 29th, 1929. From the evidence in the case, it is clear that the plaintiff’s statement of account between itself and the defendant showed an unfavorable balance in the defendant account of over $7,000. This of course was ample consideration for the plaintiff requiring and the defendant giving, at the time, the check which is the subject-matter of this suit.

Appellant also argues, in passing, that the buying of stocks on margin is a transaction interdicted by the Gaming act. 2 Comp. Stat., p. 2623. Plainly it is not. Kendall v. Fries, 71 N. J. L. 401; 58 Atl. Rep. 1090; Carpenter v. Kilborn et al., 109 N. J. L. 570; 162 Atl. Rep. 747. We notice an inconsistency between the complaint and the judgment which, however, is not challenged, and therefore needs no comment.

The judgment will be affirmed, with costs.


text:
    JENNY F. PLIMPTON, PLAINTIFF, v. LOUIS FRIEDBERG ET AL., DEFENDANTS.
    Argued January 15, 1935
    Decided April 11, 1935.
    Before Justices Lloyd, Case and Donges.
    Por the plaintiff, Clarence L. Cole.

    Por the defendants, William Charlton.

   Per Curiam.

There have been two trials of this action. The first trial resulted in a judgment fór the defendant which was reversed by the Court of Errors and Appeals. Plimpton v. Friedberg, 110 N. J. L. 427; 166 Atl. Rep. 295. Motion is now made for a writ of capias ad satisfaciendum. We have before us the record as it went to the Court of Erro'rs and Appeals, but we have no record or transcript of what transpired subsequent thereto. There is nothing before us upon which the writ may issue.

The motion is therefore denied, with costs.


author: Brogan, Chief Justice.

text:
    BYRON R. CHRISTIE, WILLIAM HINTENBERGER, MICHAEL BRODA AND JOHN CUOCO, PROSECUTORS, v. MAYOR AND COUNCIL OF THE CITY OF GARFIELD, BERGEN COUNTY, NEW JERSEY, A MUNICIPAL CORPORATION, RESPONDENT. JOHN A. DWYER, PROSECUTOR, v. MAYOR AND COUNCIL OF THE CITY OF GARFIELD, BERGEN COUNTY, NEW JERSEY, A MUNICIPAL CORPORATION, AND JOSEPH J. NOVACK, CITY CLERK OF THE CITY OF GARFIELD, RESPONDENTS.
    Submitted January term, 1935
    Decided April 9, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    For the prosecutors, Richard J. Baker.

    For the respondent, Joseph F. Matisovsky (Robert Carey, Harry Lane and Joseph F. Matisovsky, of counsel).
   Brogan, Chief Justice.

The writ of certiorari in the instant case was allowed to review a resolution and ordinance of the governing body of the city of Garfield which accomplished the demotion or reduction in rank of the prosecutors as follows: Byron Christie, from police captain to sergeant of police; William Hintenberger, from captain to sergeant of police; John Cuoco, from lieutenant of detectives to patrolman; Michael Broda, from lieutenant to sergeant of police, and John A. Dwyer, from desk captain to desk sergeant. The last demotion was accomplished by ordinance; the preceding demotions by resolution.

It appears that Christie was promoted from sergeant to captain; Hintenberger, from sergeant to captain; Broda, from sergeant to lieutenant; Cuoco, from patrolman to lieutenant; Dwyer, from sergeant to captain, all on the same date, December 28th, 1931.

At the time these resolutions were presented there were thirty-six men in the police department, fifteen of whom were superior officers of one class or another above the grade of patrolman.

In the return to the writ it also appears that prior to the adoption of the resolutions and ordinance complained of, a survey of the police department was made by the members of the safety committee. In the report submitted, the committee called attention to the promotions of December 28th, 1931, and further pointed out that the personnel of the department consisted of a chief, deputy chief, four captains, five lieutenants, four sergeants, and twenty-one patrolmen; that the number of superior officers made “the police department top-heavy;” that because of the great number of superior officers, the department is “inefficient and patrol duties imperfectly performed;” that there was no necessity for so many superior officers; that the increased cost entailed by the promotions in question was unnecessary and that the financial condition of the city didn’t warrant the needless expense. The committee then, as the report states, in the interest of efficiency and for purposes of economy, recommended that the officers in question be reduced to the respective ranks occupied by them prior to their promotion of December 28th, 1931.

It further appears that in the month preceding the action of the governing bo'dy in making these changes, but subsequent to the report of the safety committee, the officers in question offered, for the year 1934; to “donate the amount of the additional compensation” over and above what they were receiving prior to their promotion, to the city of Garfield, or, to put it another way, to waive, for the year 1934, the amount of the increase in their compensation over and above what they had received in their previous status. No action was taken by the municipality on this offer.

Depositions were taken after the allowance of the writ. The reasons for reversal challenge the resolution and ordinance on several grounds, three of which are argued.

The first point made is that the demotions were not made for reasons of economy. It will be noted at the outset that there is no charge of unjust discrimination made. It is not asserted that the prosecutors were older in service in the respective ranks from which they were demoted than others of the department who were unmolested. It is obvious that the demotions which reduced the several prosecutors to lower rank and consequent lower salaries did effect an economy'—• just how much is not stated. We may fairly assume that the pay of a captain is greater than that of a sergeant and so on. The fact that the prosecutors offered to waive the excess or donate it to the use of the municipality is of no great materiality. The offer to waive was limited to the year 1934, and is of course a gratuitous one and not based upon any legal consideration, but be that as it may, it is difficult to understand how it can successfully be argued that the demotions did not accomplish some economy in the municipal expenditures. That a decrease in the cost of the department results in an economy of money is a self-evidence fact. This brings us to the second and third points, viz., that the demotions were not made to improve efficiency and were not made in good faith or for the betterment of the public service.

As to the second reason, it will be remembered that a survey was made of the police department. It is not easy to perceive how with a total force of thirty-six men, efficiency should require that fifteen of them should hold superior rank for the regulation and command of twenty-one men doing patrolman’s work. Common sense leads one to the opposite conclusion. Our examination of the testimony, particularly the excerpts pointed out in the brief filed on behalf of the prosecutors, does not at all convince us that this reduction in the number of superior officers would not make for greater efficiency.

As to the final point that the municipal action was not taken in good faith, we can only say that there is nothing in the case before us that persuades us that the action taken was the result of a determination to persecute, harass or punish the men thus reduced in rank.

