text:
    DORSEY MOTORS, INCORPORATED, A CORPORATION, PROSECUTOR, v. CLARENCE R. DAVIS, BUILDING INSPECTOR OF THE TOWNSHIP OF WOODBRIDGE, A MUNICIPAL CORPORATION, RESPONDENT. DORSEY MOTORS, INCORPORATED, A CORPORATION, PROSECUTOR, v. THE BOARD OF ADJUSTMENT OF WOODBRIDGE TOWNSHIP, A MUNICIPAL CORPORATION, RESPONDENT. DORSEY MOTORS, INCORPORATED, A CORPORATION, PROSECUTOR, v. THE MAYOR, THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF WOODBRIDGE AND THE TOWNSHIP OF WOODBRIDGE, A MUNICIPAL CORPORATION, RESPONDENTS.
    Submitted July 24, 1935
    Decided August 13, 1935.
    Heard by Justice Case, sitting alone, pursuant to the statute.
    For the prosecutor, Harry 8. Medinets.

    Por the .respondents, Leon E. McElroy.

   Case, J.

There are three writs of certiorari. The ñrst brings up the action of Clarence E. Davis, building inspector of the township of Woodbridge, in refusing prosecutor’s application for a building permit; the second, a resolution adopted by the board of adjustment, on appeal, recommending to the township committee that the latter refuse the application; and the third, a resolution by the township committee denying the application. Eespondents first challenge the pertinency of the writs and contend that there is nothing before the court for review.

In Union County Development Co. v. Kaltenbach, 3 N. J. Mis. R. 341; 128 Atl. Rep. 396, it was held that mandamus was a proper remedy to compel affirmative action by a building inspector who had refused a permit, and it was said that certiorari could not accomplish anything inasmuch as there was nothing before the court to be reviewed. To the same effect are the following decisions rendered simultaneously therewith or soon thereafter: Falco v. Kaltenbach, 3 N. J. Mis. R. 333; 128 Atl. Rep. 394; State v. Dowling, 3 N. J. Mis. R. 338; 128 Atl. Rep. 395; Builders Realty Co. v. Bigelow, 3 N. J. Mis. R. 540; 128 Atl. Rep. 887; affirmed, 102 N. J. L. 433; 131 Atl. Rep. 888; Williams v. Gage, 3 N. J. Mis. R. 1095; 130 Atl. Rep. 721. But see, also, in the light of the circumstances hereinafter mentioned, Steinberg v. Bigelow, 3 N. J. Mis. R. 1228; 131 Atl. Rep. 114, and E. & M. Land Co. v. Newark, 4 N. J. Mis. R. 467; 133 Atl. Rep. 413; also Chancellor Development Corp. v. Newark, 3 N. J. Mis. R. 1231; 131 Atl. Rep. 116. Later the zoning amendment and the' enabling statute of 1928 were passed, and the practice by property owners dissatisfied with the findings of municipal officials or bodies has since been diverse. In Steward v. Trenton, 9 N. J. Mis. R. 1100; 156 Atl. Rep. 844, and particularly in Mulleady v. Trenton, 9 N. J. Mis. R. 1102; 156 Atl. Rep. 843, this court held that a writ of certiorari should properly issue to. review the action of the zoning board in refusing to grant to the prosecutors a desired building permit and made quite clear that, in the opinion of the court, the compliance or non-compliance of a building code with the Zoning Enabling act and the reasonableness of a pertinent ordinance could be considered under a writ so issued. In Deborah Jewish, &c., Society v. State Board of Health, 7 N. J. Mis. R. 418; 145 Atl. Rep. 870, not a zoning case but involving a similar legal principle, it was held that it was the function of a writ of certiorari and not of a writ of mandamus to review the legality of the refusal of the state board of health to grant a permit to erect and maintain a hospital, and mandamus was denied; and certiorari was successfully prosecuted in Sheffield Farms Co., Inc., v. Seaman, 114 N. J. L. 455; 177 Atl. Rep. 372, to set aside the refusal of a health department to issue a milk-selling permit, and in Linden Methodist Episcopal Church v. Linden, 113 N. J. L. 188; 173 Atl. Rep. 593, to set aside a decision of a board of adjustment and to review an ordinance. In DeVito v. Pearsall, &c., Borough of Rumson, 115 N. J. L. 323, the writ of certiorari brought up, without objection as to procedure, the borough zoning ordinance, the refusal of the borough building inspector and, on appeal, of the board of adjustment to grant a permit. In Gabrielson v. Borough of Glen Ridge, 13 N. J. Mis. R. 142; 176 Atl. Rep. 676, the application was for certiorari to review and mandamus to compel.

The writs in the instant case do not, in terms, bring up the zoning ordinance. But the ordinance is, by stipulation, in proof before me. The writs were allowed following rules to show cause why they should not issue. No objection was voiced by the respondents on the ground now under discussion, and it was my distinct impression from the presentations by both attorneys then made that certiorari would be an acceptable means of resolving the doubt as to whether the borough zoning ordinance was or was not valid in setting up as a residence zone that portion of Amboy avenue in which prosecutor’s property is located and that it was desirable that such doubt should be determined.

The reasons filed by the prosecutor fully set up the alleged defects of the ordinance. The prosecutor, in reliance upon the procedure so begun upon notice, has gone to the expense of preparing his case. The facts, ample in volume, are in proof. The petition of appeal to the board of adjustment was upon the specific and expressed ground that the ordinance was, in its application to prosecutor’s property, arbitrary and unreasonable and without substantial relation to any of the purposes authorized by the statute, and it is stipulated that the decision of the board “was based solely upon the circumstance that it would be a non-conforming use in ail area zoned as Class ‘X’ Residential, and would affect the value of existing residences on Amboy Avenue and Green Street.” The question of the ordinance and its validity in so far as concerns the Ross street-Grove avenue exception has been the outstanding dispute throughout. The meritorious question is argued in the briefs; not only that, but respondents’ brief concedes that it was fully presented below by the prosecutor. All of the parties, including the municipality, are in court and have been heard on the merits. By virtue of the circumstances under- which the case has come in I feel that under the more recent cases I should declare a finding on whether or not so much of the ordinance as places prosecutor’s property in a residence zone is a reasonable and lawful exercise of the municipal legislative power.

Prosecutor’s property is located at the southwest corner of Amboy avenue and Green street and has frontages of approximately one hundred and fifty feet on Amboy avenue and ninety-eight feet on Green street. It is a stipulated fact that “Amboy avenue in its entirety is part of state highway route 4, one of the most traversed [traveled?] highways of the Slate of New Jersey, bearing the brunt of traffic between the metropolitan area, including Hew York City and north Jersey. and the shore points, with automobiles, motor buses and trucks creating the inevitable noises that are concomitant with the operation of such vehicles on the highway; that whatever residences located along such road on Amboy avenue are so situated that the people within them are constantly subjected to such traffic noises; that such conditions existed at the times of the construction of such dwelling houses and of the adoption of the zoning ordinance.” The records of the state, highway commission show that Amboy avenue has an average daily volume throughout the year of sixteen thousand one hundred and thirteen vehicles. At the intersection with Green street there is an automatic traffic signal which results in almost constant stopping and starting of vehicles at that point. The ordinance zones the entire southerly end of Amboy avenue for business and light and heavy industrial uses except the distance from Ross street to Grove avenue, about one thousand six hundred and fifty feet, which is zoned as class “A” residential. Prosecutor’s property is, roughly, at the center of that excepted area. The character of this area is substantially the same as that of the rest of Amboy avenue from which it has been set off. It is a stipulated fact that “the plans and specifications submitted to the building inspector of the township of Woodbridge, covering said proposed structure complies with all rules, regulations, ordinances and building codes of the township of Woodbridge, now in force, at the time of the filing thereof,” and that the application complied with all requirements.

The parties have stipulated that the testimony before the board of adjustment was substantially, in part, as follows: “That at the time of the adoption of said zoning ordinance and since that time, there were and still are located and used in that part of Amboy avenue set aside for Class CA’ Residential purposes by said zoning ordinances the following business properties and uses:

“1. Parkway Garage with three gas tanks in front.

“2. Eak’s Welding and Radiator Shop with second-hand motor vehicles in front thereof.

“3. Franklin Soda Shop.

“4. Alice LaReine Dressmaking Shop.

“5. Greenhouse and flower shop.

“6. Furniture and pottery store.

“7. Boarding house.

“8. The Greát Atlantic and Pacific Tea Store.

“9. Woodbridge Fur Shop.

“10. Candy store.

“11. Grocery store.

“12. Club rooms.

“13. Shoe repair shop.

“14. Two-car frame garage facing street.

“15. One-story frame roadstand; that within the said area set aside as Class ‘A’ Residential zone, there are thirteen one-family residences which conform to the ordinance.” I find, from the proofs, the assertions so made to be the fact. Green street is a residence street, but Amboy avenue throughout the entire distance set off for residence purposes bears the unmistakable signs of a surrender to business uses that is almost inevitable under the prevailing conditions.

