author: Ackekson, S. C. C.

text:
    ALBERT SKAE, PLAINTIFF, v. COTEX CORPORATION, A CORPORATION OF NEW JERSEY, AND ILDON BLACKBURN, DEFENDANTS.
    Decided July 15, 1932.
    For the plaintiff, Meyer G. Ellenstein.

    For the defendants', Gongleton, Stallman & Hoover.

   Ackekson, S. C. C.

The complaint herein is for malicious prosecution. It charges that the defendant, on or about September 17th, 1929, maliciously and without probable cause, made a criminal complaint against the plaintiff "charging him with violation of chapter 11J) of the public laws of New Jersey of the year 1922, which provides as followsThen is set forth in full what purports to be a copy of the provisions of the statute thus referred to, but which in fact is a copy of a wholly irrelevant act dealing with fraudulent representations in advertising, found in Pamph. L. 1913, ch. 318, p. 649, whereas Pamph. L. 1922, ch. 145, deals only with the corrupt influencing of agents, employes or servants.

In this situation the plaintiff moves for leave to file an amended complaint expunging the incorrect quotation of the provisions of Pamph. L. 1922, ch. 145, and substituting therefor the correct quotation thereof.

The defendant resists the motion on the ground that the proposed amendment would be substituting an entirely new cause of action after the statute of limitations had run against it.

Assuming, without deciding, that the two-year period of limitation would apply to such an action as this, and that such period has run, neverthelss, it is apparent that the proposed amendment does not amount to the allegation of a new and distinct cause of action. It is settled in this state that amendments which merely expand or amplify what has already been alleged in support of the action, relate back to the commencement of the action, and are not affected by the intervening lapse of time. Swank v. Pennsylvania Railroad, 94 N. J. L. 546, 553; 111 Atl. Rep. 4. The question in all cases seems to be whether a new cause of action is proposed or the same cause of action stated in a different manner so as to permit the introduction of the available proofs. O’Shaughnessy v. Bayonne News Co., 9 N. J. Mis. R. 145; 154 Atl. Rep. 13.

It is to be noted that the original complaint alleges that the criminal complaint charged plaintiff with having violated “chapter 145 of the public laws of New Jersey of the year 1922.” That specified the criminal charge laid against the plaintiff by the defendant and that which follows is merely an expansion or amplification of it, by the pleader volunteering the information as to what Pamph. L. 1922, ch. 145, contains. If plaintiff had asked to amend by merely striking out the quoted provisions of said statute, no objection could have been raised, because enough still remained by reference to the chapter of the laws and the year of passage, to identify the criminal charge. Can it be said, therefore, that any amendment, which merely corrects a mistake in quoting the provisions of the statute, results in the statement of a new and different cause of action? I think not.

The motion to amend the complaint will, therefore, be allowed.


source: Caselaw Access Project

author: Mathews, J.

license: Public Domain

text:
    First Judicial District Court of Burlington County.
    MARGARET S. TROUT, PLAINTIFF, v. A. F. BRIGHT, DEFENDANT.
    For the plaintiff, Isadore H. Hermann.

    For the defendant, Norman W. Harlcer.

   Mathews, J.

This was an action in negligence brought' by the plaintiff, Margaret S. Trout, to recover from the defendant, A. F. Bright, damages as the result of the injuries sustained by her on July 11th, 1931, in the city of Philadelphia, Pennsylvania. There was evidence to show that the plaintiff stepped off the curb of Broad street some distance from the corner of Broad and Wallace streets, and directly in back of the defendant’s car, in which at the time were the defendant and his wife. It seems undisputed that at the time the plaintiff stepped off the curb the defendant’s ear was at a -standstill. . However, if this was disputed, I think the evidence clearly indicates that such was the case, and I so find. The plaintiff testified that she did not notice whether anyone was in the car and she further says that the- engine of the car was not running. The entire evidence in the case, however, indicates that the engine was running at the time, but that the plaintiff did not hear it.

The plaintiff testifies that she stepped off the curb at this distance from the corner in order to see whether there was a policeman at the corner of Broad and Wallace, at which place she intended to cross Broad street; that she passed the plaintiff’s car and started back when she was hit. Whether this is true or whether, as a matter of fact, she was starting to cross Broad street at this point I do not think important to the decision of the case, except as its effect on the credibility of plaintiff’s testimony.

The defendant testified that he started to back his car, looking out the rear window thereof; that he did not see the plaintiff at all until her head appeared at that window and that he immediately stopped his car. It is quite evident that the defendant’s vision was limited by the back window of the car through which he was looking. It is also apparent that he could not have seen the plaintiff at or near the rear end of the car unless she was in front of this window, and hence he put the car in motion and backed without making sure there was no one in the rear except by looking through the window mentioned. I had no hesitancy at the trial in holding that the defendant was guilty of negligence in so doing under the circumstances. There appears to have been no horn blown or warning given of his intention to back.

The question which gave me some concern was whether or not the plaintiff was guilty of contributory negligence under the circumstances.

I take it to be fundamental that a pedestrian has equal rights upon the highway with a vehicle, except as modified by statute. While present traffic conditions on highways must give rise to a higher degree of care on the part of a pedestrian who crosses or enters a highway, particularly at some point admittedly not the regular crossing, nevertheless this does not affect the fundamental right, but should be taken into consideration upon the question of due care.

The only proof of the law of Pennsylvania on this subject is1 that of section 1013 (c) of the Pennsylvania Traffic act ■of 1929, which reads: “Every pedestrian crossing a highway, within a business or residence district, at any point other than a cross-walk, shall yield the right of way to vehicles upon the highway.”

The question of plaintiff’s contributory negligence under circumstances such as these seems to be a novel one in this state, and of course the law of this state, with the one exception above mentioned, governs.

Defendant has cited the case of Sheldon v. James, 175 Cal. 474; and the plaintiff the case of Enstrom v. Neumoegen, 126 N. Y. Supp. 660; as their main authorities respectively on this proposition.

It seems to me that the facts in the latter case are nearer those in the case at bar. The recital of the facts by the court in the Sheldon v. James ease, contains these words:

“Plaintiff, hurrying to his office and neither seeing nor hearing nor knowing of the presence of the backing automobile, was struck by the projecting hood and thrown down, sustaining the injuries complained of.”

We are not concerned now with defendant’s negligence. That I have found as a fact.

It will be noticed from the above recital that the plaintiff in the cited case never observed the defendant’s automobile at all, whether it was moving or standing or what its condition was.

In the ease of Enstrom v. Heumoegen, while the plaintiff had also crossed the street before being struck, the court says:

“He [plaintiff] was not called upon to assume that the machine which was standing still when he started to cross the avenue in rear of it would be moved backward without warning of some kind,”

In that case it certainly seems reasonable to suppose, even without a full recital of the facts, that there was someone in the machine and that the engine was running, or was started at a time when plaintiff could have fully observed it. I do not believe that the fact that the defendant and his wife were in the car with the engine running makes any difference. Even with these facts known to the plaintiff, without further indications to show the intention of the defendant, it seems to me she still had a right to assume that the. defendant was not-suddenly to back without warning and without a careful effort to ascertain whether there was anybody or anything in the rear of the car. It seems to me further that the Pennsylvania statute can have no application to a situation where the vehicle is standing still at the curb. The vehicle may have the right of way under the statute but this gives it no license to run forward, backward or sidewise (if it could) all around the highway without warning and without thorough observation of the driver as to pedestrians lawfully upon the highway, even though under restriction, from a standing position at the curb-

Hence I feel that under the circumstances the plaintiff was not guilty of negligence contributing to the accident and is entitled to recover.

She testified that upon being struck by defendant’s car .she fell and injured (in fact broke) her wrist. She was taken to the Hahnemann Hospital and the wrist set. She made about fourteen trips to the hospital, and expended $22.50 as a direct result of the injuries. She testified that she was •employed at the time of the accident, making $16 per week and that she lost eighteen weeks as a result of the injuries, making a total monetary loss of $310.50. I think she is entitled to $150 for the pain and suffering resulting from the accident.

A verdict will therefore be rendered in favor of the plaintiff and against the defendant in the sum of $460.50 and costs, and judgment will be entered thereon accordingly.


author: Bekey., Y. C.

text:
    The Township of Long Beach, complainant, v. Daniel B. Frazier Company, defendant.
    Suit No. 2—Docket 86/302.
    Suit No. 3—Docket 86/303.
    Suit No. 4—Docket 86/306.
    Suit No. 5—Docket 87/661.
    [Decided July 8th, 1932.]

      Mr. Howard Ewart, for the complainant.

      Mr. Joseph H. Carr, for the defendant.
   Bekey., Y. C.

(Orally.)

Let it be noted on the record that both sides rest this morning without the taking of any further testimony and without the submission of any further evidence.

I am going to dispose of this interest question now, before the argument proceeds any further, unless what you have to say is related in some way to the interest.

This controversy now resolves itself into a question of what rate of interest the municipality is entitled to collect upon a redemption of the properties involved from the tax sales which are here the subject of foreclosure. It is conceded that there is now no issue with respect to the rate of interest on the amount required to redeem from the various tax sales, except as to the taxes subsequent to that for which the property was sold. The controversy is, therefore, with reference to what rate of interest is chargeable on subsequent municipal taxes or liens. It is conceded that without statutory authority no interest whatever is collectible—this on the authority of City of Camden v. Allen, 26 N. J. Law 398; Town of Belvidere v. Warren Railroad Co., 34 N. J. Law 193; Stale, ex rel. Brennert v. Farrier, 47 N. J. Law 75; Lehigh Valley, &c., Railroad Co. v. City Collector of Jersey City, 93 N. J. Law 284; 108 Atl. Rep. 224, and Baker v. City of East Orange, 95 N. J. Law 365; 111 Atl. Rep. 681.