On certiorari, as in all other cases of a civil nature, the burden is upon the moving party to prove the merit of his cause by a preponderance of the evidence. The evidence before us does not persuade us that this has been done. This is essentially a fact ease and in reviewing the facts it seems to us manifest that the municipal action under review was taken in the interest of economy and efficiency. If such action was taken in good faith, and from the evidence we cannot find to the contrary, it was a legitimate exercise of the municipal power. Harker v. Bayonne, 85 N. J. L. 176; 89 Atl. Rep. 53; Ziegler v. Hackensack, 113 N. J. L. 215; 174 Atl. Rep. 199. “The court will not substitute its judgment on matters of this kind that concern the regulation of internal affairs of a municipal department for the judgment of those selected by the people and charged by law with the duty of regulating such affairs, in the absence of a clear showing of bad faith. Blair v. Brady, 11 N. J. Mis. R. 854; 168 Atl. Rep. 668.

The respondents are entitled to judgment and the writ will be dismissed with costs.


text:
    CITY OF BAYONNE, A MUNICIPAL CORPORATION, PROSECUTOR, v. STATE BOARD OF TAX APPEALS AND INGRAM-RICHARDSON CORPORATION, A CORPORATION, RESPONDENTS.
    Argued January 16, 1935
    Decided April 13, 1935.

      Before Justices Heher and Perskie.
    Por the prosecutor, Alfred Brenner.

    Por the respondent Ingram-Eichardson Corporation, John B. McGeehan.

   Per Curiam.

The sole question presented for determination is the propriety of the action of the state board of tax appeals in reducing an assessment made by the local authorities, for the purposes of taxation, covering improvements upon lands in the city of Bayonne, owned by respondent Ingram-Eichardson Corporation. The Hudson county board of taxation affirmed the assessment. The appeal covered also the assessment upon the lands and personal property. At the hearing before the state board, the appellant withdrew its objections to the latter assessments. The state board reduced the assessment upon the improvements from $169,000 to $150,000. The municipality thereupon sued out this certiorari, and now alleges that there was no legal evidence upon which the reduction could be predicated.

We find this claim to be devoid of merit. The prosecutor’s witness, Yinik, appraised the improvements, as of October 1st, 1932, the taxing date, at $185,358. This represented what the witness conceived to be the reproduction cost, $218,067, less depreciation of fifteen per cent. The landowner’s expert witness placed the reproduction cost at $156,493, and depreciation at twenty per cent. Therefore, the net value was, in his opinion, $126,155. It is true that this witness did not consider, in the making of his appraisement, certain items of construction, i. e., plumbing and heating, stoker and blower, sprinkling system, electric wiring, and a baking oven and furnace. But, considering these items, we are of opinion that the state board was entirely justified in reducing the assessment to' the sum mentioned. The president of the board viewed the property; and the board was unanimous in its conclusion. The board was privileged to use its own knowledge and judgment in the appraisement of this property for tax purposes. City of Bayonne v. State Board of Taxes and Assessments, 11 N. J. Mis. R. 694; 167 Atl. Rep. 880; Long Dock Co. v. State Board of Assessors, 86 N. J. L. 592; 92 Atl. Rep. 439; Lehigh Valley Railroad Co. v. State Board of Taxes and Appeals, 12 N. J. Mis. R. 673; 174 Atl. Rep. 359. The evidence, in our opinion, fairly supports the challenged judgment.

Judgment affirmed, with costs.


author: Pee CtTEIAM.

text:
    JAMES MOORE, PLAINTIFF-APPELLEE, v. PEOPLE’S PALACE, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted January term, 1935
    Decided April 13, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    Por the plaintiff-appellee, George T. Vickers.

    Por the defendant-appellant, David M. Klausner.

   Pee CtTEIAM.

The case on appeal was tried in the Hudson County Court of Common Pleas, the jury finding for the plaintiff, and from the judgment accordingly entered the defendant corporation appeals. The following are the pertinent facts:

The defendant is the owner of a building known.as People’s Palace in Jersey City and had rented out three rooms to a lodge of which the plaintiff was a member and officer. On March 14th, 1931, an accident, in which the plaintiff was injured, occurred. The accident in question happened in one of the rented rooms, which might be called a locker room, adjoining the lodge room. In this room were several lockers containing the paraphernalia of the lodge. Prom one of the exhibits in the case, it appears that two of the lockers, to wit, those numbered four and five, were affixed to the wall at a height of perhaps nine feet above the floor. The defendant had provided a ladder for the use of the tenant to gain access to1 these lockers. Just before the evening meeting of the lodge, the plaintiff had ascended the ladder and was in the act of taking out some lodge property from these lockers when the ladder gave way or slipped from under him, as the complaint charges, and the plaintiff fell to the floor and suffered a broken knee-cap.

The defendant is charged with negligence in that it maintained the said room in an unsafe condition by permitting the floors thereof to be in an “oily and slippery condition” and by “providing the ladder aforesaid which was unsafe and out of repair” and unsatisfactory for the purpose for which the defendant placed in there, namely, to reach the said lockers.

The appellant urges that the court below fell into error in the trial of the cause in (a) rejecting defendant’s motion for nonsuit; (b) in refusing to direct verdict for defendant, and (e) in the admission of testimony.

In the plaintiff’s case it was developed that when the plaintiff was on the ladder, engaged in bringing some property out of the lockers, for use at the lodge meeting that night, the ladder slid across the floor causing him to fall and suffer the injury mentioned. It appears that the ladder originally was of the “spreader” type, that is, one having a hinge midway between the top and bottom connecting the front and rear upright sections. This ladder, however, while it had been one of the spreader type, had no spreaders on it at the time of the accident but instead, the rear .upright, as we understand the testimony, was bound to the front section with wire. Affixed to the top of the ladder, apparently as some sort of a substitute for the security of the “spreader” was a “cleat” or angle iron, one part of which was screwed into the platform top of the ladder and the other part of which was calculated to rest, and in this case did rest, upon the wooden projection which formed the floor of the lo'ckers in question which were, as has been said, a matter of nine feet above the floor of the room.

It further appeared in the testimony of the plaintiff that after his fall it was discovered that the part of the iron cleat which had been screwed into the platform top of the step ladder had been torn loose therefrom, the cleat itself remaining on the floor of the locker.

The negligence charged in the complaint relates to' the slippery condition of the floor and the providing of a ladder which was “out of repair” and “unsafe” for the uses for which it was intended. The closest scrutiny of the testimony in this case convinces us that these charges of negligence were not proved nor was there any proof from which the negligence of the defendant might be inferred.