The zoning ordinance was adopted in 1931. Since then not a single residence has been constructed within the zoned area. An expert employed as consultant by the township authorities in the preparation of the zoning ordinance and who, it is stipulated, “is a nationally recognized authority on zoning and city planning,” advised in the original formation of the ordinance that Amboy avenue be zoned as a business district without exception. His deposition taken in preparation for this argument states:

“To change that portion of Amboy Avenue between Boss Street and Grove Avenue from Class ‘A’ residence zone to business zone, will in nowise do violence to the zoning plan as a whole in Woodbridge. It merely involves the restoration of this section to the position it occupied in the original tentative zoning plan. This plan was devised in the light of experience obtained during many years in zoning numerous municipalities in various parts of the country. There was no practical reason for changing the original decision as to the appropriateness of a business designation in this area. A business designation for the frontage of this portion of the street is the only way in which the zoning plan will do justice to the property owners immediately affected in this area.”

The only conclusion to which I can come under the uncontroverted facts is that the exclusion of ordinary business from the disputed portion of Amboy avenue was an unreasonable and capricious act on the part of the township committee. Conceding to the municipality an authority to create residence zones and, with reasonable regard for an actually existing status, to shield those areas from the intrusion of commercial structures (DeVito v. Pearsall, &c., Borough of Rumson, supra), nevertheless the municipality could not by a word change the cold facts. It may not arbitrarily and without justification interfere with the legitimate use of private property. Gabrielson v. Glen Ridge, supra. Eespondents do not seriously dispute the business aspect of xkmboy avenue. Their argument is built up largely on the fact, which I think is well sustained, that Green street is a residence street. The controlling thoroughfare in this instance, however, is Amboy avenue. It is unfortunate that a residence street crosses that busy and business thoroughfare; but it does cross and must suffer whatever inconvenience results therefrom.

There was no laches on the part of the prosecutor. When he desired to improve his plot, he sought a permit to carry out the improvement and, on denial, moved speedily from one municipal body to another and thence to this court. Had there been laches respondents should have raised the objection on the return of the rule. Weissinger v. Mayor, &c., Teaneck, 10 N. J. Mis. R. 1093; 162 Atl. Rep. 400.

It results that so much of the zoning ordinance as takes the prescribed area out of the business zone is invalid. The determinations under review, clearly based on that ordinance provision, should be set aside; with costs against the township.


source: Caselaw Access Project

author:
John C. Wegnek,
      Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH KROMLEY, PETITIONER, v. BOARD OF EDUCATION OF THE BOROUGH OF SOUTH RIVER, NEW JERSEY, RESPONDENT.
    Decided August 9, 1935.
    For the petitioner, Smith & Dickerson (by George Lewis Smith).

    For the respondent, Avidan Avidan.

   The question in the case sub judice is whether or not the petitioner met with an accident arising out of and in the course of his employment.

The facts are undisputed. The petitioner, a janitor in one of the public schools of the borough of South Elver, on the night in question went to church with his wife, and after the church services it was necessary that he pass the school. The night was extremely cold, and he decided to check up on the fires, which was his duty. He proceeded with his wife to June street where he left his wife, who went to his sister’s home to a party, while he proceeded home to get the keys for the school which were in his working clothes. On the way to his home and close thereby, he fell, sustaining an injury. He subsequently obtained the keys, went to the school, checked the fires, and then went to his sister’s home where it was determined the injury needed the attention of a doctor.

At what time in petitioner’s travels, after he left the church, separated from his wife, returned to his home and obtained the keys, returned to the school and then proceeded to his sister’s home, did the petitioner place himself within the course of his employment?

In the course of employment means in the service of the master. Shoffler v. Lehigh Valley Coal Co. (Penna. Sup. Ct., 1927), 139 Atl. Rep. 192.

Under the English cases the rule seems to be now settled where the risk is one common to all mankind it does not arise out of the employment. The exception to the rule is obvious. That exception is when the employment is such that it requires the employe, without any choice on his part, to submit to a risk of highway accidents, then the accident will arise out of the employment provided the employe is in the co.urse of his employment.

The New Jersey cases follow the English ruling.

Stress is laid upon Terlecki v. Strauss, 85 N. J. L. 454; 89 Atl. Rep. 1023, by both attorneys in their briefs. Numerous cases are cited. I, personalty, have made a study of not alone the cases covering accidents on highways and sidewalks covering this -state, but the decisions of the various courts of the other states.

To cite these various cases would consume much space, but when fully analyzed I feel the decisions, the vast majority of them, are reflected in the dicta of Mr. Justice Swaj'ze, on page 455 of the Terlicki v. Strauss case which states “The question whether the accident arose out of the employment is perhaps more doubtful. The employment was not indeed the proximate cause of the accident, but it was a cause in the sense that but for the employment the accident would not have happened. The employment was one of the necessary antecedents to the accident.”

The United States Supreme Court has rendered decisions which to some degree are referable to the situation covering public highway accidents. Cudahy Packing Co. v. Parramore, 263 U. S. 418; Bountiful Brick Co. v. Giles, 276 U. S. 154.

This later case cites the Cudahy Packing Co. v. Parramore ease. In part it states as follows:

“The contention here, shortly stated, is that the accident was one which occurred off the premises of the employer on a public road, outside of the hours of employment, and while the employe was not engaged in any business of the employer; that it was not the result of any industrial risk but arose from a common peril to which the public generally was exposed; and that consequently liability is imposed arbitrarily and capriciously. It may be assumed that when an accident is in no manner related to the employment, an attempt to make the employment liable would be so clearly unreasonable and arbitrary as to subject it to the ban of the constitution; but where the accident has any such relation we should be cautious about declaring a state statute creating liability against an employer invalid upon that ground.

“* * * The fact that the accident happened upon a public road or at a railroad crossing and that the danger is one to which the general public is likewise exposed is not conclusive against the existence of such casual relationship, if the danger be one to which the employe, by reason of and in connection with the employment, is subjected peculiarly or to an abnormal degree.”

In the case of Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, it was held that an accident arises “in the course of employment” if it occurs while the employe is doing what a man so employed may reasonably do in the time which he is reasonably employed and at a place where he may reasonably be during that time, and it arises “out of” the employment when it is something the risk of which may have been contemplated by a reasonable person entering the employment or incidental thereto.

In arriving at the same conclusion, Buckley, L. J., in Fitzgerald v. Clarke & Son, 2 K. B. 796, states the words “out of” point to the origin and cause of the accident'; the words “in the course of” to the time, place, and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident was conveyed by the words “out of” involve the idea that the accident is in some sense due to the employment. It must be an accident resulting from a risk reasonably incident to the employment.

That the petitioner had no thought of visiting the school is evidenced by the fact that he did not bring his key. He went to church with his wife, he left with her to go to his sister’s home, the night was extremely cold, he concluded to look after the fires in the school, a duty imposed upon him by his employment. He left his wife at the intersection of William and June streets, he proceeded along June street to get his keys, the accident occurred but notwithstanding same, he proceeded to his home for the keys and subsequently attended to the fires at the school. The petitioner was doing what he was hired to do and doing same for the best interest of the employer. True it arose out of an emergency. Disregard of same would perhaps have imperiled the property of the respondent when he was injured by a peril of the street, his duty to his employer took him to that street though the occasion may have been of a rare and exceptional one.

I do hereby find, and determine that the petitioner has sustained the burden of proving that the accident arose out of and in the course of his employment.

Hi Hi Hi Hi Hi ❖ Hi

John C. Wegnek,

Deputy Commissioner.


author: Bigelow, Y. C.

text:
    Borough of Park Ridge, complainant, v. John Bellavigna and others, defendants.
    [Decided June 6th, 1935.]

      Mr. Charles Jones, for the complainant.

      Mr. John L. Deeney, for the defendant Kotlim, Incorporated.

      Messrs. Hart ,& Vanderwart, for the defendant Pascack Lumber Company.
   Bigelow, Y. C.

This is a suit to foreclose a tax title held by the municipality. On December llth, 1934, before the bill was filed, one of the defendants attempted to redeem by tender to the tax collector. The sum tendered was not sufficient to cover the fees and expenses specified in section 44 of the Tax Sale revision. Cum. Supp. Comp. Stat. 1911-1924 p. 3535, as amended P. L. 1928 p. 248; Cum. Supp. Comp. Stat. 1930 § 208-444a(47) The only question presented is whether these items were payable.

Section 45 of the statute (Cum. Supp. Comp. Stat. 1924 § 208-444a(48) provides:

"No fees or expenses incurred as aforesaid shall be collectible unless the holder of the tax title shall have made and filed with such collecting officer, affidavits showing the amount or amounts of such expenses actually disbursed or incurred, affidavits of service including copies of the notices served, and certificates of the searches made in the form of an abstract of title covering a period of not less than 20 years.”

In the spring of 1934, the borough had entered into an agreement with one DeRees, whereby the latter agreed to collect tax sale liens for the borough. DeRees was thereby “empowered to collect the amount due on said tax certificates and subsequent liens in full with interest and costs” and was given “complete charge of the collection of such liens.” His compensation, under the agreement, was the difference between what he might legally collect and the net amount of the taxes and assessments.

In November, DeRees searched the title of the premises in question and made up an abstract of title. One copy of the abstract, which is dated December 5th, 1934, remained at the office of DeRees in Hackensack from that time on. He testified that within one or two days thereafter, he filed another copy of the abstract with the collector of taxes. But he did not testify from a distinct memory of the occurrence; rather, he relied on his uniform practice in conducting these matters. Certainly, at some time or other, such a copy reached the collector’s office, for it was produced by the latter at the hearing. The collector testified that he did not know when it was brought to his office.

When the defendant made the tender, the collector told him that no abstract of title or affidavits of expenses or service had been filed with him and that he did not know the amount due on the tax sale certificate and he referred the defendant to DeRees. On this state of the proofs I find, as a fact, that these papers had not been filed in the collector’s office by the time of the tender on December 17th.