Section 603 of the General Tax act of 1918 provides that the governing body of each municipality shall have power to fix, by a resolution, the rate of interest to be charged for the non-payment of taxes or assessments, on or before the date when the taxes become delinquent; which rate for nonpayment shall not exceed the rate of nine per centum per annum or be less than seven per centum per annum.

It is conceded that the complainant municipality never did adopt any resolution fixing the rate of interest which should be charged upon delinquent taxes. It is contended on behalf of the municipality, notwithstanding that fact, that interest is collectible on such taxes at a rate of not less than seven per centum; while, on the other hand, the defendant contends that since no such resolution was passed, and since the tax is not a debt within the ordinary sense of the meaning of that term, no interest whatever is chargeable.

I think that the whole scheme of the Tax act, however, contemplates that interest shall be paid by property owners upon delinquent taxes; but it is not necessary here to determine that precise question, because of the provision of section 25 of the tax sale revision of 1918 (P. L. 1918 p. 888), to which I am referred by counsel for the complainant municipalitjr. That section provides that the officer making a tax sale shall strike off and sell to the municipality in fee for redemption at eight per centum, any parcel of real property for which there shall be no other purchaser, and the municipality shall have the same remedies and rights as other purchasers, including the right to bar or foreclose the right of redemption. This section of the tax sale revision, which revision is independent of the General Tax act, fixes, as I think, definitely, the amount of interest chargeable against property owners upon redemption from tax sales; not only as to the sum mentioned in the certificate of tax sales, but also as applied to subsequent taxes or municipal liens which are required to be paid upon redemption.

Section 42 of the tax sale revision, as it existed at the time of the tax sales here involved, provided that in ease the certificate of tax sale is held by the municpality, the amount required for redemption shall include all subsequent municipal liens with interest and costs. Counsel for the defendant contends that this section should be read in connection with the following section 43, providing for redemption in case the certificate of sale is not held by the municipality. Section 43 provides that in such case the amount required for redemption shall include all sums for subsequent municipal liens and interest and costs thereon actually paid by the holder of the tax title, or his predecessor therein, together with interest on the amount so paid at the rate chargeable by the municipality. The contention is, that inasmuch as no rate applicable to delinquent taxes has been fixed by a resolution of the municipality, then no interest whatever is collectible. This position, I think, is untenable, because not only is it the scheme of the General Tax act, but also that of the Tax Sale Bevision act, apparently, that interest shall be collected by the municipality, not only prior to the sale for delinquent taxes, but also upon redemption from such tax sale; and as applied to this controversy, I consider that section 25 of the tax sale revision is controlling and that sections 42 and 43 are entirely separate and distinct. The interest referred to in section 42, in my judgment, refers to the interest mentioned in section 25, which I think is alike applicable to the delinquent taxes for which the sale was made and the subsequent municipal liens which are required to be paid upon redemption.

The views which I have expressed on this point are confirmed by the construction placed upon section 603 of the General Tax act by Mr. Justice Black, in his book on Taxation in Hew Jersey, 3d edition, at page 514, where he construes that section of the act as mandatory for the collection of interest upon delinquent taxes at no less than seven per cent, wherever the governing body of the taxing district has not fixed a higher rate. Mr. Justice Black was entirely familiar with the Tax act now under consideration, and the construction placed upon it by the courts of this state, and he wrote the opinion in Baker v. City of East Orange, to which reference has been made.

His text assumes, I think, that interest at seven per cent, is collectible upon delinquent taxes without a resolution of the municipality. But nothing is to be gleaned from his recital of the pertinent portions of the text of the Tax Sale Bevision act which would aid in the construction thereof.

The further question raised by counsel for the defendant respects the subsequent municipal liens that may be required to be paid by the landowner upon redemption. He contends that only those subsequent taxes which had become liens under the statute at the time of the filing of the bill are required to be paid upon redemption; while, on the other hand, counsel for the complainant insists that all taxes or assessments which have become a lien up to the date of the decree are required to be paid. In my judgment the decree should speak as of the date of its entry, and should require payment of all taxes and assessments which have become a lien at that time and which have been the subject of proof in the cause.

During final hearing objection was made to the admission of testimony respecting the location and boundary lines of the property described in the certificate of tax sale on the ground that it was an attempt at a variation of a written instrument under seal—of the certificate itself. That objection is now renewed in opposing the entry of a decree. The testimony was admitted, and I think properly so, because it was offered, not for the purpose of varying the terms of the certificate of tax sale, but merely to identify the lands sold with those described in the bill of complaint.

Application is now made by counsel for the complainant for an allowance of counsel fees in each of the five foreclosure suits, and he asks for a total fee of $5,000, to be divided among the several suits as follows: Suit No. 1, docket 86, page 301, $250; suit No. 2, docket 86, page 302, $1,500; suit No. 3, docket 86, page 303, $150; suit No. 4, docket 86, page 306, $100; suit No. 5, docket 87, page 661, $3,000.

Section 49 of the tax sale revision as amended in 1928 (P. L. 1928 p. 382), provides that:

“After bill in equity had been filed, redemption shall be made in said cause only and the court shall, upon application at any time after bill filed, allow costs, which shall include reasonable fees for an examination of the title to the lands described in the bill filed, disbursements incurred by the purchaser and his counsel and counsel fees commensurate with the services rendered, in addition to the other fees and expenses in this act provided.”

I think here is expressed a clear legislative intent that all expenses incident to the foreclosure of a tax title shall be paid by the person redeeming from the tax sale, and I think it is clear that the intent is also, especially in cases of municipalities, that the entire costs of such foreclosure, including counsel fees, shall be paid by the person redeeming, and that the whole procedure shall be without expense, so far as it is possible, to the taxpayers of the municipality complainant. Any other construction placed upon 'the act would, of course, unequally distribute the burdens of taxation, and innocent taxpayers who have paid their taxes promptly would be saddled with the costs and expenses incident to the delinquencies of their neighbors. The purpose of the statutory provision which I have recited, it seems to me, was to avoid that very consequence. Therefore, I have no hesitancy in saying that counsel fees are not only warranted by the statute, but should be allowed in such sum as will be compensatory for the services rendered, so that the municipality will not be called upon to pay any additional fees.

Five suits to foreclose are involved in this application, and ordinarily it would probably be appropriate to distribute the total counsel fee allowed equally among the five suits, except for the fact that the amount required for redemption in the several suits is quite disproportionate. Counsel for complainant has handed me his computation of the amounts required for redemption, exclusive of costs and counsel fees, in each case.

The amount required in suit number 1 is $2,376.34; in suit number 2, $17,428.43; in suit number 3, $1,083.90; in suit number 4, $940.25, and in suit number 5, $45,823.36, making a total of $67,652.28 in the five suits.

It is true that four of these suits were in most respects prosecuted as one action, although there were four separate bills filed and four separate sets of pleadings. The fifth suit is the subject of a bill filed at a later period, but all five suits were heard at the same time and on the same days, although proof was required and submitted in each of the cases separately.

Counsel for complainant has recited in detail the services which he has rendered in these several actions, such recital being supported by a lengthy affidavit, and, considering the importance of the proceedings, not only to the complainant, but also to the defendant, and considering the fact that no obstacle which could be interposed to the successful completion of these several proceedings has been omitted by counsel for the defendant, and in view of the total amount of the taxes which is the subject of these several proceedings, I am constrained to say that a fee of $5,000 is not unreasonable under the circumstances. If it were appropriate to make this allowance in one lump sum, I would have no hesitancy in doing so, but in view of the amounts required for redemption under the several decrees to be entered, and the fact that four of the tracts of land involved are contiguous, and all five tracts are owned, subject to the tax sale;, by the one defendant which, only, has the right to redeem, it seems to me that the distribution of the total fees as suggested by counsel for the complainant, which distribution is practically proportionate to the amounts severally involved, is entirely equitable and appropriate. Those fees will be distributed accordingly, and will be included in the taxed costs to be paid by the defendant upon redemption in each particular case.


author: Ackerson, S. 0. C.

text:
    CATHERINE MERRITY, GENERAL ADMINISTRATRIX OF THE ESTATE OF ELIZABETH SWAVELY, DECEASED, ETC., PLAINTIFFS, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, DEFENDANT. CATHERINE MERRITY, GENERAL ADMINISTRATRIX OF THE ESTATE OF ELIZABETH SWAVELY, DECEASED, ETC., PLAINTIFFS, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, DEFENDANT.
    Decided July 23, 1932.
    For the plaintiffs, Collins & Corbin.

    For the defendant, Perlcins & Drewen.

   Ackerson, S. 0. C.

Two actions with the same title have 'been instituted in this court to recover the amounts of two ■policies of life insurance issued by the defendant company upon the “joint life of * * * Howard M. Swavely and Elizabeth Sw'avely, husband and wife, * * * payable to the survivor of Howard M. Swavely and Elizabeth Swavely, 'beneficiary.” The policies are in the amounts of $2,000 and ■$3,000 respectively, and with this exception are identical in ■terms, each being made “payable immediately upon receipt ■of due proof of the first death among the insured,” and being uneontestable after one year, except for non-payment of premium and each containing a clause reading “the right to •change the beneficiary has not been reserved by the insured.”

The complaints in these actions are practically identical and allege the issuance of the aforesaid policies by the defendant on April 10th, 1928, and June 22d, 1928, respectively, and copies thereof are attached to and made a part of the complaints. It is further alleged that said Elizabeth Swavely died on November 7th, 1930, as the result of burns intentionally inflicted by said Howard M. Swavely, who, because thereof, was subsequently convicted of murder in the first degree with a recommendation for life imprisonment. It is also alleged that on September 11th, 1912, said Howard M. Swavely was legally married to one Minnie Campbell Swavely, who is still alive and the lawful wife of said Howard M. Swavely, and that in July, 1926, he married the said Elizabeth Swavely, who was unaware of the previous marriage, and that they lived together as husband and wife until the murder of said Elizabeth Swavely, who left her surviving as her sole next of kin, the plaintiffs Catherine Merrity, a sister, and Michael J. Whalen, a brother, and that on September 23d, 1931, letters of general administration upon the estate of said Elizabeth Swavely were duly granted to Catherine Merrity, who has duly qualified as such administratrix. The complaints conclude with the general allegation that the plaintiffs have performed all conditions of the policies on their part, and that the amounts thereof have not been paid by the defendant, and the plaintiff Catherine Merrity, general administratrix of the estate of Elizabeth Swavely, deceased, or in the alternative Catherine Merrity and Michael J. Whalen, individually, as sole next of kin of said Elizabeth Swavely, deceased, demand the total amount of said policies.