First, as to the ladder: Assuming as we must that the ladder was as stated by the plaintiff’s witnesses, none the less, in our judgment, it falls short of establishing negligence on the part of the defendant. True, the ladder had been converted from what, in the testimony, is called the spreader type to the ordinary type and that it had affixed to its top step or platform a cleat or angle iron, one part of which was screwed into the top step or platform of the ladder and another part of which rested on the floor of the locker. There is no proof that this appliance was out of repair or that it was an unusual fixture such as to render the ladder unsafe. In the absence of proof that it was so, we cannot assume that it was so unusual an appliance as to render the ladder unsuitable for the use for which it was intended. It may be that the weight of the plaintiff, in ascending the ladder, tore the cleat loose from its fastenings. This alone would not prove negligence. There is no proof before us that the fixture in question was loose or out of repair or if it was that the defendant had notice thereof or was chargeable with notice. The doctrine of res ipsa loquitur is not helpful to the plaintiff. It has no application to the facts before us. The doctrine of res ipsa loquitur is applicable when the mere happening itself bespeaks negligence. The facts before us do' not bespeak negligence but merely the happening of an accident. The proofs before us on this particular do not contain facts that spell negligence or testimony from which negligence might be inferred.

This brings us to the second point upon which the plaintiff relies to convict the defendant of negligence, viz., negligent maintenance of the floor. Defendant’s counsel, in examining the witness, McArthur, on cross-examination, brought out testimony as to the condition of the floor as follows: “Q. When you say oiled—what kind of oil was on the floor? A. Floor oil. Q. Greasy floor oil? A. Yes. * * * Q. And was the floor polished with this oil? A. I wouldn’t call it polished, just an oil that was used to bring out the grain of the wood, I suppose. Q. Heavier than should ordinarily be put on? A. I should imagine.”

Even this testimony doesn’t permit the conclusion that the oiling of the floor was improperly done or that the oil used for bringing out the grain of the wood, as the witness says, was anything out of the ordinary kind of oil which is used for treating floors. Abt v. Leeds, Lippincott Co., 109 N. J. L. 311; 162 Atl. Rep. 525. The mere happening of an accident doesn’t give rise to the inference of negligence. We are of the opinion that negligence on the defendant’s part was not proved and that the defendant’s motion for a non-suit should have been granted.

The judgment is reversed and a venire de novo awarded, costs to abide the event.


text:
    VITO LEMONGELLI, PETITIONER-RESPONDENT, v. THE CARLSON COMPANY, RESPONDENT-PROSECUTOR.
    Argued January 16, 1935
    Decided April 15, 1935.
    Before Justices Heher and Perskie.
    For the prosecutor, Kalisch & Kalisch.

    For the respondent, Cohen <& Klein.

   Per Curiam.

Our study of the record submitted, leads us to the conclusion that it presents no debatable question, and accordingly the writ of certiorari is denied.


text:
    JAMES HARRAN, PROSECUTOR, v. FORD MOTOR COMPANY, RESPONDENT.
    Argued January 16, 1935
    Decided April 15, 1935.
    Before Justices Heher and Perskie.
    For the prosecutor, David Roskein and Harold Krieger.

    For the respondent, McCarter & English.

   Per Curiam.

Our study of the record submitted, leads us to the conclusion that it presents debatable questions, and that the entire case should be reviewed; accordingly the writ of certiorari is allowed.


author: Sieglbr, J.

text:
    Juvenile and Domestic Relations Court, Essex County.
    MABEL BLACKWELL, PETITIONER, v. HOWARD G. BLACKWELL, DEFENDANT.
    Decided January 19, 1935.
    Eor the petitioner, Jacob T. Friend.

    Eor the defendant, Levenson, Comen & Levenson (by Abe D. Levenson and Nathan A. Whitfield, of counsel).
   Sieglbr, J.

This is an action for support and maintenance brought under the provisions of the Juvenile and Domestic Delations act of 1929 (Devision), alleging as its major ground for relief extreme cruelty by the defendant. The petition was filed on May 4th, 1934, and the acts of cruelty complained of took place on several occasions prior to April 24th, 1934.

I have very carefully considered all of the testimony, briefs, exhibits, and pleadings in this matter. The parties were married on March 5th, 1919, and resided in the town of Montclair most of their married life. Two children were born of the marriage, now of the ages of fourteen years and ten years. The petitioner in 1929 left her husband because of the unkind names and things the defendant allegedly said and did, and his disparaging remarks about her to persons in the neighborhood. Petitioner claims that the defendant tried to turn her mother and father against her; and that on another occasion he had refused to retire to bed with her, and when he did he saturated her pajamas with mentholatum or some other irritant, causing her much anguish. Reconciliation followed four months later. They appeared to' be happy for about a year when, she charges, similar annoyances by the defendant began disturbing the social and marital calm of the home. She says the defendant resorted to many annoying practices; to wit.: listening to conversations of petitioner over the telephone; putting a padlock on the garage to deprive her of use of the automobile; and frequent verbal threats to “drive her crazy and break her damned neck.”

It appears that the petitioner worked the greater part of her married life and used the income from these exertions for her own use, and that defendant did not provide adequately for all her needs, and that she was thus constrained to' accept employment to meet her financial requirements. The children were left at home, during her working hours, in care of a maid. She did furnish slight requirements to the children in the morning and sometimes in the evening when she returned.

The petitioner testified that except for these incidents she enjoyed the hospitality, society and companionship of her husband in and out of the home. They entertained friends and accepted invitations outside their home. In February, 1934, the petitioner had a breakdown and was in bed for two weeks under the doctor’s care. She describes an incident early in March as follows: As she was about to go to business one morning her husband insisted that she remain in bed. She refused; whereupon he kicked her with great force, throwing her against a dressing table, as a result of which she received a severe bruise on her thigh. He then picked up a shoe and threw it at her, but missed; the shoe, however, struck the dresser, knocked the lamp off and broke a perfume bottle. She, nevertheless, continued to live with her husband after this episode.

She tells of another incident early in April, after returning from a dinner with her husband and friends in Hew York City. They were about to retire when he commenced to pace up and down the room, calling her vile names and accusing her of diverse acts of improprieties; he then threw various missiles at her and finally struck her in the back of the head with a shoe. She complains of petty annoyances by the defendant for ten days thereafter until, on April 23d, 1934, petitioner left the defendant’s home and went to live in a furnished room. She left her children in the custody of her husband where they have been ever since.

Among other things, she charges that on several occasions the defendant falsely stated to her that he saw the petitioner running around with other men and accepting their society; and that he told many of petitioner’s friends derogatory things about her in connection with their married life, all of which she alleges caused her considerable mental anguish. The petitioner also claims that there was an undue demand on the part of the defendant for cohabitation, which undermined her health.

The other witnesses produced by the petitioner indicate that the petitioner and the defendant were always found to be hospitable and respectable persons; that on some few occasions the defendant had spoken disparagingly o'f his wife to them concerning her leisure time activities.