Counsel for the borough contends, first, that section 45 has no application when the holder of the tax title is a municipality; and second, that DeRees, by virtue of his agreement with the borough was the “collecting officer” mentioned in the section. In my opinion, neither of these positions is sound.

The lien does not include any items “except such as are definitely and clearly provided for” by the statute. Fitzsimmons v. Bonavila, 77 N. J. Eq. 277; 76 Atl. Rep. 313. The only authority for the inclusion of search fees and the like is found in section 44. Cum. Supp. Comp. Stat. 1924 § 208-444a(47). This section, as originally enacted, provided that “the holder of such tax title, upon compliance with the following section, shall be entitled” to search fees, &e. As amended bjr P. L. 1928 p. 248 (Cum. Supp. Comp. Stat. 1930 § 208-444a (47), it requires “compliance with the provisions of the act of which this act is an amendment.” Those provisions include section 45. Cum. Supp. Comp. Stat. 1924 § 208-444a(48). There is no general grant of the right to the fees but only a grant conditioned upon compliance with section 45. A municipality cannot have the benefit of the one section, without the burden of the other.

One purpose of section 45 is to require the filing with the collecting officer of a record which will enable the collector, and equally the person desiring to redeem, to calculate the amount of the lien. This is as necessary when the tax title is held by the municipality as when it is not so held.

The expression “such collecting officer” in section 45 means the same officer to whom is payable the amount required for redemption. This payment should be made “to the collector or to the collecting officer of delinquent taxes on lands of the municipality where the land is situate.” Section 37. Cum. Supp. Comp. Stat. 1924 § 208-444a(40) ■ Such collecting officer is the one who executes a certificate of redemption which may be recorded with the county clerk or register. Section 38. Cum. Supp. Comp. Stat. 1924 § 208-444a(41) • He pays over to the holder of the tax title the redemption moneys. Section 40. Cum. Supp. Comp. Stat. 1924 § 208-444a(43). This officer may be designated collector of taxes, or tax receiver, or collector of arrears of taxes, or comptroller, or treasurer, or by some other title. But by whatever title he may be called, the collecting officer with whom the abstract of title must be filed, is the officer on whom the law casts the duty of collecting delinquent land taxes in the particular municipality.

Mr. DeRees does not appear to have been an officer of any kind of the borough of Park Ridge. The governing body of the borough, by ordinance, resolution, or otherwise, did not create an office and fill it by the appointment of Mr. DeRees. He was a mere contractor.

“An office is a place created or at least recognized by the law of the state and to which certain permanent public duties are assigned, either by the law itself or by regulations adopted under .authority of law.” Stewart v. Freeholders of Hudson, 61 N. J. Law 117; 38 Atl. Rep. 842. The duties which Mr. DeRees has undertaken, are not assigned to him either by the law of New Jersey or by regulations adopted under authority of law by the borough. His post is not a permanent one, but is merely intended to last for the term of his contract. An appointment to public office and acceptance thereof does not constitute a contract. Hillel v. Borough of Edgewater, 106 N. J. Law 481; 150 Atl. Rep. 385. “We think the defendant’s position lacked the essentials of an office and was merely that of a contractor. In order to ascertain the nature of his duties, their duration and his compensation, recourse must be had not to any law, nor to any regulation adopted by authority of law, but only to his contract with the commissioners. 'In such circumstances, an office does not exist.” State v. Broome, 61 N. J. Law 115; 38 Atl. Rep. 841.

It follows that the search fees and other such expenses were not collectible at the time the tender was made and hence the tender was sufficient in amount.


author: Per Curiam.

text:
    JOSEPH GRAY, ADMINISTRATOR AD PROSEQUENDUM, ETC., PLAINTIFF-RESPONDENT, v. SHEFFIELD FARMS COMPANY, INCORPORATED, ET AL., DEFENDANTS-APPELLANTS.
    Argued May 9, 1935
    Decided August 20, 1935.
    Before Brogan, Chiei? Justice, and Justices Lloyd and Donges.
    Por the appellants, Autenrieih & Worlendyke.

    Por the respondent, Andrew 0. Witireich.

   Per Curiam.

This is an appeal from a judgment of the Hudson County Court of Common Pleas entered upon the verdict of a jury. Plaintiff sued as administrator ad prosequendum of the estate of his wife, who was killed in a collision between an automobile owned and driven by the plaintiff and a milk wagon of the defendant Sheffield Parms Company, Incorporated, driven bj’ the other defendant, Walter Krug.

The accident occurred around three a. m. on November 19th, 1933. Plaintiff and his wife were in his car proceeding northerly on Prospect avenue, Kidgefield, when suddenly, according to plaintiff, the milk wagon, which had been proceeding southerly on this street, turned to its left across the street in front of plaintiff. He testified that the driver was not on the milk wagon at the time. No more extended statement of the facts seem necessary.

The first point is that it was error to permit two witnesses to testify to having observed the horse and wagon in question left unattended on prior occasions and as to the behavior of the horse on those occasions. This line of examination was permitted for the purpose of showing that the horse had a tendency to wander when left unattended and that there was knowledge of this trait on the part of the defendant. Appellants in their brief argue that this amounted to permitting evidence of other facts of negligence in contravention of Quellmalz v. Atlantic Coast Electric Railway Co., 94 N. J. L. 474; 110 Atl. Rep. 914, and other cases, in that the leaving of the horse untied was charged as negligence and testimony of these acts was evidence from which the jury might believe, that since the horse had been left alone before, it was alone on this occasion. However, it was not admitted for that purpose and the trial judge specifically said to the jury on each occasion that they were not to consider it for that purpose, but merely to consider whether there was knowledge on the part of defendants that the horse did have a tendency to roam about the highway in a manner that might be dangerous to others. One witness said he had seen the horse move up out of the gutter to the center of the road, apparently not liking to stand on the sharp incline of the street, and the other said he had seen the horse move alone from one side of the street to the other.

Such evidence is competent and material. In Marshall v. Suburban Dairy Co., 96 N. J. L. 81; 114 Atl. Rep. 750, this court, in determining a rule to show cause, set aside a verdict for the defendant because of evidence that a horse drawing a milk wagon had a tendency to start before the driver reached the wagon and a tendency not to proceed in a straight line. It does not appear that there was any objection in that case to the admission of the testimony, but at any rate the Supreme Court considered it as competent and set aside the verdict.

The second point is directed to the following remarks of the trial judge in the course of the cross-examination of the witness Schmidt:

“In order to eliminate any ambiguity 1 am going to ask this question point blank—the other day I was trying a case in which an element of this sort crept into the case and after the verdict was brought in I was very much surprised and I interrogated one of the jurors and he said he thought all the people were drunk—and I am going to ask this question point blank: Was this man intoxicated, the plaintiff in this suit?”

The witness then answered no. The incident occurred after counsel had elicited from Schmidt, who was a bartender at the club where plaintiff and his wi fe had spent the evening, a statement that they had been served beer.

The recent case of Pleva v. Goodzeil, 114 N. J. L. 399; 176 Atl. Rep. 706, is relied on, but in that case the remarks concerning a prior case dealt with “what some juror in another case had said in the jury room, together with a ruling on the eligibility of a certain class of juror.” The instant case seems quite different. Furthermore, in the Pleva case counsel (who is also counsel for appellants here) asked for a mistrial and it was because of the refusal of this motion that the reversal was ordered. In the instant case an exception was taken but the court was not asked to do anything to correct the situation. It seems the remarks were quite harmless because the accusation of drunkenness did not enter any further in the case.

The next point is that the evidence “failed to support an inference” of negligence. The argument seems to be directed toward the weight of the evidence. It surely cannot be said that there was no evidence at all to go to the jury. Plaintiff’s testimony and the testimony that the driver was not on the wagon raised a jury question as to negligence, and the case submitted was within the pleadings.

The last point deals with a statement in the court’s charge to which no exception was taken and it cannot be considered.

The judgment is affirmed, with costs.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    THE BUSINESS MEN’S BUILDING AND LOAN ASSOCIATION (OF JERSEY CITY), A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. PHILLIP TUMULTY ET AL., DEFENDANTS.
    Decided September 3, 1935.
    For the plaintiff, Carey é Lane.

    For the defendants, Alfred R. Becker.

   Brown, C. C. J.

The above suit was brought by the plaintiff to recover on a bond for a deficiency arising after the foreclosure of a mortgage. The answer admits the making of the bond and mortgage and a decree and sale in the foreclosure suit. A denial is alleged of anything being due on the bond; that suit was not brought within the statutory period and a separate defense alleging that proper notice of the action was not filed in the register’s office of Hudson county. The plaintiff moves to strike the answer and separate defense upon the ground “that the same are sham and/or frivolous and do not set forth a valid defense.” The motion is in the nature of a general demurrer and therefore if any part of the answer contains a valid defense the motion should fail. A pleading cannot be both sham and frivolous. It is either sham or frivolous. National Surety Co. v. Mulligan, 105 N. J. L. 336 (at p. 338); 146 Atl. Rep. 372. An objection that a pleading does not state a cause of action is not sufficient. Dunn v. Chernewski, 101 N. J. L. 27; 127 Atl. Rep. 338. By the same parity of reasoning to say that a pleading does not set forth a defense is not sufficient. The practice of using the conjunction “and” and the disjunctive “or” in objecting to a pleading deserves to be discouraged. “And” means added to; together with; joined with. In the case of the National Surety Co v. Mulligan, supra, it was clearly decided by our Court of Errors and Appeals that a pleading could not be both sham and frivolous The use of the disjunctive “or” does not better the objection. “Or” means either; else; otherwise. The same objection applies to the use of this word as to the word “and” in stating an objection to a pleading. The use of those words, as used on the motion in this case, indicates an uncertain and dubious ground of objection. The objection is stated with an undetermined opinion inclined to disbelieve and affected with doubt.