The defendant moves to strike out the complaint 'in each action on the general ground that neither sets forth a cause of action and the proper determination of this question depends upon whether the theory upon which the complaints are drawn is based upon sound principles of law. The theory is that the surviving beneficiary, Howard M. Swavely, cannot recover on the policies in question because of his felonious killing of his co-insured, Elizabeth Swavely, and that under such circumstances, the defendant is not released from lia-' bility under the policies, but is obliged to pay the proceeds thereof to either the estate of said Elizabeth Swavely, or directly to her next of ldn.

It is, of course, settled by the unshaken voice of authority that a beneficiary in an insurance policy who murders the insured forfeits his rights thereunder. As was said by Judge Oliphant in the case of Swavely v. Prudential Insurance Co., 10 N. J. Mis. R. 1 (at p. 4); 157 Atl. Rep. 394 (at p. 395) (which concerned another phase of the same policies involved in the instant cases.): “Nothing could be clearer than that to permit a murderer to collect insurance upon the life of the person he has murdered would be contrary to public policy.” See the long lino of authorities collected in the case just cited.

It must also be conceded, according to the great weight of authority, that where the contract of insurance is made directly between one insured and the company for another’s benefit, a felony of the kind indicated on the part of the beneficiary will not relieve the company of all liability on the policy, but recovery can be had usually by the representative of the insured, and for the benefit of the latter’s estate. Slocum v. Metropolitan Life Insurance Co. (Mass.), 139 N. E. Rep. 816; Schmidt v. Northern Life Association, 112 Iowa 41; 83 N. W. Rep. 800; Kascoutas v. Federal Life Insurance Co., 193 Iowa 343; 185 N. W. Rep. 125; Robinson v. Metropolitan Life Insurance Co., 69 Pa. Super. Ct. 274; Supreme Lodge K. L. H. v. Menkhausen (Ill.), 70 N. E. Rep. 567; 65 L. R. A. 508; Johnston, Admr. v. Metropolitan Life Insurance Co. (W. Va.), 100 S. E. Rep. 865; 7 A. L. R. 823; Anderson v. Life Insurance Co. (N. Car.), 67 S. E. Rep. 53; New York Life Insurance Co. v. Davis (Va.), 32 S. E. Rep. 475; Inter-Southern Life Insurance Co. v. Butts (Ark.), 349; 16 S. W. Rep. (2d) 184; Metropolitan Life Insurance Co. v. Shane, 98 Ark. 132; 135 S. W. Rep. 836; Hewitt v. Equitable Life Assurance Society, 8 Fed. Rep. (2d) 706; Sharpless v. Grand Lodge A. O. U. W. (Minn.), 159 N. W. Rep. 1086; 70 A. L. R. 1542, and cases therein cited; 25 Cyc. 895; 37 C. J. 576, § 341.

The principle underlying the foregoing authorities seems to be that where there is no condition in the policy voiding it in case of the murder of the insured, the liability of the insurance company is the same where death is the result of murder as where it is produced by any other cause, and while public policy forbids the murderer from recovering on the policy, the rule will not be extended to excuse the insurer from paying those who would take if no beneficiary had been named in the policy. A fund having been thus created in the hands of the insurer by the insured a trust is declared to result in favor of the estate of the insured who created the fund. But whatever reasoning may have motivated the courts in other jurisdictions, I do not find that the courts of Hew Jersey have ever been called upon to apply the principle, nor do I believe we are called upon to apply it in the case sub judice.

In all of the cases just cited, the policy insured just one person’s life for the benefit of a single designated beneficiary and the insured himself contracted directly with the company for the policy and paid the premiums thereon, and in most of them the right was reserved to change the beneficiary. In the instant case, however, the policies insure the joint life of two persons with the proceeds expressly payable to the survivor of them and no right is reserved to change the beneficiary. The insurance contract was made between the company on the one hand and two insured persons on the other, and both insured are made responsible for the premiums and are given certain joint rights- in advance of the maturity of the policies. Should these policies be controlled by the same rule as applied in the cases above cited?

An exhaustive search for precedents has revealed only two cases in point, and unfortunately they have taken opposite positions upon the subject. These cases are Equitable Life Insurance Society v. Weightman, Admr. (Okla., 1916), 61 Okla. 106; 160 Pac. Rep. 629; L. R. A. (1917—B) 1210, and Spicer v. New York Life Insurance Co. (Dis. Ct. M. D. Ala.), 263 Fed. Rep. 764; affirmed (C. C. A. 5th Cir., Ala., 1920), 268 Fed. Rep. 500; Cert. denied, 255 U. S. 572.

In the Weightman case, which was the first decided, the insurance company issued a policy covering and insuring the joint life of Thomas Gentry and Alverta Gentry husband and wife, payable to the survivor of them. There was no provision for an alternative beneficiary in the event of disqualification of either beneficiary and no provision that the policy should be forfeited in the event of the murder of the insured. Subsequently Alverta Gentry murdered Thomas Gentry and was convicted of the crime. The suit was brought by an assignee of Alverta Gentry. The administrator of the estate of Thomas Gentry intervened claiming the insurance money. Judgment was rendered in favor of the administrator which on appeal was affirmed.

The court rested the decision upon the proposition that the policy was not joint in the sense that the two insured persons owned all rights under the policy as joint tenants, and that, therefore, the murderer did not take as survivor and that the policy partook of the nature of two separate policies upon the life of each insured for the wholly separate benefit of each of the insured and applied the above mentioned rule applicable to policies where there is only one insured and one designated beneficiary.

On the other hand in the Spicer case it was held that where a husband murdered his wife, an insurance policy on the joint life of the husband and wife, payable to the survivor on the death of either, cannot be collected by the wife’s representatives, although the husband’s conviction for the murder precludes him from recovering on the policy. In the course of the opinion the court said:

“The policy was on the joint lives of the husband and wife, payable to the survivor on the death of either * * *. The liability imposed on the insurer by the policy is purely contractual. That instrument is the measure of the rights of everybody under it. It furnishes no support for a recovery against the insurer by one in whose behalf or favor the insurer has promised to pay nothing in the event of the death of one of the insured, leaving the other surviving * * *. The acceptance of the policy evidences the consent of each of the insured that the occurrence, while the policy is in force, of his or her death, the other insured surviving, shall have the effect of entitling the survivor and no one else, to the sum payable under the policy. The terms of the policy give to the death of one of the two insured the effect of making the survivor the sole beneficiary * * *. The unrevoked designation in the policy sued on of the survivor of the two persons jointly insured as the sole beneficiary in the event of the death of the other insured while the policy was in force, stands in the way of the personal representative of the der ceased insured having any valid claim to the insurance money sought to be recovered.”

I am unable to follow the reasoning adopted in the Weight-man case. If each policy in question is in the nature of two separate policies upon the life of each insured for the wholly separate benefit of each of the insured, then it inevitably follows that there will be two maturities, and the company would be liable for double the face of the policy, or else the respective beneficiaries would only be entitled to one-half of the face of the policy upon the death of his particular insured. In other words, under the theory of two policies embraced in one, upon Mrs. Swavely’s death one such policy would mature, but the other on the life of Mr. Swavely would not mature until his death, and what amount would be payable upon the death of either? Nor does it make any difference as I see it, whether the two insured persons owned all rights under the policies in question as joint tenants so as to give the right to the proceeds to the survivor by operation of law, for the parties themselves, by the express terms of the insurance contract, have provided for just that result. Furthermore, if the interest of the two insured persons in the fund in the hands of the insurer is not joint but several, then it is difficult to understand how a fund created, in part at least, through the payments of the two insured, can be legally claimed by the representatives of only one of them. As already observed, the underlying theory which permits a recovery for the estate of an insured person who has been murdered by the beneficiary specifically named in the policy, is that the policy in that event stands as though no beneficiary had been designated which leads logically to the conclusion that the fund in the hands of the insurer, created through the payment of premiums by the sole insured, should be recoverable by the estate of the person making such payments. In the case sub judice, however, the situation is different. The insurance fund was produced through the joint payments of two insured who expressly provided that the survivor should take all.

There is no allegation in either complaint that Mrs. Swavely alone contracted for these policies, nor that she alone paid the premiums, and in fact the policies insured Mr. and Mrs. Swavely jointly and they were jointly obligated to pay-, the premiums. If public policy prohibits Mr. Swavely from taking any benefits from the policies, does it also cast upon the estate of Mrs. Swavely the right to the whole fund which it is not claimed was created by her payments alone ? I think not. Certainly a resulting trust to the whole fund cannot arise in favor of the estate of one who has jointly created it with another, especially where the parties have specifically contracted that the survivor should take all.

Even if we concede that the two insured had no joint estate or interest in the insurance contract as beneficiaries because only one could ultimately take as survivor thereby terminating the expectancy of the other, nevertheless, their interest in the fund considered as a trust fund resulting from the failure of a beneficiary would be a joint interest resulting in the application of the principle of survivorship, and the survivor having forfeited his rights under the policy, no recovery could' be had by the representatives of the deceased co-insured.