To best illustrate the state of mind of the petitioner at and about the time she finally left him, I quote from her testimony, state of case, page 62: "Q. When you left him, did you tell your maid, T am going to get a divorce?’ A. The last time I left; yes, I did. Q. Did you mean that? A. I certainly did. .Q. Did you say, T hate him’ [meaning the husband] ‘I cannot tolerate him, I don’t want him near me?’ A. I probably said it. Q. You meant it, too, didn’t you? A. I did. Q. You said on that note, ‘with love and kisses, pooh.’ A. Yes. Q. You meant that, too, didn’t you? A. That is just the way I felt. Q. And you had been feeling that way for a long time after, haven’t you? A. I have.”

The defense is a denial of all that the petitioner has said as to physical violence. Mrs. Mitchell, a maid in the home at the time of the separation and for a year prior thereto, and who co’uld support petitioner’s charges, if true, testified that she never observed any act of cruelty, nor was she told of any assaults upon petitioner as stated by petitioner. She did not see Mrs. Blackwell come out of the room crying on the morning petitioner says she was struck. Mrs. Mitchell tells of a conversation she had on the morning Mrs. Blackwell left the home; that she asked Mrs. Blackwell not to go and Mrs. Blackwell said that she made up her mind and she would not change it. She further testified that Mr. and Mrs. Blackwell went out to a party in New York City for dinner the night before she left her husband. She also said that she was present when Mrs. Blackwell kissed a man who was then in the living room at a party held in her home several months prior to the separation. She also testified that Mrs. Blackwell told her about a Mr. Buckley, whom she met at a birthday party in a studio where Mrs. Blackwell was employed, and that petitioner said he was very nice. Mrs. Blackwell made an arrangement with her, the witness said, that if Mr. Buckley called on the telephone and Mr. Blackwell was in the home at the time, she (Mrs. Mitchell) was to take the telephone call and tell Mr. Buckley “Beverly is not in.”

The testimony of Mrs. Parker is a recital of admissions by Mrs. Blackwell of her activities which, to say the least, are suspicious and seem to' corroborate much of the testimony of Mrs. Mitchell.

The witness Sid Kalli testified to a clandestine meeting of Buckley and Mrs. Blackwell in a room behind the studio. He (Sid Kalli) saw Buckley kiss her and call her “darling” and “sweetheart;” and told of the chase with Mrs. Blackwell in an automobile to overtake Mr. Buckley at Ampere Parkway, Bloomfield.

Christine Gustavson, a former employe of the Blackwells, states that Mrs. Blackwell said to her, “Mr. Blackwell didn’t know how to love, any more than a jack rabbit.” There was also the episode that happened in October, 1934, at the home of Mr. Leach. Mr. Kestner, a guest there, had arranged to go to the Pour Towers by taxi with Mrs. Blackwell, when Mr. Blackwell suddenly appeared on the scene as they were about to enter the cab. Kestner knew that Mrs. Blackwell was a married woman who had at that time been separated from her husband for several months. It was Mr. Blackwell’s appearance on the scene that broke up the plan of the trip.

These episodes incited the defendant to pursue her and to confront her with the impropriety of engaging in these affairs.

I am satisfied that the defendant is a proud and respectable man, and that he loves his wife dearly and would welcome her return to his home at any time. The petitioner, however, seems to be flirtatious, to say the least, and apparently cares little or nothing for the defendant; and yet, strange as it may seem, I am satisfied that he continues to love her. The evidence satisfies me that the petitioner did not conduct herself as a wife should, and the defendant would hardly have been a normal man if he had not bitterly resented her actions. She was constantly wounding his amour propre. I have no doubt that at times he would give her a tongue lashing and a shaking up. The petitioner seemed to find a perverse satisfaction in arousing the defendant’s jealousy and in seeking to annoy him in many petty ways. I am of the opinion that the testimony of the petitioner has been exaggerated. It appears clear that the petitioner received the treatment she deserved.

In the quest for the truth, courts are not bound to accept as verity statements of incidents not directly denied, if the body of the testimony refutes them. Much, if not all, of petitioner’s story concerning the cruelties is pure fancy, and its inspiration and development are not obscure. I find that any accusations made by the defendant and leveled at the petitioner were justified by her conduct. He did not merely make them and then forget about establishing the truth of them, but he actually brought petitioner’s improper conduct to her attention and begged and pleaded that she desist. This he had a right to do even to the extent of protecting her against her own vice. Authorities on this point are too numerous and elementary to even require citation.

I find it a fact that when Mrs. Blackwell left her husband on April 23d, 1934, it was not because of any cruel treatment that was inflicted upon her by Mr. Blackwell prior to her leaving, but was the result of a determination long fixed in her mind that she no longer could carry on and discharge her sacred responsibilities as a wife and a mother. Leaving the children as she did is strong evidence that she was searching for her own personal and selfish social comfort rather than sacrificing herself on the altar of that which might be for the best interest of her children.

It has been held in Thomas v. Thomas, 87 N. J. Eq. 668; 103 Atl. Rep. 675 (the next to the last paragraph on page 677 of the opinion) :

“If the wife, knowing the disposition of her husband, persists in a course of conduct that brings on a state of facts of which she complains, she is not entitled to relief. Duvale v. Duvale, 34 Atl. Rep. 888; affirmed, 65 N. J. Eq. 771; 60 Atl. Rep. 1134. She had it in her power to stop the acts of which she complained.”

A long line of eases commencing with Close v. Close, 10 C. E. Gr. (25 N. J. Eq.) 529; Taylor v. Taylor, 73 N. J. Eq. 745; 70 Atl. Rep. 323, and recently in the Court of Errors and Appeals (Sachse v. Sachse, 107 N. J. Eq. 41; 151 Atl Rep. 744), speaking through Judge Hetfield:

“It is impossible to define, with accuracy, the exact meaning of the term ‘extreme cruelty’ as used in the statute which provides for an absolute divorce on that ground, but this court in Doty v. Doty, 92 N. J. Eq. (at p. 660); 114 Atl. Rep. 546, has approved the rule as stated by Vice-Chancellor Van Fleet in Black v. Black, 30 N. J. Eq. (at p. 221), wherein he said, ‘to justify a divorce a mensa ei thoro, actual pltysical violence need not be proved, but such conduct by the husband must be shown as will justify t the court in believing that if he is allowed to retain his power over his wife and she is compelled to remain subject to him, her life or her health will be endangered, or that he will render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife. Close v. Close, supra; English v. English, 12 C. E. Gr. (27 N. J. Eq.) 585.”