In the first separate defense of the answer the defendants allege that the plaintiff failed to file in the register’s office notice of the proposed action as required by statute. The parties agree that before action was brought a notice was filed. The words used in the notice were “Notice is hereby given pursuant to the directions of the statute in such case made and provided to all whom it doth or may concern of a pendency of a suit in the Hudson County Circuit Court, as above entitled.” The statute (Comp. Stat. 1910, p. 3423) provides in part: “No judgment shall be entered * * * in any action on said bond unless * * * prior to the beginning of such action * * * there shall be filed in the office of * * * the Register of Deeds and Mortgages of the County in which the lands described in the mortgage given with such bond is situate, a written notice of the proposed * * * action setting forth the Court in which it is proposed to * * * begin such action * * The notice filed by the plaintiff was to the effect “of a pendency of a suit.” That is the suit was already brought. It was pending in this court. The fact is the suit was not pending at the time notice was filed. The statute requires the notice to be filed before action is commenced and should refer to a proposed suit. One that is in contemplation or deliberation and not a suit that is pending and actually in existence. The notice filed by the plaintiff does not comply with the statutory requirements. The statute is mandatory and should be strictly followed. Neu v. Rogge, 88 N. J. L. 335 (at p. 340); 95 Atl. Rep. 632. The motion to strike the answer and enter summary judgment will be denied. The defendants by their cross-motion seek a judgment of nonsuit because of the insufficiency of the notice filed. When motions are addressed to pleadings in a cause they should be made under rule 30 or 40 of the Supreme Court depending upon the nature of the motion. The distinction between those rules is referred to in Great American Indemnity Co. v. Gronowicz, 6 N. J. Mis. R. 821; 142 Atl. Rep. 897; Wright v. Kroydon Co., 9 N. J. Mis. R. 287; 154 Atl. Rep. 195; Szalkowski v. C. S. Osborne Co., 9 N. J. Mis. R. 538; 154 Atl. Rep. 611. The defendant in the case sub judice did not address a motion to the complaint but elected to answer and failed to reserve his objection in point of law so as to make it the subject-matter of a motion under rule 40. The defendants having made their election shall be thus held and the motion for nonsuit will be denied. No costs will be allowed to either party on those motions.


author:
John C. Wegnee,
      Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HELEN PIKUS, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF STANLEY PIKUS, DECEASED, PETITIONER, v. AMERICAN FUR DYEING COMPANY, RESPONDENT.
    Decided September 3, 1935.
    For the petitioner, Leuly As Moser (George P. Moser, of counsel).
    For the respondent, Carey A Lane (David A. Pindar, of counsel).
   During the mid-afternoon of said August 1st, 1933, the decedent became ill, thereafter unconscious, and removed to the North Hudson Hospital, Weehawken, Hudson county, New Jersey, where decedent died about five-ten p. m. of the day aforseaid.

That while the claim of the cause of death of the decedent was heat prostration, when the temperature on the said August 1st, 1933, as shown by the monthly meteorological summary", accepted in evidence in this cause, at the time of the decedent’s alleged accident was between ninety-two degrees and ninety-five degrees Fahrenheit, there was no proof submitted as to the heat temperature at the location where the decedent was employed at the time of the alleged accident.

That the condition of the decedent at the time of the alleged accident was diagnosed as heat prostration, but such diagnosis was uncertain and not positive for a conclusion as to the cause of decedent’s death.

That at the location where the decedent worked at the time of the alleged accident, due to the ventilation surrounding said location, the temperature there was a few degrees cooler than the temperature existing in the atmosphere and outside of the premises of respondent, as shown in the monthly meteorological summary aforesaid. There being no proof that in his employment the decedent was subjected to a greater exposure than that to which persons generally in that locality were exposed, decedent’s dependents are entitled to no compensation under the doctrine pronounced in the case of Kauffeld v. G. F. Pfund & Sons, 97 N. J. L. 335; 116 Atl. Rep. 487.

That the appearance of the decedent at the time of the alleged occurrence varied from and was contrary to the general diagnostic appearance of a person afflicted with a heat stroke, as stated by expert medical testimony.

That there did not exist at the time and place of the alleged occurrence any artificial heat which would tend to increase the heat condition existing at the said location, and that there was no undue exposure to heat at any time.

That the decedent was not at the time and place of the alleged occurrence exposed to or subjected to any greater exposure to heat than any other person in the location of the occurrence herein on the said August 1st, 1933.

$$$$$$$

That the petitioner has failed to sustain the required and necessary burden of proof that the decedent’s death resulted from ah accident and arose out of and in the course of his employment by the respondent.

John C. Wegnee,

Referee.


author:
John G. Wegneb,
      Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILBUR GILDERSLEIVE, PETITIONER, v. BURLINGTON TEXTILE MILLS, INCORPORATED, RESPONDENT.
    Decided September 3, 1935.
    For the petitioner, Josephson & Josephson.

    For the respondent, Horace G. Brown.

   íjí % íji tjí ij{

This matter came on for a hearing before me on the question of liability, it being stipulated that the question of the extent of the disability shall be determined at a later hearing in the event that the question of liability is decided in favor of the petitioner.

With regard to this claim there is no dispute as to the occurrence of the accident on November 8th, 1934, and that the rate of wages to be paid was $22 per week. These facts being agreed npon by the petitioner and respondent.

The petitioner set forth in his petition, and supported by his testimony at the hearing, that he was engaged by the respondent to perform various kinds of work, in and about the respondent’s factory premises. That the respondent would advise him what he wanted done, furnish him with all the necessary tools and materials, and that in his absence the superintendent of the respondent would take care of these matters. He further alleged and testified that he was to work eight hours per day, five and one-half days per week, and be paid for the services rendered at the rate of fifty cents an hour, which would be the sum of $22 per week. That in pursuance to the above arrangements, he commenced the employment, and was advised by the respondent what he should do, which work he carried on until the date of the accident aforementioned.

The said accident occurred while he was in the act of making repairs to the chimney on the roof of the factory premises, which repairs he was instructed to make by the respondent, the petitioner falling to the ground below as a result of the ladder slipping off the roof. The ladder in question having been furnished to the petitioner by the respondent.

The respondent sets up in its answer that the petitioner was not injured in an accident arising out of and in the course of his employment, within the meaning of the Workmen’s Compensation act aforesaid, in that the petitioner was an independent contractor at the time of the accident. The question therefore in the ease sub judice is whether or not petitioner was an independent contractor.

Independent contractor is defined as one who carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished but only as to the result of the work. Errickson v. F. W. Schwiers Jr. Co. (Court of Errors and Appeals), 108 N. J. L. 481; 158 Atl. Rep. 482; Reisman V. Public Service, 82 N. J. L. 539; 81 Atl Rep. 840.

The questions to be determined in deciding whether one is an independent contractor or an employe, are:

1. Who has the general control of the work?

2. Who has the right to direct what shall be done?

3. Who shall do it and how it shall be done?

If the answer to these queries'show that this right remains in the employer, the relation of the independent contractor does not exist between the contractor and the employe, on the other hand, if the employe has not this privilege it does not exist.

In determining whether or not one is an independent contractor we must also consider the conduct of the parties.

In the case sub judie e the employe did not carry on an independent business. He was employed at various places as a laborer. While his occupation was that of the skilled class he, owing to economic conditions, accepted any available employment.

The respondent assumed general control of the work but because of his lack of knowledge of the type of work to be done left its performance to the petitioner because of his skill and judgment as a mechanic, without restrictions upon the means to be employed in doing the work. Respondent assumed supervision as to the result to be accomplished. Petitioner was paid on an hourly basis and there was no definite arrangements as to length of employment. It would appear that he was to continue the employment for an indefinite period.

In view of the aforestated facts and circumstances, I find that the petitioner was not an independent contractor, but that the relationship of master and servant existed as defined in the act.

I, therefore, find that the petitioner on November 8th, 1934, was in the employ of the respondent, that on that date he sustained an accident arising out of and in the course of his employment, and that the respondent had knowledge of the accident within the time prescribed by the statute.

^ s|: sfi

John G. Wegneb,

Referee.


author:
John C. Wegner,
      Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MAMIE GREENHAUS, PETITIONER, v. ESSBEE AMUSEMENT CORPORATION, RESPONDENT.
    Decided September 3, 1935.
    For the petitioner, Hudspeth •& Harris.

      For the respondent, Gray & Beid (by A. Lionel Beid).

   This matter is presented on motion for interest to be allowed upon the compensation awarded.

The claim for compensation in this cause was dismissed by this bureau following extended hearings on March 30th, 1934. An appeal was taken by the petitioner to the Court of Common Pleas resulting in a reversal of the trial court and an award for compensation granted. The reversal was sustained by the Supreme Court.

That part of the Workmen’s Compensation act referring to the matter of interest is found in section 21-G- (Cum. Supp. Comp. Stat. 1911-1924, p. 3882), reading as follows:

“Whenever lawful compensation shall have been withheld from an injured employee or dependents for a term of three months or more, simple interest on each weekly payment at five per centum per annum for the period of delay of each payment may, at the discretion of the Bureau, be added to the amount due at the time of settlement.”