An entirely different picture is presented in'the case of a joint life policy, with proceeds payable to the survivor upon the death of either insured than in the case of a single life policy designating a single beneficiary. In the joint life policy the parties insured have jointly contracted with each other as well as with the insurance company, as by analogy in the ease of joint wills and each engages jointly to pay the premiums to create the insurance fund, and by the provision for survivor-ship each insured has effectively eliminated his next of kin from direct participation in the proceeds of the policy. If the surviving party cannot take the contract it is necessarily at an end. In the ease of a single life policy, however, the fund is created through the payments of a single insured with whom the company directly contracts, and if the beneficiary forfeits his rights under the policy, there is nothing standing in the way of permitting the fund created by the insured from resulting in favor of the estate of the insured.

I am of the opinion that the complaint in each of the above actions does not set forth a cause of action and will, therefore, be stricken out, and an order may be presented in accordance with the conclusion thus reached.


author: Lawrence, S. C. C.

text:
    RICHARD A. SCHOELER, PLAINTIFF, v. CHANCERY LANE CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, AND CHARLES F. HILDEBRECHT, DEFENDANTS.
    Decided July 25, 1932.
    For the motions, Kaizenbach, Gildea & Rudner.

    Opposed, Jacob Siegel.

   Lawrence, S. C. C.

This is defendants’ motion to strike the complaint filed in this suit, on the general ground that it does not set forth a cause of action—as to either defendant —and that, in any event, plaintiff has mistaken his supposed remedy and has no standing at this time in a court of law, so far as the matters set up in the complaint are concerned.

Ho is the holder of eleven first mortgage six per cent, guaranteed gold bonds, aggregating $4,600 in amount, part of an issue of $800,000, secured by a mortgage or trust deed executed by the defendant corporation on the Hotel Hildebrecht property at Trenton. Mr. Hildebrecht is made a party because he appears as guarantor on the bonds. Those of plaintiff fall due July 1st, 1938, but by reason of the failure of the corporation to pay the interest due, he claims the due date has been accelerated and that he now has the right to sue at law and recover judgment for principal and interest, although it appears that suit has been instituted in the Court of Chancery by the trustee for the bondholders generally to foreclose the mortgage and bring about a sale of the property covered thereby, in strict accordance with the provisions not only of the instrument but of the bonds as well.

Defendants urge that the present suit cannot be maintained by plaintiff because the entire bond issue and the trust mortgage are so interlocked and related that the remedy of the bondholders, in the first instance, is the foreclosure of the mortgage, and that a suit at law cannot, in the circumstances, be maintained by an individual bondholder before the conclusion thereof and a sale, by virtue thereof, of the property.

While the statute said to be applicable (3 Comp. Stat., pp. 3420, 3421) is invoked, stress is laid on the provision of the bonds and the mortgage that they are to be taken and considered together as parts of one and the same contract, each bond, with the interest coupon attached, to be subject to all the terms of the mortgage to the same extent as if the latter were fully set forth in the former. Since this is so, it is further argued that only in the event of a deficiency arising at a sale of the property, under the foreclosure proceeding, can a suit at law be brought on the bonds against the corporation and the guarantor, and then only to the extent of such deficiency.

Counsel for plaintiff urges, however, that the bonds and the mortgage are not of the ordinary type and that the statute recognized as applicable in the case of a so-called simple bond and mortgage does not apply; that the bonds in suit carry no penal sum and on the face suggest a contract whereby the holder may sue at law in default of payment of either principal or interest as in the old action of debt and without regard to the mortgage. But it is apparent that this is not •tenable.

The instruments evidencing the debt were manifestly prepared with meticulous care for the evident purpose, among ■others, of forestalling a contingency such as the present suit which if maintainable, would likewise be available to all bondholders, no matter how widely scattered they might be (as in fact they appear to be), and so swamp the corporation and the guarantor in litigation wholly unnecessary, if not indeed vexatious and uncalled for. The bonds and the mortgage were therefore made, by their terms, parts of one and the same contract and subject to enforcement through the medium ¡of a trustee, in the first instance, by foreclosure and sale of the property involved, as in the ordinary ease. They are in the usual form of corporate bonds and the accompanying mortgage or trust deed, commonly used in building operations, -and are hedged about with the detailed and customary terms •and provisions found in such documents. The motion to strike the complaint as to both defendants will be granted.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    IN THE MATTER OF ASSESSMENT FOR ALLEGED BENEFITS CONFERRED UPON LOTS AND PARCELS OF LAND AND REAL ESTATE IN THE TOWNSHIP OF NORTH BERGEN, IN THE COUNTY OF HUDSON, UNDER ORDINANCE ENTITLED “AN ORDINANCE PROVIDING FOR THE CONSTRUCTION OF AN OUTLET SEWER SYSTEM IN THE NORTHERN PART OF THE TOWNSHIP OF NORTH BERGEN IN THE COUNTY OF HUDSON,” ETC., ADOPTED APRIL 24th, 1924, SAID ASSESSMENT CONFIRMED JANUARY 31st, 1929, ETC. ON APPEAL OF JOHN A. WINTERBURN.
    Decided July 23d, 1932.
    For the appellant John A. Winterburn, Wall, Haight, Carey At Hartpence (John W. Ockford, of counsel).
    For the township of Worth Bergen, Mark A. Sullivan and Nicholas S. Schloeder.

   Brown, C. C. J.

This matter comes before the court on an appeal from a resolution of the township committee of the township of Worth Bergen confirming an assessment for the construction of an outlet sewer system commonly known as the northern outlet sewage system. On January 31st, 1929, the township of Worth Bergen caused to he constructed an outlet sewer in the northern part of that township consisting of a main outlet sower; a sewage disposal plant with main and laterals to he used for sanitary and storm water purposes. The improvement in question was undertaken under the authority of Article XX of the Home Rule act of 1917, the pertinent provisions of which are as follows:

“Local improvement defined. 1. A local improvement is one, the cost of which, or a portion thereof, may be assessed upon lands in the vicnity thereof benefited thereby.

Every municipality may undertake any of the following works as1 a local improvement:

(h) Sewers and drains—sewage disposal. The constructing, reconstructing, enlarging or extending a sewer or drain in, under or along a street, road, avenue, alley or public highway, or portion thereof, or in, under or along any public or private lands; the constructing, reconstructing, enlarging or extending of a system of sewerage or drainage or both combined; the constructing, reconstructing, enlarging or extending system of drainage of the marshes, and wet lowlands, within the municipality; the constructing, reconstructing, enlarging or altering a system of works for the sanitary disposal of sewage or drainage.”

According to the statutory direction the amount of assessments should reflect the peculiar benefits received by the property shown to be assessed. The benefits may be direct or indirect. The appellant John Winterburn was assessed in the sum of $7,035.36 upon a tract of land containing two and twenty-eight one-hundredths acres. The Winterburn property consists of low meadow lands not in use for any purpose whatsoever.

Prior to the assessment the township for the purpose of carrying on the sewer project had acquired a part of the land assessed against Winterburn. The township concedes that the assessment is incorrect in so far as it assesses against Winter-burn the property acquired by the township and that instead of Winterburn being assessed for two and twenty-eight one-hundredths he should be assessed for two and thirteen one-hundredths acres. This correction would result in a reduction of $458 in the assessment charged against the Winter-burn land.

The question for decision is whether or not Winterburn should be assessed at all for the remainder of the land that is concededly owned by him. The nearest physical approach or contact of the Winterhurn land with the northern outlet sewer is a pipe line that is used as an overflow from the disposal plant or other parts of the sewage system across the land transferred from Winterburn to the muniepality. The testimony remains uneontradicted by two competent engineers that from an engineer’s standpoint it is impossible for the lands of Winterburn to be used in any way or be benefited by the northern outlet sewer, its disposal plant or any of its connections; that in order for the Winterburn property to receive any benefit'from this sewer system it would be necessary to lay a pipe some nine hundred feet in length or erect a pumping station at a cost from $6,000 to $10,000 and acquire land for that purpose. It was conceded by all parties that it was impossible for the Winterburn property to be connected to the twenty-inch cast iron pipe overflow. There is testimony by a real estate expert on the part of the township that there is a prospective benefit to the Winterburn property from this improvement; notwithstanding, that it is now physically impossible to use the sewage system. It is a question of actual present availability that the court is concerned with and not what can be done by the construction of additional facilities. Milburn Township v. Smith, 9 N. J. Mis. R. 307; 153 Atl. Rep. 637.

From the testimony in this case it appears almost conclusively and certainly by the greater weight of the evidence that the Winterburn property assessed has not received, by the improvement in question, any appreciable benefit therefrom. There being no actual present benefits received by the land in question either directly or indirectly, and that the Winterburn land cannot be benefited by the improvement except by the construction of additional facilities, it follows that the assessment made against the property of John A. Winter-burn should be set aside and an order may be entered accordingly.


author: Eldrebge, C. O. J.

text:
    JEAN T. DINGER, RECEIVER OF THE WESTMONT NATIONAL BANK, AN INSOLVENT INSTITUTION, PLAINTIFF, v. JULIA M. ROTHERY AND GEORGE A. ROTHERY, DEFENDANTS.
    Decided July 26, 1932.
    For the plaintiff, Albert S. Woodruff.

    For the defendants, Patrick PL. Harding.

   Eldrebge, C. O. J.

This matter comes before the court on motion to strike an answer, and is submitted upon the following stipulation:

“Suit was instituted by plaintiff against defendants on a certain promissory note, given by. the defendants Julia M. Eothery and George A. Eothery, to the Westmont National Bank, on July 27th, 1931, of which the following is a true copy of said note upon which suit was instituted:

$1,450.00 Westmont, N. J., July 27th, 1931.

......three months......after date, I, we, each or either of

us, promise to pay to the order of......ourselves......at

Westmont National Bank Westmont, N. J.

Fourteen hundred fifty and no/100................dollars together with all costs and an attorney’s collection fee of ten per cent, should it become necessary to collect the amount due hereon by or through the services of an attorney or legal process.

Value received, without defalcation, or discount.

No. 4854 due 10-27-31.

Julia M. Rothery, George A. Rothery,

277 Harrison Avenue, Jersey City, N. J.

Endorsed,

Julia M. Rothery,

George A. Rothery.”