It is the duty of the wife to live with her husband at his home and give him her services and society. Erom these obligations she is relieved only if she can show that the conduct of her husband is such as will reasonably convince the court that her life or health are endangered, or her life rendered one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of the wife, or that the conduct of the husband, if continued, would have brought about these conditions. Taylor v. Taylor, supra; Pinkinson v. Pinkinson, 92 N. J. Eq. 699; 113 Atl. Rep. 143; Pfender v. Pfender, 106 N. J. Eq. 273; 150 Atl. Rep. 832; Rogers v. Rogers, 81 N. J. Eq. 479; 86 Atl. Rep. 935; McVicker v. McVicker, 46 N. J. Eq. 490; 19 Atl. Rep. 249; Starky v. Starky, 21 N. J. Eq. 133.

As was said in Fallon v. Fallon, 111 N. J. Eq. 512; 162 Atl. Rep. 409, the court must in each case look at the effect of the conduct complained of upon the health, mental and physical, of the wife where there is an essential element of extreme cruelty, that its effect upon the mind or body of the aggrieved spouse shall have been substantially deleterious, or that if allowed to continue it reasonably would have become so. Conduct which would imperil the health of a refined and delicate wife might be endured with comparative unconcern by one of a less sensitive nature. Casey v. Casey, 83 N. J. Eq. 603; 93 Atl. Rep. 720.

In my judgment the evidence does not warrant the conclusion that petitioner’s life or health was in danger or her life made one of such discomfort and wretchedness as to incapacitate her physically or mentally to discharge her marital duties because, of her husband’s conduct, or to justify the court in believing that if he is allowed to retain his power over her and she is compelled to remain subject to him, her life or health will be in danger or her life rendered one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife.

That the mistakes and misunderstandings of this husband and wife should have been aired in open court is deplorable. It is clear that, in spite of everything which has occurred, they still have a very deep love and affection for the children. The husband stands ready to receive his wife in his home and to let her assume the responsibilities of wife and mother. I can see no reason why, with reasonable forebearance, the marriage should not be successful. I have the assurance of the children, having spoken to them, that they are hoping that the petitioner will come home and be beside them; that they prefer living in their homestead under the roof and protection of their father and the love and kindness and sympathy of their mother.

The petitioner having failed to substantiate the charges made in the complaint, her action will, therefore, be dismissed.

With respect to the second count, under the act commonly known as the Poor act of 1924, there is a complaint filed to bring the established facts within the statute. The defendant having his home open for the petitioner to return, there could be no justification of a finding that the petitioner may become a public charge, as is required under this count. Rose v. Rose, 10 N. J. Mis. R. 390. There will be a dismissal of this count of the complaint.

I will sign an order in accordance with these findings.


author: Grosman, A. M.

text:
    Bertha Wittlinger, complainant, v. William Wittlinger, defendant.
    [Decided March 30th, 1935.]

      Mr. Carl J. Yagoda, for the complainant.

      Mr. Francis J. Tansey, for the defendant-counter-claimant.

      Mr. Jacob Zimmerman, for the defendant Sophie Yosseler.

      Mr. George Rosen, for the defendant Anna Parro.
   Grosman, A. M.

Complainant sued for separate maintenance. The defendant by counter-claim demanded an accounting. The bill vas dismissed and an accounting decreed. By consent the matter was referred to a master to' state the account. During the course of the examination, the counter-claimant deemed it necessary to bring in as parties defendant Mrs. Sophie Yosseler and Mrs. Anna Parro, sisters of the complainant. This was done by a supplemental counter-claim. Issue was joined thereon by the defendants Yosseler and Parro and the master proceeded to state the account. His report indicates that the complainant Bertha Wittlinger should be required to account for the sum of $6,208.49; that the defendants Anna Parro and Sophie Yosseler should be ordered to turn over to the counter-claimant, William Wittlinger, eighty shares of common stock of the General Motors Corporation, originally in the name of the counter-claimant and purchased by them at sheriff’s sale for the defendant Bertha Wittlinger, and also to account to the counter-claimant, William Wittlinger, for all dividends received by them on account of said stock. To' this, the defendants, Bertha Wittlinger, Sophie Yosseler and Anna Parro, except.

The present proceeding is the finale of considerable litigation in this court between the defendant Bertha Wittlinger and the counter-claimant, William Wittlinger, who were formerly husband and wife. During the course of their married life, the counter-claimant, William Wittlinger, out of his earnings, purchased eighty-eight shares of General Motors Corporation common stock, title to which at all times remained in him. He also acquired five shares of stock of the Uncle Sam Building and Loan Association which stood in the joint names of Bertha Wittlinger and William Wittlinger. In addition thereto, he and his former wife maintained a joint bank account which at their parting amounted to something in excess of $3,000. About the time of the separation the defendant, Bertha Wittlinger, withdrew all of the money in the joint bank account and took possession of the securities above enumerated. She then instituted suit in this court for separate maintenance on behalf of herself and one infant child. Upon the representation that she was destitute, an order for alimony pendente lite and counsel fees was made in her favor. The counter-claimant, William Wittlinger, was wholly unable to comply therewith, not only because his savings and securities had been appropriated by the defendant, but also because he lost his employment. The defendant Bertha Wittlinger then proceeded periodically to obtain writs of execution out of this court, levy upon the securities of the defendant in her possession, cause them to be sold at sheriff’s sale and to be purchased in the name of her two sisters, Anna Farro and Sophie Yosseler for her use. In this manner they acquired title to eighty shares of General Motors Corporation stock and five shares of stock of the Uncle Sam Building and Loan Association. I am satisfied that defendant Bertha Wittlinger supplied her co-defendants, Sophie Yosseler and Anna Farro, with the funds with which these purchases were made and that the money used for this purpose came out of the joint savings of Bertha and William Wittlinger. Counter-claimant’s own money was thus used to deprive him of his securities. I think that the co-defendants, Bertha Wittlinger and her two sisters, Sophie Yosseler and Anna Farro, conspired to strip counter-claimant of his property. It is clearly established that while the legal title to said stock is in the defendants Yosseler and Farro, the equitable title is in the principal defendant, Bertha Wittlinger. The scheme employed by them is perfectly patent.

Upon the trial of the separate maintenance suit, the bill was dismissed. The testimony disclosed that the counter-claimant, William Wittlinger, was wholly innocent of any wrongdoing and that the defendant Bertha Wittlinger was wholly at fault. With the most brazen effrontery she then instituted suit in this court for divorce on the ground of desertion. The defendant-husband counter-claimed in that suit for divorce on the ground of adultery. The wife’s petition was dismissed. She was adjudged guilty of the adultery charged against her and a decree awarded to the husband.