The claim for compensation in the opinion of this bureau involved a grave factual question. The withholding of compensation cannot be said to be due to bias nor prejudice on the part of the respondent. The petitioner herself, failed to file a petition until nearly two years after the date of the accident.

As the matter of granting interest is discretionary with the bureau and since it cannot be said the respondent failed to make payment of compensation by reason of negligence or prejudice, the motion will be denied, and it is therefore ordered

That the application for the allowance of interest on the compensation awarded to petitioner and the dependent, Aaron Greenhaus, be and the same is hereby dismissed.

John C. Wegner,

Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GEORGE SCANNY, BY HIS NEXT FRIEND, CLARA SCANNY, AND CLARA SCANNY, PETITIONERS, v. GREAT ATLANTIC & PACIFIC TEA COMPANY, A FOREIGN CORPORATION, RESPONDENT.
    Decided September 5, 1935.
    For the petitioners, Oscar LeWine.

    For the respondent, 0. N. Taylor.

   In case sub judice it is not denied that petitioner met with an accident which arose out of and in the course of his employment March 1st, 1934.

Respondent moves for a dismissal alleging that petitioner having executed notice to effect that section 2 of the Workmen’s Compensation act (Cum. Supp. Comp. Stat. 1911-1924, p. 3870, § **236-7) does not apply and due to his being a minor his mother also signed, the bureau has no jurisdiction.

Paragraph 9, section 2 (Cum. Supp. Comp. Stat. 1911-1924, p. 3871, § **236-9) provides that every contract of hiring made subsequent to the time provided for this act to take effect shall be presumed to have been made with reference to the provisions of section 2 of this act, supra, and unless there be as a part of such contract an express statement in writing, prior to any accident, either in the contract itself or by written notice from either party to the other that the provisions of section 2 of this act are not intended to apply, then it shall be presumed that the parties have • accepted the provisions of section 2 of this act and have agreed to be bound thereby.

In the employment of minors, section 2 shall be presumed to apply unless the notice be given by or to the parent or guardian of the minor.

The act is very clear as to the fact that in employment of a minor section 2 applies unless notice is given to his parent or guardian to the contrary.

. It was so held in the case of Troth v. Millville Bottle Works, 89 N. J. L. 219; 98 Atl. Rep. 435, and Brost v. Whital Tatum Co., 89 N. J. L. 531; 99 Atl. Rep. 315.

In its interpretation of this provision in the act the upper courts have been most liberal in so far as the manner in which notice is given as was determined in the above referred to cases.

But notice must be given as held in the case of Radasocky v. Newman, 3 N. J. Mis. R. 848.

The execution of this form is not merely a perfunctory act as was done in the case sub judice.

Referring to the form introduced by the respondent marked R-l in evidence we note that same is incomplete. It is not dated. Certification as to delivery is left blank. Mother of petitioner alleges she did not sign. There is no evidence to dispute this fact. Petitioner alleges he signed his mother’s name and a comparison of the signature of the petitioner with the signature purporting to be that of the mother’s name bears a marked resemblance. The signature of the mother offered in evidence while similar does not bear the same resemblance as the petitioner’s writing. We also have the testimony of the mother that she did not sign and the petitioner that he did sign her name with the further testimony that he did not know the purpose of the paper other than it would aid him in obtaining a job.

The witness who signed alleged he witnessed son’s signature but not the mother’s.

A document of this type in my opinion warrants more care in its execution than was exercised in this instance by the respondent. The administration of a statute is involved and one in which the procedure under section 1 (Cum. Supp. Comp. Stat. 1911-1924, p. 3868), is entirely different than that provided in section 2, supra.

In view of the fact that notice was not given as directed by paragraph 9 of section 2 (Cum. Supp. Comp. Stat. 1911-1924, p. 3870), I am holding that in this instance section 2 applies, and that the bureau has jurisdiction.

* * 3 $ $ $ $

John C. Wegner,

Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    RUDOLPH WOLF, Jr., PETITIONER, v. NATIONAL GROCERY COMPANY, RESPONDENT.
    Decided September 3, 1935.
    For the petitioner, Breslin ds Breslin.

    For the respondent, Edward 0. Wesl.

   H? ^ Hí

Petitioner was in the employ of the respondent on June 3d, 1933, and on this day petitioner was engaged in moving boxes of canned goods from the street to the store, said canned goods weighing according to the manager of the store, who testified for the respondent, approximately fifty pounds and according to the petitioner from sixty to seventy pounds. Petitioner while so engaged felt a sharp pain in his side which pain persisted, making it necessary for him to subsequently see a doctor within thirty-six to forty-eight hours after the occurrence. On June 5th, 1933, petitioner was operated upon at the Holy Name Hospital, Teaneck, New Jersey, for appendicitis.

Question is whether or not appendicitis can be caused by a strain.

Referring to Dr. Kessler’s book “Accidental Injuries,” under the caption “Appendicitis,” pages 393, 394 and 395, there seems to be some question as to whether or not appendicitis can be caused by such physical exertion as a lifting effort. He states that most eases occurring in industry are duo to aggravation of a pre-existing appendicitis through direct or indirect force. Heavy lifting or exertion may aggravate the condition by causing adhesions or by the definite opening of local abscesses. The proof of the initiation or aggravation of an appendicitis as the result of accident rests on the following postulates:

1. Ho symptoms or sign of appendicitis should have existed before the accident and the individual must have been able to work.

2. Severe injury of the abdomen or a real over-exertion must be proved.

3. Severe evidence of illness must be proved at once which leads to immediate cessation from work. An interval of two to three days without any symptoms and with full ability to work makes the asserted relation improbable.

Levai therefore takes the position that in a healthy appendix trauma can never cause appendicitis but holds, however, that it is possible in an adherent or kinked appendix, that is where there is a functional change, trauma may aggravate the same. From a medico-legal point then it becomes necessary to distinguish between an appendicitis induced through injury and one aggravated by injury. The following postulates guide rrs in determining this:

1. The injury was severe enough to cause at least a temporary cessation from work.

2. The nature and location of the injury were such as could affect the appendix.

3. The symptoms of appendicitis must follow the injury indirectly.

4. In case of death the autopsy should show that the appendix through its abnormal position and condition could have been influenced by injury.

Hence the author would conclude, according to the postulates laid down by Levai, that (1) trauma can never cause an appendicitis in a healthy appendix; (2) it may aggravate a pre-existing appendicitis, but in order to be compensated the injured must show at the time of operation an old appendicitis. Ho case of alleged appendicitis should be compensable unless it is operated upon, since a diagnosis would be too vague and uncertain unless verified by operation. Compensation for the same should be similar to that for a hernia, that is, payment for medical and surgical services, and in uncomplicated cases, no award for permanent disability.

Deferring to the 1930 edition of Trauma, Diseases, Compensation, by A. J. Eraser, M. D., chief medical officer, workmen’s compensation board, Winnipeg, it is found quoted therein the opinions of various medical authorities relative to relationship of trauma either by direct or indirect force to appendicitis.

Dr. H. Nothnagel (Encyclopedia of Practical Medicine) states, “appendicitis coming on after a sudden strain or effort has been usually attributed to the action of the psoas muscle, the appendix being supposed to be adherent to the sheath of the muscle as a result of slight former attack of appendicitis. On a very vigorous contraction of the muscle the adhesions are torn and the appendix ruptured.”

Erom Keane’s Surgery we note the following:

“Murphy calls attention to the fact that trauma is occasionally an exciting factor and cites Von Neumann’s analysis of one hundred and fifty-two cases where trauma, either from direct injury to the abdomen or from heavy lifting, figured in ten cases as an etiologic factor.”

C. B. Lockwood (System of Medicine) states “injuries are without doubt an exciting cause of appendicitis. Attacks have followed blows in the region of the cecum, while strain, too, have preceded attacks of the disease. But it is unnecessary to point out that these injuries may have aggravated merely an appendicular inflammation which was already in progress.”

Dr. A. J. Eraser adds to this, “it may be added that either primary causation or aggravation of pre-existent disease, is equally valid legal grounds for compensable liability.”

J. Sheren adds (Accidents in Their Medico Legal Aspects, Knocker) and (Choyce’s System of Surgery) an attack of appendicitis may be caused by abdominal contusion or sprain and that the symptoms always come on immediately or within forty-eight hours. If a longer interval elapses he considers the responsibility of the accident may be rejected. The mechanism of the trauma is explained as the forcing of fluid from the bowel into an unhealthy appendix, and that a concretion may act as a ball valve preventing its escape, or that a kinked appendix is further kinked from a strain. It is denied that an attack of appendicitis can ever be caused by injury if the appendix be absolutely healthy, but note is made that the patient may not be aware of any pre-existing disease.

II. A. Kelley (Appendicitis) states that in 'an analysis of fifty cases associated with trauma and presumptively of traumatic origin, found at operation evidence of the pre-existing disease such as concretions, adhesions, and kinking in forty of the series, he found no evidence to show trauma could cause appendicitis in a sound appendix. In none of the eases was there found any external evidence of injury. In practically all, the symptoms appeared either immediately or within forty-eight hours.

While there is some testimony to the effect that the lifting effort was coincidental with the fact, I feel after carefully considering the various authorities on the subject that appendicitis in this instance was due to strain caused by lifting heavy cases and I am finding for the petitioner.