Subsequent to the giving of said note, the said Westmont National Bank was declared insolvent and Jean T. Dinger appointed receiver of said insolvent institution by the comptroller of the currency of the United States. By authority of said appointment said Jean T. Dinger, as receiver, instituted suit upon said note then in the possession of the Westmont National Bank.

Defendants Julia M. Rothery and George A. Rothery filed their petitions on or about August 8th, 1929, for adjudication in bankruptcy in the United States District Court for the district of New Jersey, and at the time of the filing of said petitions said defendants were indebted to the Westmont National Bank. Julia M. Rothery and George A. Rothery listed, in their schedules, the debt then due and owing the Westmont National Bank. On October 28th, 1929, said defendants were discharged in bankruptcy from their debt, by the United States District Court for the district of New Jersey.

Subsequent to the entering of said discharge in bankruptcy the defendants made and delivered the note upon which suit was instituted.

The only question in dispute is whether the promissory note given by defendants to the Westmont National Bank, for a debt barred by a discharge under the bankrupt laws, is a valid promise upon which the present suit can be maintained.

We think that the question submitted must be answered in' the affirmative. As far back as J 846, in the case of Briggs and Ely v. Sutton, 20 N. J. L. 581, the court, referring to obligations of this kind, said:

“The ordinary cases are debts barred by the statute of limitations, debts incurred by infants and debts of bankrupts * * *. Express promises founded on such pre-existing equitable obligation may doubtless be enforced; there is a good consideration for them; they merely remove an impediment created by law to the recovery of debts honestly due, but which public policy protects the debtors from being compelled to pay * * *. Not the weight only, but the whole current of authority sustains the consideration of an express promise by a bankrupt to p&y a prior debt from which he has been discharged by bankruptcy, when the promise has been distinct and unequivocal.”

To the same effect see Christie v. Bridgman, 51 N. J. Eq. 331; 30 Atl. Rep. 429, in which case Vice-Chancellor Green said:

“A note given by a discharged bankrupt to his former creditor for the original indebtedness is held to be on sufficient consideration and enforceable.”

This principle finds recognition in our statute of frauds and perjuries, section 8 (Comp. Stat., p. 2616), which provides:

“That no action shall be maintained against any person who may have been discharged as a bankrupt under the laws of the United States, upon any promise, made after such discharge, to pay any debt or demand, from which he was or shall be released by such discharge, unless such promise be put in writing and signed by the party to be charged therewith.”

Again, the same principle is recognized in Holt v. Akarman, 84 N. J. L. 371; 86 Atl. Rep. 408, cited by counsel for the defendant in his brief. This case holds that recovery may be had providing three elements are present, namely: (1) the promise must be in writing; (2) it must be distinct and unequivocal, and (3) it must be after the discharge of the bankrupt.

All of these necessary elements are present in the instant case, unless a written promise in addition to the execution and delivery of the note itself is essential. Brief of counsel for the defendants seems to indicate that such additional promise is required, and Holt v. Alcarman is cited as authority for such contention.

This view, it seems to the court, is based upon the assumption that the note in that case was given after the discharge in bankrputcy. Counsel, in his brief, page 3, paragraph 2, states:

“The plaintiff’s reply was that after the defendant became a bankrupt and was discharged, he signed the note in question.”

The case does not admit of any such assumption. There is nothing to indicate when the note was given, and apparently neither the trial court nor the appellate court make any reference to the note itself as being a subsequent promise, but the case turns upon promises contained in two letters, one of which was prior and the other subsequent to the discharge. The court merely holds that the letter written prior to discharge could not be considered, and that the letter written subsequent to discharge was not sufficiently definite to bind the defendants.

In the present suit, the note itself constitutes the promise, and in the judgment of the court all the conditions essential to recovery have been complied with.

The motion to strike the answer is granted.


author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELIZABETH MONROE, PETITIONER, v. JOSEPH A. KANTOR, RESPONDENT.
    Por the petitioner, Paul M. Salsbury.

    Por the respondent, Orlando & Kisselman.

   Hi Hs H* ❖ ❖ ❖ ❖

The testimony as taken at this trial shows that Charles G. ■Monroe was employed by the respondent on June 24th, 1931, on which day while changing a tire besides the road he was struck by a passing automobile, which accident caused a fracture of the skull, internal injuries and instant death. The petitioner brings action against the respondent for compensation as the deceased’s dependent wife. It appears from the testimony that the deceased was formerly married and lived with his wife and two children in Connecticut; that at some time prior to 1925 he deserted his family and came to New Jersey, and that a number of years ago he was joined by the petitioner who lived with him as his wife. It further appears that the deserted wife in Connecticut instigated divorce proceedings and was granted a divorce on October 16th, 1925, and given the custody of her two minor children. The record shows that the petitioner was never married to the deceased as the result religious services or married as the result of a civil service. She claims to be his common law wife, and there is abundant testimony that the deceased introduced her as his wife and in other ways gave those with whom they came in contact to understand that she was actually his wife.

The law of New Jersey recognizes as valid the relationship of husband and wife following religious rights according to the requirements of various religious denominations or a civil ceremony performed by one legalized to solemnize such a contract. A common law marriage is also recognized by the law of this state providing there be a valid agreement entered into between the contracting parties and that there is no empediment preventing either one or the other from conscientiously entering into such a contract. The mere fact that the man may introduce a woman to his associates as his wife certainly cannot constitute the meeting of the minds of the two persons in solemn contract of the relationship of husband and wife. Such introduction may be made purely in jest or for some other purpose not involving an actual intention to live together as man and wife. If there be any impediment which would prevent a legal marriage or a religious- ceremony, such impediment would prevent a common law relationship.

The record in the case at bar shows conclusively that the petitioner knew that Charles Monroe was married when she went to live with him and so far as she was concerned prevented her entering into a common law relationship at that time nor could she at any time thereafter have a valid understanding with the deceased with regard to common law marriage while she was under the impression that he was still the husband of a living wife. According to her own testimony, she never knew that there had been a divorce decree. Consequently, so far-as she was concerned there was always this impediment to her entering into a valid contract with the deceased. I am constrained to believe, therefore, that under these circumstances she was not the legal wife of the deceased and consequently is not in a legal position to claim dependency under that relationship under the terms of the Workmen’s Compensation law.

. Petition dismissed.

W. E. Stubbs, Deputy Commissioner.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN H. MANDY, PETITIONER, v. FEDERAL SHIPBUILDING AND DRY DOCK COMPANY, RESPONDENT.
    For the petitioner, Herman M. Wilson.

    For the respondent, Lindabury, Hepue & Faulks (William L. Dill, Jr., of counsel).
   This matter being opened to the court by William L. Dill, Jr., of Messrs. Lindabury, Depue & Faulks, attorneys of the respondent, in the presence of Herman M. Wilson, attorney for the petitioner, and it appearing by a petition filed November 6th, 1931, that the petitioner seeks to recover compensation for disability which he alleges has resulted from injuries sustained in an accident with which he met on May 2d, 1930, while in the employ of the respondent; and it further appearing that on June 27th, 1930, the petitioner filed a petition in this bureau to recover compensation to which he alleged he was entitled for injuries alleged to have been sustained by him in an accident with which he met on May 2d, 1930, while in the employ of the respondent, to which petition the respondent filed an answer in which it denied that the petitioner had any permanent disability whatsoever which resulted from the alleged accident; and it further appearing that the parties by their respective attorneys effected a settlement of the petitioner’s claim by the terms of which settlement respondent agreed to pay to the petitioner and the petitioner agreed to accept certain compensation as set forth in the compromise agreement signed by the parties hereto dated October 4th, 1930, which agreement is on file in this bureau; and said compromise agreement further provided that the compensation therein agreed to be paid and accepted was in full and final settlement of any and all claims which the petitioner had, claimed to have, or might claim to have, on account of the injuries alleged to have been sustained by him as a result of the accident aforesaid, and that the agreement could not be opened or reviewed by either party on account of any subsequent increase or decrease of disability; and it further appearing that the petitioner signified under oath that he fully understood the terms of said agreement and that he was satisfied therewith, said agreement was then approved by Charles E. Corbin, deputy commissioner of labor.

And it further appearing that the respondent has made all of the payments which it agreed to make, and the court having heard the argument of counsel and being of the opinion that this bureau is without jurisdiction in this matter and that the petitioner is barred from securing any further compensation for an alleged increased disability, alleged to have resulted from the accident with which he met on May 2d, 1930, while in the employ of the respondent.

It is therefore ordered that the petition filed in this matter be and the same is hereby dismissed.

Charles E. Corbin, Deputy Commissioner.


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FREDERICK C. COLLAWN, PETITIONER, v. 25 NORTH HARRISON STREET CORPORATION; AND/OR ALEXANDER ISSERMAN, INDIVIDUALLY, OR ALEXANDER ISSERMAN & SONS; OR UNITED STATES AGENCY AND/OR UNITED STATES MORTGAGE AND TITLE GUARANTY COMPANY OF NEW JERSEY, IN THE ALTERNATIVE, RESPONDENTS.
   In this matter the petitioner filed formal petition against all of the named respondents in the alternative and the eases were tried together.

The case sub judice is extremely unusual and the testimony is largely undisputed, the only question being with and by whom was the petitioner employed on October 6th, 1930, or the time when the accident occurred.

The petitioner was employed December 15th, 1928, as a janitor by the 25 North Harrison Street Corporation and received wages of $38.25 per week—he continued in this capacity until October 6th, 1930, when, in the course of his duties, attending the oil burner in the boiler room, he slipped, both feet going from beneath him, landing on the end of his spine on the concrete floor. He sustained a severe compression fracture of the first lumbar vertebra with marked crushing of the body substance.