It is significant that the only way in which the defendant Bertha Wittlinger was enabled to work out her scheme to strip the counter-claimant of his securities was by means of the order of this court for alimony pendente lile. It was allowed to her for two reasons: first, because it was presumed that she was innocent, and secondly, because she represented herself to be without means to sustain herself and her child, and to prosecute her suit in this court. Both of these representations were untrue to the knowledge of the complainant and constitute a clear contempt of this court. It is manifest that had it been made known to the vice-chancellor who advised the order for alimony pendente lite, that said defendant, at the time she petitioned therefor, actually had in her possession a fund of upwards of $3,000 in cash, at least half of which belonged to the counter-claimant, no order for alimony would have been made. By fraudulently suppressing this fact, she induced this court to give her an allowance to which she was not entitled, both because she was in funds and because she was the wrongdoer.

The master included in his findings an allowance for alimony down to the date of the final decree in the separate maintenance suit, totaling $1,260. It would be unconscionable to permit the defendant Bertha Wittlinger to collect any moneys under an order of this court which she fraudulently obtained. Though no exception has been taken by the counter-claimant to this item, it will be disallowed on the court’s own motion. Alimony was allowed at the Tate of $15 per week for the support and maintenance of the defendant Bertha Wittlinger and her son. Upon the dismissal of the bill of complaint, the counter-claimant was directed to pay the sum of $5 per week for the maintenance of his child. The defendant Bertha Wittlinger will be charged with the sum of $10 per week for the period during which the order for alimony pendente Kte remained effective. She may be credited with the sum of $5 per week for the maintenance of her child.

Any other disposition of this matter would result in permitting the complainant to profit by her own wrong. Such a result cannot be countenanced.

The exceptions to the master’s report are overruled and the matter is re-referred to Howard Isherwood, Esq., the master originally designated, to restate the account in accordance with my views.


author: Pebskie, J.

text:
    EDWARD F. A. ROBBINS, PROSECUTOR, v. TOWN COUNCIL OF THE TOWN OF BLOOMFIELD, RESPONDENT.
    Argued January 16, 1935
    Decided April 15, 1935.
    Before Justices Heheb. and Peeskie.
    For the prosecutor, Sim,on L. Fisch.

    For the respondent, Edward G. Pettit.

   The opinion of the court was delivered by

Pebskie, J.

Prosecutor seeks to set aside his dismissal as a police officer of the town of Bloomfield. He was adjudged guilty of having violated rules 3, 9, 10, 17 and 22 of section 5 of the police ordinance of said town. These rules are as follows: (3) willful disobedience of orders; (9) leaving post or assignment without just cause; (10) not properly patrolling post; (17) conduct unbecoming an officer and gentleman; (22) conduct subversive of good order and discipline. The facts upon which prosecutor was adjudged guilty are that on Saturday morning, August 18th, 1934, at two a. ir. (he) did without just cause, leave the post to which he was assigned at Watsessing Center, Bloomfield, and went to Phil Place and became engaged in an argument with one William Bogers, a fellow police officer, and did strike and assault the said Bogers and his own wife.

Prosecutor’s defense was based on a plea of confession and avoidance. He at all times admitted that he left his post for about one and one-half hours, and the post (Watsessing Center) it is stated, and not contradicted, is centrally located in the populous section of the town. Within the limits of the post is a railroad station, a bank and many stores, factories and homes. Prosecutor immediately thereafter reported his absence to the sergeant and later in the morning explained it to the chief of police; he also made a written explanation thereof. It appears that prosecutor was living separate and apart from his wife, though he was permitting her to live in his home and was giving her $100 a month out of his monthly salary of $160 towards her support and that of their two children, of the ages of ten and twelve years, respectively. He apparently was suspicious of her conduct. On the night in question he was informed that his wife was in the car with Rogers, his fellow officer. Whereupon, without permission or notice to his superiors, he set out to find them. He did so and engaged in the argument and altercations, which he admitted, and of which he was convicted.

Before proceeding with the discussion of the points raised by the prosecutor, we desire to point out that the record of this case does not contain a judgment, which should set out a statement of the evidence upon which it is based. Sawicki v. Keron, 79 N. J. L. 382; 75 Atl. Rep. 477; Marter v. Repp, 80 N. J. L. 530; 77 Atl. Rep. 1030; affirmed, 82 N. J. L. 531; 81 Atl. Rep. 1134; Mullane v. South Amboy, 86 N. J. L. 173; 90 Atl. Rep. 1030; O'Driscoll v. Scott, 12 N. J. Mis. R. 516; 172 Atl. Rep. 797; affirmed, 114 N. J. L. 265; 176 Atl. Rep. 170; Freudenrich v. Mayor, &c., Fairview, 114 N. J. L. 290; 176 Atl. Rep. 162. And there is doubt whether the transcript of the testimony is properly before us, as authorized by chapter 208. Pamph. L. 1913, p. 419. Kerr v. Atlantic City, 108 N. J. L. 219; 157 Atl. Rep. 559. But since these points have not been raised and since the case has been argued on the alleged merits we shall dispose of it on the basis as though it were properly before us. Section 11, Certiorari act. 1 Comp. Stat. (1709-1910), p. 405.

It is urged that under the provisions of the police ordinance of the respondent, the committee on police should have preferred the charges and not the chief of police. This is clearly without merit. Section 5, article 16 (Police— Pamph. L. 1928, p. 418), provides, and it is controlling, that the charge or charges shall be “signed by the person or persons making such charge or charges.” A complaint by a chief of police is sufficient. Parks v. Common Council of Rahway, 110 N. J. L. 366; 165 Atl. Rep. 635.

It is next contended that the proofs did not justify the conclusion reached that the prosecutor left his post without just cause. This was, of coures, a purely factual question. The obvious reason for the desertion of the post by the prosecutor was to find incriminating evidence against his wife. But be that as it may, and assuming that he left his post because of a desire to protect his wife, there was available to him police communication with his superiors to either obtain permission to leave or at least to advise them that he was leaving his post unprotected. This he did not do. He simply disregarded his duty in the premises and left the lives and property of those on his post without any police protection. “And it cannot be overlooked in these circumstances with our ready and convenient means of communication by telephone ox otherwise, such a requirement [notification of inability to report] was at least incumbent upon the officer if he had a proper regard for the necessities of the situation and a proper conception of his duty.” Hoar v. Preiskel 3 N. J. Mis. R. 494; 128 Atl. Rep. 857.

Does the evidence in the instant case afford a rational basis for the judgment reached heroin against the prosecutor ? Herbert v. Atlantic City, 87 N. J. L. 98; 93 Atl. Rep. 80; Reilly v. Jersey City, 64 N. J. L. 508; 45 Atl. Rep. 778; Kerr v. Atlantic City, supra. We think that it does. The fact that this was the prosecutor’s first offense and that he bore a good reputation were matters properly addressed to the body charged with the (/wash-judicial duty of rendering the judgment, particularly as it related to the degree of punishment, but it has no place here.