^ v f¡: jj: .j;

John C. Wegnek,

Deputy Commissioner.


author: Herr, A. M.

text:
    John Tierney, petitioner, v. Henrietta McClellan Tierney, defendant.
    [Decided November 2d, 1935.]

      Mr. Nathan A. Whitfield, for the petitioner.

      Mr. Joseph J. Carissimi, for the defendant.
   Herr, A. M.

To the petitioner’s amended petition for divorce the defendant filed an answer and counter-claim, and being met by a special replication and an answer to the counter-claim served a demand for a bill of particulars respecting certain allegations contained therein. Hpon petitioner’s refusal to furnish such particulars, defendant applied to the court for an order requiring that they be furnished. The particulars sought are as follows :

1. In paragraph 3 of the counter-claim the defendant alleges that on May 1st, 1920, “petitioner and defendant entered into a written agreement, a copy of which is hereto attached and made part hereof, whereby it was agreed among other things that defendant * * * was to live separate and apart from petitioner/5 &c.

The counter-claim alleges that petitioner deserted defendant. The replication denies that allegation and reads: “Any agreement that was made on or about May, 1920, to live separate and apart from each other during their natural lives was subsequently broken by defendant.55 In the third paragraph of the answer to the counter-claim the averment is: “Petitioner admits that he entered into an agreement submitted to him by the defendant’s attorney, the purport of which he did not understand at that time, but that said agreement in nowise was the cause of the separation between the parties. He avers that the said defendant broke the said agreement within a short time after it was made and that she contracted debts and charged them to the said petitioner; that she harassed the said petitioner and endeavored to have him lose his place of employment and attempted to have him incarcerated, all in violation of the terms of the said agreement.55

The particulars demanded respecting these allegations of the replication and answer to the counter-claim are the date or dates and particulars of the alleged breaking of the agreement by defendant, the name and address of the attorney referred to, the date of submission of agreement to petitioner, whether the petitioner is referring to the same agreement set out in the counter-claim, what portion of the agreement was not understood by petitioner, the identity of persons with whom defendant contracted debts, and the dates and nature of those debts, the dates and nature of acts constituting harassment of petitioner, and places where those acts were committed, the identity of employer and dates on which defendant endeavored to cause petitioner to lose his employment, and the dates and acts constituting attempts to incarcerate, and identity of official or person whose aid was sought in the matter.

2. In paragraph 4 of the answer to counter-claim it is alleged that petitioner “regularly forwarded payments to the defendant for the support and maintenance of the infant child of the marriage and for her school education,” &c., and in paragraph 6 that “he has regularly supported and maintained the infant child of the marriage for all the time that she attended school.” As to these allegations the defendant seeks particulars as to dates, amounts and manner of payment of such moneys.

Originally bills of particulars were demandable only at law and the practice did not exist in equity prior to 1915. Paper and Textile Mach. Co. v. Newlin, 101 N. J. Eq. 115, 117; 137 Atl. Rep. 314. By rule 45 it is now provided that:

“The court may, in its discretion, order further and better particulars to be given of any matter stated in any pleading, or may order a bill of particulars to be given, in anjr case in which it may be justly required.”

There is no fixed and inflexible rule as to when a party is entitled to a bill of particulars; but generally it is held that, in an]»- case where, from any cause, a party is placed in such a situation that he cannot properly plead or prepare for trial unless he is apprised of the particulars and circumstances of his opponent’s case with more particular^ than is required by the rules of pleading the court ‘may direct that information as to such matters shall be seasonably furnished. 49 C. J. tit. "Pleading” 624 § 886 n. 34. No particulars will be ordered when it appears that the information sought is not necessary to enable the other party to plead or prepare for trial. Paper and Textile Mach. Co. v. Newlin, supra.

The primary function of a bill of particulars is not to expose a party’s evidence to his adversa^, but to amplify the pleadings, and indicate, with more particularity than is ordinaria required in a formal plea, the nature of the claim made, in order that surprise upon the trial may be avoided, and the issue more intelligently met. It may be required for the purpose of giving definite information as to a claim made by an adversary in respect of any material fact at issue. Wolf son v. Mills (Supreme Court), 112 N. J. Law 1, 2; 169 Atl. Rep. 359.

A bill of particulars has the two-fold effect of informing the defendant, with relation to the details of the plaintiff’s case, with a view of preparation of a proper pleading in reply to the complaint, and also limiting the plaintiff’s proof on the trial as well as apprising the defendant what is proposed to be set up, to the end that the defendant may prepare a proper defense. Hopper v. Gillett (Supreme Court), 6 N. J. Mis. R. 63, 65; 140 Atl. Rep. 17 (app. dism., 105 N. J. Law 150; 143 Atl. Rep. 488); (quoted in Brady v. Hauenstein, 7 N. J. Mis. R. 1081; 148 Atl. Rep. 182; Buermann v. Morris, 8 N. J. Mis. R. 811; 152 Atl. Rep. 341; Billy v. Talarsky, 11 N. J. Mis. R. 184; 165 Atl. Rep. 413).

“The principle which guides the court in granting or refusing applications of this nature is, that the party who avers matters which he must prove on the trial, shall so far apprise his opponent concerning them that he may intelligently prepare his pleadings and defenses. This is a necessary part of any rational administration of justice, and as the matters which a party must prove are presumed to be within his knowledge, it can work no hardship. The particulars thus required to be disclosed need not be the manner of proof which the party intends to employ, only the matters themselves upon competent proof of which he proposes to rest his claim. * * * The questions in every instance being, are the facts which constitute the claim within the knowledge of the party averring and is there specification necessary to a proper apprisal of the other party?” Heppard v. Carr & Smith (1889, Gloucester Circuit Court, Garrison, J.), 12 N. J. L. J. 186.

A party cannot be compelled to disclose his evidence in a bill of particulars. Wolf son v. Mills, supra. A bill of particulars limits the proof of the party producing them. Hopper v. Gillett, supra; Buermann, v. Morris, supra; see 8 A. L. R. 560. As a general rule a party will not be required to furnish information which is equally or peculiarly within the knowledge of the party demanding it. 49 C. J. 639 § 902. See Paper and Textile Mach. Co. v. Newlin, supra. The court may order particulars in part and deny them in part. Magie v. Magie, 108 N. J. Eq. 483; 155 Atl. Rep. 613.

In Magie v. Magie, supra (1931, Backes, Vice-Chancellor), there were counter-motions to strike out interrogatories and for a bill of particulars. The action was (second canse) to cancel a mortgage on complainant's property on the grounds that such mortgage was given without consideration and was executed “without [the mortgagor's] knowledge of the legal and practical effect” and that it “was not given voluntarily, but was given under duress.” Defendant asked for bill of particulars of the charges and also submitted interrogatories and motion to strike them out was made.

In speaking of the distinction between interrogatories and a bill of particulars the vice-chancellor (at p. l^ty) said: “Interrogatories may not be resorted to to pry into an opponent's case. They may be used only for the purpose of establishing the case of the proponent at the hearing, and they may not be submitted until after issue is joined. Chancery rule 84. A bill of particulars has an entirely different function from interrogatories. It is for the discovery of air opponent’s case with greater particularity than is disclosed by his pleadings. (Italics mine.) It may be sought before answer in order to appropriately set up the defense in the pleadings and after answer to intelligently meet the opponent’s case at the trial.”

The court granted defendant a bill of particulars as to charges that the mortgage was executed “without knowledge of the legal and practical effect” and that it “was not given voluntarily, but was given under duress.” The court (at p. 1/81) said:

“These charges are of wide range and are so indefinite as .to be meaningless as pleadings. * * * The other charge that the mortgage was given without consideration is not open to elaboration. It is a matter within the defendants knowledge and correct pleading required of him that he discover the consideration in his answer. (Italics mine.) Borough of Vineland v. Moretti, 93 N. J. Eq. 513.”

In the tort action of Brady v. Hauenstein (Hudson County Circuit, Ackerson, J.) supra, the court (at p. 1082) said:

“An inquiry as to the names of physicians and nurses is proper under the last cited case (Hopper v. Gillett, supra), and if this is so, it would appear that their addresses would be the proper subject of inquiry also for the purpose of identification, so that defendant would know exactly the doctors and nurses referred to, and thus also limit the plaintiff to the particular persons intended * *

It does not appear in the Brady Case that defendant had equal knowledge of, or equal access to, the names and addresses.

In Heppard v. Carr & Smith, supra, plaintiff claimed for plumbing services for a stated period at a fixed sum per diem, and claimed $250 on a special contract. Under the special contract plaintiff was to manage a plumbing business for defendants and for such service was to receive a sum equal to one-half of the net profits. Plaintiff stated gross receipts to have been $1,511.98 and operating $1,011.98 leaving $500 balance. Defendants demanded a bill of particulars as to the times when and the persons for whom the services were rendered by which the gross receipts were estimated. It was held that since plaintiff alone had knowledge of the persons and items he should furnish such particulars.

Applying these settled rules to the present case, some of the demands appear to be proper and others improper.

I. Particulars respe,cling the petitioner’s alleged misunderstanding of the agreem.e.nt.

The petitioner should furnish particulars as to what portion of the agreement it was the purport of which he did not understand. This is a matter peculiarly within the petitioner’s knowledge. Unless he is required to specify, the defendant will be compelled to meet the allegation as to any part of said agreement. The allegation is too broad and indefinite. Magie, v. Magie, supra.