It is undisputed that petitioner sustained an accident arising out of and in the course of his employment and that each of the respondents had knowledge or notice within the time required by the provisions of the Workmen’s Compensation act. Mr. Peter' Wright, superintendent of the building was notified immediately upon the happening of the accident while Mr. Alexander Isserman visted the injured man the following day and requested Dr. E. Tutschulte, the attending ■physician, to give every medical attention required.

Since this occurrence, the petitioner has been under the care of the physician; has been X-rayed and seen in consultation by various doctors. He has been and is still required to wear a special celluloid jacket for continuous support, and has been unable to do any kind of work since that time.

As was indicated before, the burden is upon the petitioner to establish employment, and I am inclined to the belief that ■from all the evidence and testimony adduced, the “25 North Harrison Street Corporation” was his employer, and I do .so find—yet, I cannot refrain from noting that I feel very strongly that the arrangement between the “25 North Harrison Street Corporation,” Alexander Isserman and the United States Mortgage and Title Guaranty Company of New Jersey, through its agent, the “United States Agency,” was an ingenious plan to protect the parties involved, at the expense, perhaps, of innocent parties, and it was, to say the least, extremely difficult for the petitioner to know his real employer.

It appears from the testimony that at the time the petitioner was employed as janitor by the “25 North Harrison 'Street Corporation,” it owned the premises in question—a large apartment house, having acquired same in 1926.

The United States Mortgage and Title Guaranty Company •of New Jersey held a first mortgage on the premises in the ■sum of approximately $375,000, and as a result of a default in payment of interest and taxes, the United States Mortgage and Title Guaranty Company of New Jersey instituted foreclosure proceedings; about July 7th, 1928.

Pending the foreclosure proceedings, the United States Morgtage and Title Guaranty Company of New Jersey, through its agent, “United States Agency,” took possession of the mortgaged premises and undertook to collect rents, although the title still remained in the “25 North Harrison Street Corporation.”

On April 8th, 1930, the United States Mortgage and Title Guaranty Company of New Jersey, and Alexander Isserman, as principal stockholder of the “25 North Harrison Street Corporation,” entered into an agreement which provided amongst other things, that said foreclosure suit was to continue until the sheriff’s sale, and that title should be acquired by the United States Mortgage and Title Guaranty Company. A new corporation was then to be organized to take over the property from the said mortgage company, subject to mortgage in the sum of $435,000. This agreement further provided that in the event the sheriff’s sale had not taken place by July 1st, 1930, that the “25 North Harrison Street Corporation” should retake the control and management of the apartment house (paragraph 16 of agreement of April 8th, 1930). This agreement was approved by the 25 North Harrison Street Corporation, and during July, 1930, the United States Mortgage and Title Guaranty Company, through its agent, the “United States Agency,” relinquished the management of the premises to the 25 North Harrison Street Corporation, and that corporation through its president and agent, Alexander Isserman, collected the rents which were placed in a special account in the Fidelity Union Trust Company, opened August 5th, 1930, and from then on until after the occurrence of this accident to the petitioner, the rents were collected, placed in that account, and the employes paid by the 25 North Harrison Street Corporation, through Alexander Isserman, from the rentals collected as aforesaid.

The property.was purchased at the sheriff’s sale by the United States Mortgage and Title Guaranty Company of New Jersey on September 4th, 1930. The sheriff’s deed is dated October 2d, acknowledged October 4th, 1930, and recorded in the register’s office of Essex county, December 24th, 1930.

Notwithstanding the foreclosure proceedings, I feel that the United States Mortgage and Title Guaranty Company, through its agent, United States Agency, merely stepped in to protect its interest, and from the undisputed testimony of the president of the 25 North Harrison Sreet Corporation, the peitioner’s contract of employment has never been terminated, but rather had continued in full force and effect through the pendency of the entire proceedings.

I therefore find as a fact that the petitioner was in the employ of the 25 North Harrison Street Corporation, and on October 6th, 1930, he sustained an accident arising out of and in the course of his employment; that he is entitled to compensation at the rate of $20 per week for a period of sixty-six weeks, or from October 6th, 1930, to January 12th, 1932. Inasmuch as petitioner received his wages from October 6th, 1930, to January 15th, 1931, approximately fourteen weeks, the 25 North Harrison Street Corporation shall be allowed as credit fourteen weeks compensation to be applied on the temporary total compensation period.

I find that as a result of the accident, petitioner has sustained a permanent disability of fifty per cent, of total.

It is further ordered that the petition filed against Alexander Isserman, individually, be and the same is hereby dismissed, and that the petition filed against Alexander Isserman & Sons be and the same is hereby dismissed, and that the petition filed against the United States Agency be and the same is hereby dismissed, and that the petition filed against the United States Mortgage and Title Guaranty Company of New Jersey, be and the same is hereby dismissed.

John J. Stahl, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    NETTI MAURELLO, PETITIONER, v. JAMES Z. MAURELLO, RESPONDENT.
    Por the petitioner, Harry Joelson.

    Por the respondent, Harley, Gox & Walburg (Arthur F. Mead, of counsel).
   H« H* . Hí H« H« Hi" Hi

Upon the pleading, the testimony adduced, and the stipulations of the attorneys made in open court, the folloAvingfacts appear: On January 7th, 1931, dSTetti Maurello, the petitioner, was engaged as a buyer and saleslady in Jimmy’s Department Store, located at 67 Main street, Paterson, Hew Jersey, which store was owned and operated by the respondent,. James Z. Maurello, her husband. She received for her services a salary of $30 per week. On January 7th, 1931, at or about five p. m., while in the performance of her duties'as a saleslady, she fell from a platform injuring her right leg. It is for this injury that the present compensation proceeding is brought.

The question to be determined is whether or not the petitioner, being the wife of the respondent, is entitled to recover compensation from him under the Workmen’s Compensation, act.

It is a cardinal principle that a Workmen’s Compensation act, being a remedial statute, must be construed liberally in order to carry out its beneficent purposes; however, in order for one to recover compensation, it must first appear that, there is a contract of employment, a legal and enforceable-contract.

In the case of Boyle v. Van Splinter, 101 N. J. L. 89; 127 Atl. Rep. 257, Chief Justice Gummere, speaking for the Court of Errors and Appeals, stated: “It is only in those cases where the contract of hire is valid that the Workmen’s Compensation act is applicable.”

Plainly, a wife working for her husband does not come within the purview of the Workmen’s Compensation act. Obviously, one cannot be employed without a contract of hire. Employment presupposes a contractual relationship. A married woman cannot make a contract of employment, either express or implied, with her husband.

It is elementary in law that a married woman owes her services to her husband, while there is a corresponding duty upon her husband to afford her proper maintenance. Surely, a married woman acting as a housewife could not entertain a claim for compensation against her husband if she was injured in the performance of her house work. How, then, can a recovery be had under the Compensation act where a married woman, while rendering services to her husband in his business, becomes injured?

Compensation benefits are rights which arise out of the contract of employment itself. They are terms which the law reads into such contracts of employment and become part and parcel of each contract of employment. In the instant case, if there were no valid contract of employment existing between the petitioner and the respondent, surely there can be no compensation rights inuring therefrom to her.

There is a case in Massachusetts where the Supreme Court, in the Humphreys case, laid down the rule that a married woman cannot make a contract of employment with her husband, and consequently, cannot recover in a compensation proceeding where she suffers an industrial accident while working for him.

Petition dismissed.

John J. Stahl, Deputy Commissioner.


author: Pee Cueiam.

text:
    COMMERCIAL CREDIT CORPORATION, PLAINTIFF-RESPONDENT, v. JAMES W. LOWE AND HELEN LOWE, DEFENDANTS-APPELLANTS.
    Argued May 4, 1932
    Decided August 1, 1932.
    Before Justices Teenchakd, Case and Bkogan.
    For the plaintiff-respondent, Clarence A. Ward.

    For the defendants-appellants, William K. Flanagan.

   Pee Cueiam.

This is an appeal from the First Judicial District Court of the county of Essex where a directed verdict was rendered in favor of the plaintiff corporation and against the defendants on a promissory note made by the defendants to J. Forbes Wiley, payable at the office of the plaintiff, and endorsed by the payee. The note was proved, the signatures thereon were admitted, and the amount unpaid was proved and not disputed.

The only specification properly before us is the sixth, namely, that the court erred in directing a verdict; and under this point it is argued that it was for the jury to say whether the plaintiff was bound, under the principle of agency, by certain representations made in its office.

It appears from the testimony of James W. Lowe that Wiley, a house painter, had made a contract with Mr. and Mrs. Lowe to paint their house, and that the work had been done, but not to the witness’ satisfaction; that on a certain Saturday the witness went with Wiley to the offices of the plaintiff, a finance corporation, in Few York, to see about executing a note in payment, that the two, on getting off the elevator, walked into a big office where there was an old man who, after “Mr. Wiley went up and spoke to him,” took them “to about the middle of the room to another office,” where a younger man, without any introduction, first talked privately with Wiley and then, having heard Lowe’s complaint about the paint, said, “If anything goes wrong, we will make good.” The note was not signed until three days later when Wiley brought it to Lowe’s house. The defense hinges upon the authority of this unnamed person, as agent, to bind the plaintiff. To obligate a corporation upon a contract it must be proven that the contract was the act of the corporation either by corporate action, the act of an authorized agent or by adoption and ratification. The Aerial League of America v. Aircraft Fireproofing Corp., 97 N. J. L. 530; 117 Atl. Rep. 704. Mo corporate action is alleged or proved. There are cases, of which Smith v. Delaware and Atlantic Telegraph and Telephone Co., 64 N. J. Eq. 770; 53 Atl. Rep. 818, is one, holding that a person may by permission, recognition or acquiescence occasion a reasonable inference that another is his agent. In the cited case there was evidence of salient facts entirely lacking in the case at bar, as that the person charged with agency was known by name, assumed to act as general manager, occupied an office purporting to be that of the general manager, and had preliminary knowledge of the facts such as would come to one in that position; and in addition there was an averment, made admissible by such evidence, by the person assuming to act that he was in fact the agent of the principal. Mot one of these facts, or the equivalent thereof, appears in the ease before us. There is no testimony as to the name or the position of either of the men mentioned, no representation that either of them was an agent, no suggestion of title or indicia of authority on the door of the office, or on the desk of the person who gave the alleged assurance. There were no incidents from which agency could be reasonably inferred. Defendants failed to show agency. There was no proof of adoption and ratification. Consequently the alleged assurance could not be set up as an undertaking by the plaintiff. Likewise the defendants failed to show knowledge, by the plaintiff, of any facts that would militate against its position as a holder in due course. There was nothing to go to the jury. The direction of verdict was proper.