Writ is dismissed, with costs.


author: Oliphant, S. C. C.

text:
    HARRY B. SNEDIKER, PLAINTIFF, v. PERCY T. POTTS ET AL., DEFENDANTS.
    Decided February 10, 1935.
    For the motion, Josephson Josephson.

    Contra, James J. McGoogan.

   Oliphant, S. C. C.

This is a motion by the defendant • Mary Ellen Reynolds to dismiss the suit on the ground that the plaintiff executed and delivered to' some of the defendants a covenant not to sue after they had been served and filed their answers.

The suit originally was commenced on or about the 11th day of January, 1934, by the plaintiff against all of the defendants. The allegations were that John E. Reynolds, who died on July 25th, 1933, had converted to his own use, a portion of the estate of his former wife, to which the plaintiff, a stepson of the said John E. Reynolds, was entitled. The said John E. Reynolds died testate and by his will devised to the defendant Mary E. Reynolds, his wife, the lot of land and house wherein they resided at the time of his death.

During the testator’s lifetime he had transferred to her certain shares of stock and a lot of land, and in said will it is declared that the aforesaid devise and the above transfer were made in lieu of dower that she may have in the estate, which she has accepted.

In said will testator also devised to the plaintiff, Harry B. Snediker, certain lots of land located in Miami Beach, Florida. All of the rest and remainder of the estate, testator devised to his son, John E. Reynolds, Jr.

On or about the 18th day of April, 1934, and after the defendants had answered the complaint, plaintiff executed and delivered to the two' estates and to John E. Reynolds, Jr., a covenant not to sue, wherein he agrees not to institute or prosecute any suit or proceeding, nor to prosecute any further the suit now pending, nor to make any claim or demand whatsoever against the estate or against the other heirs. On May 28th, 1934, a rule of discontinuance was entered as between the plaintiff against the defendants Percy T. Potts, executor of John E. Reynolds, deceased, Percy T. Potts, administrator with the will annexed of Alice M. Reynolds, deceased, and John E. Reynolds, Jr.

Defendant Mary Ellen Reynolds contends that inasmuch as all of the defendants are necessary parties to the action, the suit must be dismissed by reason of the covenant not to sue and the discontinuance. Plaintiff says that all parties necessary were made parties and that any defendant may buy his peace and avoid a law suit.

The action is brought under the Heirs and Devisees act. Comp. Stat., p. 2739.

There is no question but that all of the defendants are necessary parties. St. Mary’s Church v. Wallace, 10 N. J. L. 311; McCarthy v. Mullen, 82 Id. 379; 82 Atl. Rep. 51, and Reinhardt v. Calhoun, 9 N. J. Mis. R. 914; 156 Atl. Rep. 12.

After they are made parties, as here, the court has complete control over them and if necessary to the proper ends of justice they must remain parties to final judgment. It is necessary that they remain so in the instant case to the end that the plaintiff may reach all lands liable for the debt and also to insure the right of contribution of the various defendants against each other.

The covenant not to sue is personal as between the parties thereto. The defendant who makes this motion, who was not a party to it cannot claim a privilege or right under it.

The discontinuance was not on order of the court. It was a stipulation between counsel. Mr. Justice Perskie, speaking for the Court of Errors and Appeals, in the case of Martin v. Lehigh Valley Railroad Co., 114 N. J. L. 243; 176 Atl. Rep. 665, said: “The court has control of the cause of action, the pleadings and the stipulation. If a judgment may be opened and vacated, pleadings amended and withdrawn * * * all, of course, on good and legal cause shown, it would appear to follow that a discontinuance filed, as in the instant case, may also on good and legal cause shown, be withdrawn. There is nothing inviolable about an order of discontinuance. Reduced to its simplest terms it is nothing more or less than an agreement between respective counsel without the express sanction of the court.”

Tor the foregoing reasons the motion to dismiss the complaint will be denied but the action will be stayed to give to the defendant Mary Ellen Reynolds an opportunity to move to strike the discontinuance from the files to the end that all parties may remain under the control of the court to final judgment.


author: Olipíiant, C. C. J.

text:
    HENRY C. HESS AND LUCY A. HESS, PLAINTIFFS, v. NEWTON A. K. BUGBEE, JAMES T. BROWN, SUBSTITUTED ADMINISTRATOR WITH THE WILL OF DANIEL A. DUGAN, DECEASED, ANNEXED, MARY EGAN, TRENTON BANKING COMPANY AND CHARLES J. TRIER, EXECUTORS AND TRUSTEES OF THE ESTATE OF MARY L. DUGAN, DECEASED, AND MATILDA D. O’NEILL, DEFENDANTS.
    Decided April 17, 1935.

      For the plaintiffs, Henry M. Hartmann.

    For the defendants, Aaron V. Dawes.

   Olipíiant, C. C. J.

This is an action on a bond by the plaintiffs against Newton A. K. Bugbee, James T. Brown, substituted administrator, with the will annexed of Daniel A. Dugan, deceased; Mary Egan, a devisee of real estate under the will of Daniel A. Dugan; Trenton Banking Company and Charles J. Trier, executors and trustees of the estate of Mary L. Dugan, who was the wife of Daniel A. Dugan, and a devisee of real estate under his will, and Matilda D. O’Neill, to whom Mary L. Dugan devised the real estate devised to her under the will of Daniel A. Dugan, together with her executors and trustees hereinbefore mentioned.

The bond was made by Bugbee and Dugan on the second day of July, 1925, to the plaintiffs in the penal sum of $64,000 to secure the sum of $32,000. To secure the bond, they executed a mortgage of the same date to the plaintiffs on property situated in Trenton of which the said Bugbee and Dugan were seized in fee. The due date of the mortgage was July 2d, 1930. On May 14th, 1929, Daniel A. Dugan died testate. By his last will and testament, Mary L. Dugan, his wife, was appointed executrix thereof. On December 21st, 1929, the surrogate of the county of Mercer entered an order limiting the time within which creditors of the decedent Daniel A. Dugan should present their claims and demands to the executor. On October 1st, 1930, the said Mary L. Dugan died testate and James T. Brown was appointed substitute administrator of the estate of Daniel A. Dugan, deceased, with the will annexed.

The mortgage was foreclosed and the premises were sold by the sheriff of Mercer county on June 21st, 1933. The sale resulted in a deficiency. It is admitted that after proper allowances, that deficiency is in the sum of $26,604.05 with interest from July 5th, 1933. The proper notices were filed in the Mercer county clerk’s office as required by the Mortgage act.

The ease was tried by the court sitting without a jury.

The material allegations of the complaint were proved.

At the time of trial judgment was given in favor of the plaintiffs against Bugbee so that he is eliminated from these considerations.

The defenses relied upon at the time of the trial and argued, in simple verbage are:

1. That the fair market value of the mortgaged premises at the time of the foreclosure sale was more than the deficiency claimed in this suit.