II. Particulars respecting the identity of the agreement to which petitioner refers.

It seems proper that the petitioner should comply with the demand for particulars asked for in paragraph 2 subdivision (3) of defendant’s demand for bill of particulars. While in petitioner’s special replication he refers (in paragraph 1) to an agreement made “on or about May. 1920,” in the answer to the counter-claim he refers merely to “an agreement” (paragraph 3). Paragraph 3 of the answer to the counterclaim is an answer to paragraph 3 of the counter-claim wherein the agreement is set up. The special replication and answer to counter-claim are distinct pleadings. The admission of petitioner in paragraph 3 of the answer to counterclaim does not expressly admit the execution between him and defendant of the agreement of May 1st, WHO. The petitioner may subsequently claim that he was admitting the execution of some other agreement. Particulars should therefor he furnished.

III. Particulars as to dates, amounts and manner of payments under agreement.

The petitioner admits that he is in possession of the information sought by defendant in her demand, but the defendant has knowledge of the receipt of payments made to her. In her counter-claim in paragraph 4 she states the amounts received and the dates. It seems that defendant has sufficient knowledge to plead and prepare for trial on these matters.

IV. The remaining demands for particulars.

All other demands for specifications should be denied, on the ground that the defendant already has sufficient know-edge to plead and prepare for trial.

An order will be advised in accordance with the foregoing conclusions.


author: Perskie, J.

text:
    THE STATE OF NEW JERSEY, RESPONDENT, v. EDWIN W. DORCH, PROSECUTOR.
    Submitted January term, 1935
    Decided November 29, 1935.
    Before Justices Trbnoiiakd, IIehbr and Persicie.
    For the prosecutor, Thomas Brunetto.

    For the respondent, David T. Wilentz, attorney-general, and Alexander F. Ormsby, assistant attorney-general.
   The opinion of the court was delivered by

Perskie, J.

This case is incorrectly styled. Eule 15 of this court requires that it be entitled as it was before the recorder, i. e., as above captioned.

Prosecutor challenges a judgment of conviction, entered in the Recorder’s Court of the town of Bloomfield, upon a complaint charging that, on August 26th, 1934, he operated a motor vehicle on a public highway of that municipality while under the influence of intoxicating liquor, in violation of “the provisions of subdivision 3 of section 14 of the Motor Vehicle act of the State of New Jersey known as chapter 208, Pamph. L. 1921 (Cum. Supp. Comp. Stab. 1911-1924, p. 1993. § 135-63 (3), as amended and supplemented * * Although not so charged in the complaint, he was punished as a second offender.

Counsel for prosecutor in this case was also counsel for the prosecutor in case of Supreme Court, entitled State of New Jersey, respondent, v. Harold Rowe, prosecutor, 116 N. J. L. 48. The same pertinent points and arguments are substantially made in each case.

Our holding in State v. Rowe, 116 N. J. L. 48, is controlling.

We desire only to mark the fact that in the case at bar the hearing before the recorder started on September 21st, 1934, and the prosecution undertook to show a prior conviction. The case was then adjourned until September 25th, 1934, when it was resumed and concluded. The prosecutor, who denied his prior conviction, was thus given ample opportunity, and took full advantage thereof, to meet that charge. He was, therefore, appropriately informed and heard on that fact. Thus, the question as to whether his fundamental rights were invaded is also purely academic in this case.

The evidence, we think, amply furnished a substantial basis for prosecutor’s conviction on the complaint as charged and for his punishment as a second offender.

The judgment is affirmed, and the writ is dismissed, with costs.

Heher, J., dissents.


author: Egan, Y. 0.

text:
    Harry L. Francisco and Mary Adelia Francisco, complainants, v. Department of Institutions and Agencies, William J. Ellis, commissioner of institutions and agencies, and Margaret Eck, defendants.
    [Decided September 23d, 1935.]

      Messrs. McGarter <& English, for the complainants.

      Mr. John A. Matthews, for the defendant Margaret Eck.
   Egan, Y. 0.

The defendant Margaret Eck has conducted a private nursing home, hospital and sanitarium for profit, at No. 117 South Fullerton avenue, Montclair, New Jersey, for more than fifteen years. In or about October, 1932, the complainants acquired the title to the adjoining premises, at No. 115 South Fullerton avenue, Montclair, New Jersey, which they have since ocenpied. They seek to enjoin the defendant from conducting her business on the described premises for the reasons that:

“1. It is a nuisance to them because certain noxious, annoying and deleterious gases and offensive and ill-smelling odors enter into and permeate their home causing them harm, annoyance and great discomfiture.

“2. It is being operated in violation of the laws of the State of New Jersey, which provide a penalty and punishment for such illegal and unlawful operation in the sum of $500 or imprisonment for six months or both.

“3. It is being operated contrary to a zoning ordinance of the township of Montclair passed and adopted May 17th, 1934.

“4. It is being operated in violation of the rules and regulations of the department of institutions and agencies.

“5. That by reason of the use of said premises as a private nursing home, &c., their property has greatly depreciated in value and will continue to so depreciate.”

The bill also prays that the defendants, department of institutions and agencies, and William J. Ellis, commissioner of institutions and agencies, be enjoined and restrained from issuing and granting a license to the defendant Margaret Eck for the maintenance of a hospital on her premises. It was stipulated in the record that the department of institutions and agencies, and Commissioner Ellis, would file no answer and present no appearance at the final hearing, and that they will abide by the result of the suit against the defendant Margaret Eck.

Complainants say they were not aware of the nature of the business conducted by the defendant on the premises No. 117 South Fullerton avenue at the time they acquired their title to No. 115 South Fullerton avenue. They contend that the defendant’s use of the premises is injuriously offensive to them and constitutes a common law private nuisance; they declare that from the sanitarium emanate:

“1. The smell and odor of anesthesia, or ether, and also a general hospital odor.

“2. The excessive odors of laundering and cooking.

“3. The disturbing noises—such as moans, groans and cries.”

At this point, it is in order to observe a few of the principles expressed in several of the decisions of the courts of this state which apply to the facts adduced at the hearing of this suit. Vice-Chancellor Pitney, in Hennessey v. Carmony, 50 N. J. Eq. 616; 25 Atl. Rep. 374, stated:

“Upon reason and authority I think there is a clear distinction between that class of nuisances which affect air and light merely, by way of noises and disagreeable gases, and obstruction of light, and those which directly affect the land itself, or structures upon it. Light and air are elements which mankind enjoy in common, and no one person can have an exclusive right in any particular portions of either, and as men are social beings, and by common consent congregate and need fires to make them comfortable and cook their food, it follows that we cannot expect to be able to breathe air entirely free from contamination, or that our ears shall not be invaded by unwelcome sounds. Thus, my neighbor may breathe upon my land from his, and the smoke from his house fire and the vapor from his kitchen may come on to my land, or ho may converse in audible tones while standing near the dividing line, and all without giving me any right to complain. So my neighbor and I may build our houses on the line between our properties, or have a party wall in common, so that we are each liable to hear and be more or less disturbed by the noise of each other’s family, and cannot complain of it. In all these matters of the use of the common element--air—we give and take something of injury and annoyance, and it is not easy to draw the line between reasonable and unreasonable use in such cases, affecting, as they do, mainly the comfort and in a small degree the health of mankind. In attempting to draw this line we must take into consideration the character which has been impressed upon the neighborhood by what may be called the common consent of its inhabitants.”

In Demarest v. Hardham, 34 N. J. Eq. 469, Vice-Chancellor Van Fleet said:

“Ho rule can be framed which will accurately define what acts or facts will constitute a nuisance in every possible contingency. Each case must be decided on its own peculiar facts. There can be no doubt that a lawful business, which is not inherently a nuisance on account of its offensive character, may be so conducted as to render it a nuisance which equity will restrain. The maxim sic utere tuo ut alienum non laedas, undoubtedly expresses the general fundamental rule, but it is also true that the law does not regard every trifling injury or annoyance as an actionable nuisance. Things merely disagreeable, which simply displease the eye, or offend the taste, or shock an over-sensitive or fastidious nature, no matter how irritating or unpleasant, are not nuisances.” * * * “Perhaps the most accurate statement of the rules to be observed in deciding the question whether a business is so conducted as to render it a nuisance or not, is that given by Mr. Justice Mellor in charging a jury at the Liverpool assizes in 1865. He said: ‘Every man is bound to use his own property in such a manner as not to injure the property of his neighbor. * * * But the law does not regard trifling inconveniences; everything must be looked at from a reasonable point of view; and therefore, in an action for nuisance to property, * * * the injury, to be actionable, must be such as visibly to diminish the value of the property, and the comfort and enjoyment of it. In determining whether a nuisance exists or not, the time, locality and all the circumstances should be taken into consideration. In counties where great works have been erected and carried on, which are the means of developing the national wealth, persons must not stand on extreme rights and bring actions in respect of every matter of annoyance, for if they do, business cannot be carried on in these places.”

Chancellor Zabriskie, in Ross v. Butler, 19 N. J. Eq. 294, said:

“But the question remains, what degree or amount of discomfort is necessary to constitute a nuisance. It is clear that everything that renders the air a little less pure, or is to any extent disagreeable, is not necessarily a nuisance. The smoke that may, in certain conditions of the atmosphere, descend from the neighbor’s chimney, the fumes that may sometimes be wafted from his kitchen, though not desirable or agreeable, are not a nuisance.”