Our finding in this respect is dispositive of the appeal. However, we note that of the remaining five specifications the first complains of a refusal to admit an agreement, no copy of which is placed before us for examination; and the other four do not apprise the court with precision of the errors complained of. Cornish v. Jenks, 109 N. J. L. 87; 160 Atl. Rep. 521; State v. Blaine, 104 N. J. L. 335; 140 Atl. Rep. 566.

Judgment below will be affirmed, with costs.


author: Pee Curiaii.

text:
    BENJAMIN WALLACH, PLAINTIFF-RESPONDENT, v. LIGHTENING ELECTRIC COMPANY AND ELMER DUNHAM, DEFENDANTS-APPELLANTS. JOSEPH ROSEN, PLAINTIFF-RESPONDENT, v. LIGHTENING ELECTRIC COMPANY AND ELMER DUNHAM, DEFENDANTS-APPELLANTS.
    Argued May 3, 1932
    Decided August 1, 1932.
    Before Justices Tkenchakd, Case and Bkogan.
    For the plaintiff-respondent, Maurice M. Margolis (James M. Reilly, of counsel).
    For the defendants-appellants, Edwin Joseph O’Brien.

   Pee Curiaii.

These are appeals by the defendants from judgments entered. against them in the Eirst District Court of the city of Newark on directed verdicts. The suits were, respectively, by the owner of an automobile for property damage and by the driver of the automobile for personal injuries arising out of a rear-end collision between the automobile so owned and driven and another automobile owned by defendant Lightening Electric Company and driven by defendant Elmer Duniam. Defendants’ testimony was that their car was following that of the plaintiffs at a distance of eight or nine feet and at a speed of about twenty miles per hour; that plaintiffs’ ■car was stopped at a cross street “very short;” that Dunham was unable to stop defendants’ car so quickly and that the latter consequently bumped the car ahead. There was no proof of traffic conditions, or of signals from the plaintiffs’ car or otherwise. The court charged the jury as follows:

“I am directing you to bring in a verdict against the defendants for the reason that the driver for the defendant says that he was driving his car shortly before this accident .at a speed of about twenty miles an hour when only eight feet in the rear of the car in front. That, I charge you, is negligence. The person driving in front has no control of the car behind him, and when you are driving a car in a city where there axe cross streets you must anticipate sudden stops for traffic. The only explanation the driver for the defendant has is, that the plaintiff made a sudden stop, and, 7 could not stop as good as he could;’ or indicating there was negligence, and the plaintiffs are entitled to a verdict.”

It is quite likely that the jury would have found negligence as a fact on the part of the defendants. But we are unable to say, and we think that the court below erred in holding, that there was negligence as a matter of law. The mere fact that a vehicle is moving in close proximity to a moving vehicle ahead and keeping up with it does not of itself constitute negligent conduct per se. Jackson v. Geiger, 100 N. J. L. 330; 126 Atl. Rep. 438; Simpson v. Snellenburg, 96 N. J. L. 518; 115 Atl. Rep. 403; Goolsby v. Public Service Co-ordinated Transport, 9 N. J. Mis. R. 1158.

The ease should have gone to the jury on the question of liability; otherwise we find no error.

The judgment below will be reversed; the costs to abide the event.


author: Eldeedge, C. C. J.

text:
    WILLIAM CAMPBELL, Jr., BY HIS FATHER AND NEXT-FRIEND, WILLIAM CAMPBELL, Sr., AND WILLIAM CAMPBELL, Sr., IN HIS OWN RIGHT, PLAINTIFFS, v. ROSA HARRIS AND JOSEPH A. HARRIS, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS.
    Decided August 2, 1932.
    Before Henry H. Eldredge, judge of the Circuit Court.
    Eor the plaintiffs, Carr & Carroll.

    Eor the defendants, A. Moulton McNutt.

   Eldeedge, C. C. J.

This matter comes before the court on a rule to show cause why a verdict of no cause for action in favor of the defendant Joseph A. Harris-, and against both plaintiffs, should not be set aside and a new trial granted.

On what is known as Hallowe’en or “Mischief Night,”' October 30th, 1930, a number of high school boys and girls were making mischief in the neighborhood of the defendant’s-back yard at Collingswood, New Jersej’, in the course of' which they threw tin cans into the yard of defendants and perhaps some objects against the house. Rosa Harris, one-of the defendants, came to her back door and shot a revolver which she alleged was loaded with blank cartridges, but. simultaneously with her shot a bullet entered the leg of the plaintiff, William Campbell, J'r., who was not a member of the group of mischief makers, but was standing near a garage, from which point he could see the fun.

At the close of the trial the jury rendered a verdict in favor of the plaintiff and against the defendant Rosa Harris, for his personal injuries in the sum of approximately fifteen hundred dollars.

While there is no dispute that Mrs. Harris fired the revolver from the door of her own and her husband’s home, counsel for the plaintiff sought to hold the husband as well as the wife on three separate grounds, namely: (1) that he was guilty of negligence in providing the revolver and making it available for the use of his wife; (2) that the wife was acting as his agent at the time the shooting occurred; (3) that the injury resulted from a joint undertaking in which hoth were engaged at the time.

The question of the responsibility of Harris was submitted hy the court to the jury on all three grounds. Counsel now ■contends that a verdict having been returned against the wife, a verdict of no cause for action, in favor of the husband, was against the weight of the evidence. Counsel’s contention is that Harris’ own testimony, if there were no other, should Tiave caused the jury to hold him jointly liable with his wife.

It is undisputed that the husband purchased the revolver the latter part of April, 1930, and brought it home. On the afternoon of October 30th he bought a box of blank cartridges .and took them home with him. He testified that he loaded the revolver at about seven p. m. with the blanks taken from the box he had purchased. The loading of the revolver took place in the presence of his wife, and he then laid it on the refrigerator or the kitchen table. He further testified: “I put it there with the intention if there is a repetition of the last two. years’ outrages at the house to fire them to scare dhem away.” The witness also testified that he knew of no experience which Mrs. Harris had had in the use of firearms.

On the other hand, he testified that it was not his intention that either he or his wife should use it, and his testimony is positive that he loaded it only with blank cartridges. He further stated that just prior to the shooting he had told his wife to call the police, and at the time of the shooting he was in the dining room, himself about to call the police station. This room was twenty-five feet from the back steps, where the pistol was fired. He did not know Mrs. Harris was going out to the steps.

It appears ito the court that in the light of the above testimony and other testimony presented by the defendants and their witnesses, the jury might have found Harris jointly liable with his wife. On-the other hand, however, the court does not feel that as a matter of law they were obliged to do so. Whether Harris was negligent, whether his wife was acting for him at the time, or whether they were acting jointly,.appears to the court to present questions upon which minds might, with justification, differ, and hence are jury questions. All three having been submitted to the jury by the court and all three having by them been resolved in the-defendant Harris’ favor, this court is not justified in disturbing the verdict.

The rule will be discharged.


author: Pee Cttkiam.

text:
    GENERAL CONTRACT PURCHASE CORPORATION, PLAINTIFF-APPELLANT, v. BICKERT ET AL., DEFENDANTS-APPELLEES.
    Argued May 3, 1932
    Decided August 4, 1932.
    Before Justices Teen chard, Case and Brogan.
    For the plaintiff-appellant, Boray & Turnbull.

    For the defendants-respondents, W. Louis Bossle.

   Pee Cttkiam.

This is an appeal from a judgment of the District Court of the city of Camden involving a replevin action to recover the possession of two oil burners valued at $186. The burners were manufactured by the Dallin Oil Burners Sales Company, sold to the General Contract Purchase Corporation and delivered to Litchfield Utilities Company, a distributor or dealer, which company executed a trust receipt in favor of the General Contract Purchase Corporation agreeing to keep said property for the General Contract Purchase Corporation and not to rent, mortgage, encumber or sell the property unless the amount advanced by the General Contract Purchase Corporation be paid out of the sales price. This trust receipt was filed in the office of the register of deeds of Camden county as a conditional sales agreement.

Now the distributor, Litchfield Utilities Company, was a tenant in the building of the Broadbank Corporation and the defendant Bickert was its real estate agent. The tenant, Litchfield Utilities Company, didn’t pay rent for three months and, consequently, was $180 in arrears. The said Bickert, as agent of the landlord, distrained upon the two oil burners which are the subject-matter of this suit and at the sale had upon said distraint, purchased the property for the sum of $50. Plaintiff below replevied these burners and the defendant did not re-replevy. Judgment was given in favor of the defendant in the sum of $186 and costs. Plaintiff appeals.

The first ground of appeal is that the court erred in its determination that the trust receipt given by the distributor, Litchfield Utilities Company, to the General Contract Purchase Corporation was in effect a chattel mortgage and therefore void as against Bickert. We cannot agree with this reasoning for reversal. The instrument in question was recorded as a conditional sales agreement, though essentially it was a chattel mortgage. There is no consideration mentioned and it is therefore void as against creditors of Litchfield Utilities Corporation. Cf. Commonwealth Finance Corp. v. Schutt, 97 N. J. L. 225; 116 Atl. Rep. 722. In that case it was held that where an owner sends his goods to be sold by a distributor upon condition that if and when sold, the distributor will pay over to him the proceeds of the sale and the agent makes sale and does not pay over to the owner the proceeds, the owner is estopped to deny the validity of that sale. The principle of law laid down in that case applies to and is dispositive of the appellant’s contention. See, also, Karhuff v. Mutual Insurance Co., 108 N. J. Eq. 128; 148 Atl. Rep. 160, and Unger v. Hochman, 4 N. J. Mis. R. 445; 133 Atl. Rep. 180.