2. That no claim was presented by the plaintiff to the executor of the estate of Daniel A. Dugan within the time limited by the order of the surrogate barring creditors.

3. That there was no' devise of real estate under the will of Mary L. Dugan; that necessary heirs-at-law, devisees and devisees of heirs are not joined in the suit and therefore, there is a non-joinder of necessary parties.

4. That all the parties who are defendants here should have been made defendants in the foreclosure suit mentioned in the complaint.

1. This defense was stricken out at the time of the trial of the cause.

2. The question here presented is—does the failure to file a claim with the executor of an estate on a bond not due and payable until after the time fixed in the order of the surrogate for the presentation of claims in the order barring creditors, prevent a recovery on said bond in a suit against the executor? The sixty-ninth section of the Orphans Court act provides “debts and demands liquidated, not due and payable, but which aTe payable in the future, may be presented for allowance; a reasonable rebate of interest being made when interest is not accruing on the same; and if any such debt or demand be disputed, and action be brought therefor, the plaintiff shall not fail in such action on account of such debt and demand being payable in the future, if the same be otherwise a legal debt or demand.” The bond in question was for a liquidated amount, not due and payable at the time limited as set forth in the order barring creditors. It was not a contingent but an absolute liability of the plaintiffs. The bond could have been sued upon without first foreclosing the mortgage. The cases to which the court has been referred by counsel for the plaintiffs are not in point. They relate to cases where a contingent liability existed. Where the courts use the words “contingent liability” they refer to the contingency of the obligation of payment, not the contingency of the amount of the claim or payment. The fact that a claim such as here existed must be presented to the executor is supported by numerous cases in this state, among which are Bay Estate Corp. v. Steelman, Admr., 90 N. J. L. 184; 100 Atl. Rep. 209; Smith v. Crater, 43 N. J. Eq. 636; 12 Atl. Rep. 530; Weatherly v. Sparks, 63 N. J. L. 445; 43 Atl. Rep. 683; Voorhees’ Case, 57 N. J. Eq. 291; 42 Atl. Rep. 567; Smith v. Wilson, 79 N. J. Eq. 310; 81 Atl. Rep. 851; Cranmer v. Cole, 11 N. J. Mis. R. 578; 167 Atl. Rep. 744; Hackensack Trust Co. v. Van Den Berg, 92 N. J. L. 412; 105 Atl. Rep. 719.

Unless claims such as the one here are presented to a personal representative he cannot know what may be outstanding against an estate of a decedent and may not know how to administer it. Eeason and the orderly procedure of human affairs necessitate the presentation of all claims except where there is a contingent liability. Vice-Chancellor Stevenson, in Smith v. Wilson, supra, went so far as to say, “I am unable to perceive any reason why in view of the object of the statute in question all parties holding claims against the estate which may in the future be put in judgment against the executor or administrator, however contingent they may be, should not be deemed creditors within the meaning of this statute. This view is aided by the fact that the parties termed ‘creditors’ or holders of obligations of some sort against the estate, are not merely called upon to bring in their ‘debts’ but their ‘demands’ and their ‘claims.’ ” The Court of Errors and Appeals, in Hackensack Trust Co. v. Van Den Berg, heretofore referred to said, “we think this correctly states the law.”

3. If the will of Mary L. Dugan devises real estate all the necessary parties are joined in this suit. Conversely, if that will passes title only to personal property and Mary L. Dngan died intestate as to the real estate owned by her at her death, all necessary parties are not joined and the suit would fail. St. Mary v. Wallace et al., 10 N. J. L. 311; Reinhardt v. Calhoun, 9 N. J. Mis. R. 914; 156 Atl. Rep. 12; affirmed, 162 Atl. Rep. 909.

After several pecuniary legacies the residuary clause of the will reads as follows:

“If the residue of my estate is less than five thousand dollars then I wish it given to my sister, Matilda D. O’Neill. If over five thousand, I wish my executors and trustees to have it put into1 a trust fund and the interest therefrom paid semiannually to my sister Matilda D. O’Neill during her natural life. At the death of my sister Matilda D. O’Neill I wish the thirty-five thousand dollar balance from the first trust fund I made for her, and if there is a second trust fund, then T wish the second trust fund together with the balance from the first—be given to the Home for the Aged—known as Morris Hall, Lawrenceville, N. J., for a wing to be constructed and to be known as the Daniel A. Dugan Memorial.”

A will ought not to be construed to produce intestacy. The natural and reasonable presumption is, that when a will is executed the testator designs to dispose of his entire estate, and does not intend to die intestate, as to any of his property. Leigh v. Savidge’s Ex’rs, 14 N. J. Eq. 124; Bruce v. Bruce, 90 N. J. Eq. 573; 107 Atl. Rep. 434; In re Rogers Estate, 91 N. J. Eq. 294; 109 Atl. Rep. 16; Bankers Trust Co. v. Greims et al., 115 N. J. Eq. 102; 169 Atl. Rep. 655; Kanouse v. Central Railroad Company of New Jersey, 97 N. J. L. 185; 116 Atl. Rep. 488; 40 Cyc. 1409, and cases cited.

The only cases given me by counsel for the defendants are Kearney v. Kearney et al., 17 N. J. Eq. 59, and Miller v. Worrall, 62 N. J. Eq. 776; 48 Atl. Rep. 586, but neither is in point. In the will construed in the latter case, the testator devised “all the rest and residue of my estate personal and mixed." There was a qualification limiting the given estate to personal and mixed property. In the instant case, there was a clear intention to dispose of all the estate in the light of the foregoing decisions o'f our own and other jurisdictions. The will devising real estate, the necessary parties are joined in this suit.

4. In this defense defendants seek to invoke the provisions of chapter 82, laws of 1933, which provides “that no action shall be instituted against any party answerable on the bond unless such party is joined in the proceedings to foreclose the said mortgage.”

This defense is without merit for two reasons, first, that all the parties named in this suit were joined in the proceedings to foreclose the mortgage as shown by the final decree of the Court of Chancery, and secondty, the act relied upon became effective subsequent to' the date of filing the bill of foreclosure.

In view of the foregoing conclusions, the judgment of the court is therefore, that the plaintiffs are entitled to a verdict against Mary Egan; Trenton Banking Company and Charles J. Trier, executors and trustees of the estate of Mary L. Dugan, deceased; and Matilda D. O’Neill, in the sum of $30,525.16, said sum to be made from the lands, tenements and hereditaments received by the defendants from Daniel A. Dugan, deceased; and that a verdict of no1 cause for action be entered in favor of James T. Brown, substituted administrator with the will annexed of Daniel A. Dugan, deceased, against the plaintiffs.