Certainly the creditor of the distributor was no party to the contract between the distributor and the appellant here. He had no legal notice of such relationship except the filing of the trust receipt and that instrument being in fact and in essence a chattel mortgage comes with the rule governing instruments of that character, and there being no consideration set out in that instrument it is void as against such creditor. Karhuff v. Mutual Insurance Co., supra.

The second ground of appeal is that the court had no right to enter a judgment for a sum certain in money but rather should award the defendant a return of the goods since the court found in favor of the defendant. As we read the agreed state of facts this point seems to us to be a distinction without a difference. In the first place, the value of the chattels in question has been stipulated. In furtherance of this' argument the appellant says that the procedure outlined by the one hundred and thirty-seventh section of the District Court net was not followed; that there was no five days’ notice given for the purpose of inquiry as to the value of the chattels. The point is not well taken for the reason that the value being agreed upon the necessity for the inquiry was ■eliminated.

We see no force in the further point made in substantiation of the argument that Bickert had no such title as would ■entitle him to a money judgment. He had distrained for rent; there was a sale under his distraint; he was the purchaser at the sale and as such acquired a clear, legal title such ;as entitled him to the judgment recovered below.

The judgment of the District Court is affirmed.


author: Pee Ctjeiam.

text:
    CARL ALLEN, PLAINTIFF, v. OTIS ESTELL, DEFENDANT.
    Argued May 3, 1932
    Decided August 4, 1932.
    Before Justices Teenchabd, Case and Bbogust.
    Bor the plaintiff, John Meirs.

    Bor the defendant, James Mercer Davis.

   Pee Ctjeiam.

This is a motion to dismiss a writ of certiorari for lack of prosecution. The writ was returnable at the January term, 1932, of the Supreme Court.

By the ninety-fifth section of the statute concerning Justices’ Courts (to review a judgment of which court this writ of certiorari was allowed) it is provided that the writ shall he prosecuted at the first time after due return thereto shall have been made ox be dismissed, unless good reason shall appear for failure to prosecute. Cf. 3 Comp. Stat., p. 3010.

It further appears that the ease was not noticed for argument; reasons were not filed in the canse until the end of April, 1932; the bond filed was insufficient in amount.

Certainly in this case there has been lack of prosecution and a failure to live up to the requirements of both the statute and the rules of this court relative to matters of this character. The failure to file sufficient bond is a transgression of the mandate of the statute itself (Cf. 3 Comp. Stat., p. 3009, § 94), and is in the nature of a failure of a condition precedent.

The application therefore to dismiss the writ is granted, with costs.


author: Pee Cubiam.

text:
    ABRAHAM SPEARS ET AL., PROSECUTORS, v. BOARD OF COMMISSIONERS OF NORTH BERGEN, DEFENDANT. HERBERT RECK ET AL., PROSECUTORS, v. BOARD OF COMMISSIONERS OF NORTH BERGEN, DEFENDANT.
    Argued October 6, 1931
    Decided February —, 1932.
    Before Justices Tkencitaed, Daly and Donges.
    Por the prosecutors, William George.

    Por the defendant, William E. Sewell (Nicholas S. Schloeder, of counsel).
   Pee Cubiam.

These cases are before this court upon two writs of certiorari allowed to review the action of the board of commissioners of North Bergen in abolishing the positions of the prosecutors and dismissing them from the service of. the township. The prosecutors are nine firemen in one writ and twenty-six policemen in the other, all of whose positions were abolished.

The positions held by the prosecutors were created on December 31st, 1930, by the administration then in control of the affairs of the township. This group continued in control until .May 19th, 1931, when the so-called reform faction took control by virtue of an election held under the Walsh act which had been adopted during April, 1931, by the voters of the municipality. It appears that there was strenuous objection to the creation of the offices on the part of the “reform faction” and that at that time they promised, if put in power, to abolish the offices in the interest of economy.

The offices were originally created by ordinances and the individual appointments made by resolution. The offices were abolished by ordinances passed June 3d, 1931, and on the same day resolutions were passed declaring the offices vacant. Under the terms of the Walsh act the ordinances did not become effective until ten days after publication, or in this case on June 15th.

Prosecutors contend under their first point that the resolutions were of no effect as of June 3d because the ordinances could not become effective until June 15th. However, the case of Anderson v. Weehawken, 97 N. J. L. 371; 118 Atl. Rep. 208, is authority for the proposition that a fireman’s position may be abolished by resolution since his appointment was accomplished in the same way. We think the procedure was proper, namely, the abolition of the office as to each incumbent by resolution, and then the complete abolition of the position by ordinance in order that no other might be appointed.

2. It is argued by prosecutors that the resolutions could not be adopted by the whole board of commissioners, hut came within the jurisdiction of the director of public safety alone. If there he any merit in this contention, there are two answers to it. First, the abolition of a large group of offices was not a matter having to do with the internal affairs of the department but was rather a matter of general concern coming within the jurisdiction of the whoJe board. And second, the proceedings had to do with the organization of a new board and a new township government and therefore comes within the rule in Seaman v. Strollo, 105 N. J. L. 570; 146 Atl. Rep. 331, to the effect that at the time of organization the whole board has jurisdiction of matters which thereafter may be within the exclusive jurisdiction of the head of one department.

3. The prosecutors’ principal contention is that the alleged motive of economy was a false one, and that the real purpose of the removal was political. There is little, if any, evidence to support this claim, and plenty of evidence to sustain the good faith of the commissioners. A large saving was effected. The fact that expenses were increased in some other departments is no evidence of improper motive in the abolition of these offices. A great deal of testimony was introduced to show that these additional policemen and firemen were desirable or necessary to properly protect life and property. There is no doubt the additional protection may be preferable, if it were not a burden on the taxpayers. However, the question of curtailing the forces in the interest of economy was one within the discretion of the governing body and this court cannot review that action.

The writs of certiorari are dismissed, with costs.


author: Eldkedge, C. C. J.

text:
    SAMUEL R. FRANKLIN, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF CORA M. FRANKLIN, DECEASED, PLAINTIFF, v. EMMETT C. ROWAN AND ISAAC HARRIS, DEFENDANTS.
    Decided August 3, 1932.
    Before Henry H. Eldredge, Circuit Court Judge.
    For the plaintiff, Boyle & Archer.

    For the defendants, Orlando & Kisselman.

   Eldkedge, C. C. J.

This matter comes before the court on a rule to show cause why a verdict of $10,000 awarded the plaintiff as administrator ad prosequendum of the estate of his wife should not be set aside and a new trial granted.

Cora Franklin, wife of Samuel Franklin, was killed in a collision between the defendant Harris’ car and the car in which she was riding September 1st, 1930, on a road leading from Freehold to Ocean Grove. At the trial of the cause a verdict was rendered in favor of Samuel Franklin, administrator as aforesaid, against the defendant Isaac Harris. Counsel for the defendant now seeks to set aside the verdict on the ground that it is excessive.

The persons surviving the decedent and entitled to recovery under our Death act consisted of the husband, who was fifty-seven years of age at the date of the death of his wife, and four children, namely: Charles, twenty-nine years of age; Jessie, twenty-four years old; Josh, twenty, and Helen, nineteen. The wife, at the date of her death, was fifty-six years of age, and according to the tables had an expectancy of life of sixteen years to seventy-two years. The husband, being one year older, would have approximately the same expectancy. Some doubt as to the correctness of the tables as applied to the decedent was created by the testimony of Dr. Jack, who had been Mrs. Franklin’s physician. Charles Franklin, the eldest son, is a supervisor of schools in New York state, and married; Jessie Franklin, the second child, was self-supporting and lived at home part of the time; Josh Franklin had a position in New York and was self-supporting. Helen Franklin was attending college.

In the light of the above facts it would seem that any pecuniary loss to the two sons must be slight, and yet the jury is not compelled to disregard them entirely. The loss to the two daughters who lived at home at least part of the time, and the loss to the husband deserve careful consideration and the jury would be justified in finding them substantial.

The actual proven loss to the husband would be approximately $9 per week, allowing $7 for hire of help and $2 for laundry. The cost of boarding the help, we think, can be disregarded, for Mrs. Franklin, had she lived, would have received the husband’s support. This figure, multiplied by the expectancy of life, would approximate the sum of $7,800, which, of course, would have to be reduced to its present cash value. With these facts and figures in mind, it would appear to the court that the amount awarded is somewhat excessive.

The case of Slifer v. Janoski, 8 N. J. Mis. R. 928; 152 Atl. Rep. 444, appears to the court to be particularly helpful in deciding the present matter. In that case a woman fifty-four years of age left her surviving a husband sixty-one years old and a son nineteen years old. The Supreme Court reduced the verdict from $10,000 to $6,000.

Counsel for the plaintiff. has argued that in Slifer case there was no proof of pecuniary loss beyond that incident to the relationship of husband and wife and mother and son. The court said, however, that the jury could anticipate her care of the household and make its award accordingly. The only proven pecuniary loss in the instant case is that incident to the care of the household and hence it would seem to follow that what was proven in the present case was anticipated in the Slifer case.

The age of the boy in the Slifer case is the same as the youngest child in the present case, and the average age of the husband and wife in the Slifer case is fifty-seven and one-half years, while the average age in the present case is fifty-six and one-half years.

With this comparison before us, and bearing in mind Dr. Jack’s testimony that the decedent’s health might deprive her of her normal expectancy of life, the court is of the opinion that the verdict should be reduced to $7,500.

If the plaintiff will accept that amount the rule will be discharged; otherwise it will be made absolute.