The complainant Harry L. Francisco testified that he smelled the odor of ether which came from the premises of the defendant some thirty or forty times “since I have lived there.” The odor was a pungent nauseating odor. As to the noises, moans and groans, Francisco’s testimony shows (page 48 testimony) :

“Q. * * * Did you hear noises and groans and moans emanating from that house and found that those noises and groans and moans were discomfiting and disquieting to you and upset your peace of mind? A. I will say at least a half a dozen times. * * *”

The wife of this witness, Mary Adelia Francisco, testified that from October, 1932, “to the present time” she smelled the anesthetic. When asked how many times, she stated (page 48 of testimony) :

"A. Well, I would say it might have been two dozen times.”

A witness for the complainant, Mrs. Kiker, who lives opposite the complainants, at USTo. 116 South Fullerton avenue, Montclair, testified (pages 53 and 54 testimony) :

“A. I haven’t noticed anything wrong or objectionable, only there have been patients coming in there and it has been run as a hospital.”

She further related (pages 59 and 60 testimony) :

“Q. And after you went to bed at night you could hear the screams from these premises? A. Yes, Q. And how many times would you say you heard those things during the period from October, 1932, down to date? A. I couldn’t tell you. Q. Would- you make it also thirty or forty times? A. Yes.”

Mrs. Francisco, testifying as to the noises (page 46 testimony), said:

“Q. I want to know approximately how many you have heard during the summer of 1933 of the twelve or fifteen that you have heard from October, 1932, down to the present date? A. Well, I said twelve or fifteen.”

Mrs. Kiker, who lives on the opposite side of the street from the defendant—approximately ninety feet—testified that she heard noises emanating from the Eck building some thirty or' forty times; while the complainant Mary Adelia Francisco, living in the house on the adjoining premises—approximately twenty feet from the defendant’s building—heard noises “twelve or fifteen times.”

Mrs. Stenz, a neighbor for some fifteen years, residing at No. 119 South Fullerton avenue, Montclair, adjoining the Eck premises, called by the defendant, stated as follows (pages 84 and 85 testimony) :

"Q. During this period of time, Mrs. Stenz, did you ever smell any offensive odors or any anesthetics or hospital smells ? A. None whatever. Q. During this period of time, Mrs. Stenz, were you ever annoyed or discomfited by groans and shrieks? A. Never a sound. Q. Or by any loud noises? A. Never.”

Testimony to the same effect was given by other witnesses produced by the defendant—by Marie Thomas, her cook; by Veronica McDonald, her nurse; bjr Elizabeth Witscher, and by Dr. Bush.

■ The complainants allege excessive odors of laundering and cooking; no evidence of odors from laundering appears in the record. The number of patients in the sanitarium, at one time, was small. Mrs. Eck testified that since October, 1932, she had in the hospital—“one time there was an emergency arose and I had five. Usually I have four.”

Francisco and his wife complained about the odor from cooking. Francisco, in answer to a question on cross-examination, said: “It is not pleasant.” lie further testified:

“Q. It is approximately the same kind of a smell which you smell in your own kitchen, is it not, Ms. Francisco. A. 'Yes. Q. So there was nothing particularly disagreeable or discomfiting about the cooking odor. A. Not agreeable or comforting. Q. It was not more disagreeable or discomfiting than your own kitchen? A. I should say not.”

On direct examination, Mrs. Francisco was asked this question:

“Q. Would you say the cooking was more than for an ordinary family? A. Why, certainly I would say so. I would not be able to prove that because I have never been in the house, but there is no question it could be proved. She has been running that nursing home for fifteen years and there are people in that home all the time. They must eat.”

The last quoted testimony has no evidential value. I think the testimony of Francisco, as last quoted, comes under the principle expressed in Ross v. Butler, supra. I do not apprehend that the odors from the cooking in the sanitarium were any greater, or more offensive, than that which is incidental to the home of the average American family.

The testimony as to the noises, moans, groans and cries seems to be limited to but a few occasions; they were by no means general. The operations upon patients in the sanitarium were few and far between. Francisco testified on those disturbances as follows (pages 28 and 29 testimony) :

“Q. That is what I want approximately. Probably we can arrive at it easier by asking you approximately how many times from November, 1932, to say May of 1934, did you hear noises and groans and moans emanating from that house and found that those noises and groans and moans were discomfiting and disquieting to you and upset your peace of mind? A. I will say at least a half a dozen times. * * *.”

These last mentioned noises, amounting to six, happened in a period extending over eighteen months. I do not believe those infrequent, and separated, occasions could, or would seriously affect the peace and quiet of the complainants. Mrs. Francisco testified as follows (page 47 testimony) :

“Q. You cannot then estimate the approximate number of times that you were annoyed and discomfited by the screams and moans in the past ten months except you say there were about two, is that right? A. I said I recall at least two. There were probably more, but I couldn’t say how many. There haven’t been so many during the time you are asking me about.”

The defendant denies that the premises as operated and conducted by her constituted a public nuisance; and she denies that it was in violation of the zoning ordinance of the township of Montclair, or the laws of the State of New Jersey, as expressed in chapter 115, laws of 1927. She stated that she applied for a renewal of her license on February 1st, 1934, and had sent her cheek to cover the fee therefor on May 2d, 1934; that the representative of the department of institutions and agencies then told her no license would be issued to her, but that she could conduct her business without one since it was not the department's policy to issue a license when litigation concerning the subject-matter was pending. She argued that by reason of the attitude of the department of institutions and agencies that she was, therefore, legally operating; and that being so, she is not affected by the provisions of the Zoning act (laws of 1928, chapter 274).

The defendant, in support of her right to continue her business which was in existence before the adoption of the Zoning act, cites the case of Frank J. Durkin Lumber Co. v. Fitzsimmons, 106 N. J. Law 183; 147 Atl. Rep. 555, in which Mr. Justice Case, speaking for the court of errors and appeals, in part, said:

“On October 18th, 1927, the people, at a special election, adopted a constitutional amendment providing that—The legislature may enact general laws under which municipalities, other than counties may adopt zoning ordinances * * By its terms this constitutional provision was to become effective, within its scope, only if, when, and as the legislature should enact. The anticipated statute was passed and approved April 3d, 1928, as chapter 274 of the laws of that year. The alleged ordinance violations occurred in the early part of March, 1928, and were, therefore, at the time of their occurrence, not unlawful. Did the 1928 statute, by retrospective application, make them unlawful? It is to be borne in mind, without accentuating the penal character of the proceeding under review (Marter v. Repp, 80 N. J. Law 530; affirmed, 82 N. J. Law 531), that.it is ca familiar and important principle, always to be kept in mind in the construction of statutes, that they are not to be given a retrospective effect or operation if their language reasonably admits of another construction.' Frelinghuysen v. Morristown, 77 N. J. Law 493. It is also to be remembered that the use of property is one of the essential attributes of ownership. Ownership without use is fatuous. True, every owner holds his property subject to the implied condition that it will not be used for the injury of others and also subject to a degree of municipal control in the interest of the common good. But if use is an attribute of property, may a municipality, without making compensation, estop an owner from continuing a use that is an actuality, that was begun and continued lawfully, and that becomes unlawful only because the municipality has so ordained? With respect to the construction of buildings the rule established in Rohrs v. Zabriskie, 102 Id. 473, and approved in Koplin v. South Orange, 6 N. J. Mis. R. 489, that a writ of mandamus being discretionary, there can be no vested rights that control the exercise of that discretion, unless a permit is issued and work is actually commenced thereunder. Recognizing that the granting of a permit and the subsequent beginning of work thereunder do clothe the owner with certain rights against municipal interference this court very recently, in two instances, refused a municipality the privilege of revoking a permit theretofore given. Saline Freeman v. Frank Hague et al.; Lehigh Valley Railroad Co. v. Mayor and Aldermen of Jersey City et al. It seems that a logical application of the same principle is to recognize the right to continue, as against subsequent zoning interference, a use that was actually instituted, that was lawful when instituted and that has been actively and constantly maintained. We consider that the statute does precisely that.”

The complainants say that the defendant violated the zoning ordinance, and in addition, they claim they were specially injured. I am in accord with the reasoning of the defendant that the zoning ordinance does not and should not apply to her. She was in business, at her present location, long before the ordinance was adopted and its provisions, therefore, could not attach to her existing business. Frank J. Durkin Lumber Co. v. Fitzsimmons, supra. The complainants’ asserted special injury is an alleged diminution in the value of their premises. The evidence to this effect is the production of the record of a reduction in the assessment of their property by the tax board. The complainants say that when their petition to the tax board for a reduction of their taxes was being heard, the contiguity of the defendant’s business affecting the value of their realty was considered. The act of the tax board is of doubtful evidential value in these proceedings. The complainants state the proximity of the defendant’s business to their property resulted in a reduction of their assessment. The defendant very properly questions the competency of such evidence, and points to the decisions rendered in Ringwood Co. v. North Jersey District Water Supply Commission, 105 N. J. Law 165; 143 Atl. Rep. 369; Ross v. Commissioners, Palisades Interstate Park, 90 N. J. Law 461; 101 Atl. Rep. 60. These cases consider, among other things, that damage to realty may be shown by primary evidence, or by expert testimony of realtors.

In the case of Zabriskie v. The Jersey City and Bergen Railroad Co., 13 N. J. Eq. 314, Chancellor H. Greene, in part, said:

“A mere diminution of the value of property by the nuisance, without irreparable mischief, will not furnish any foundation for equitable relief.”

In Morris and Essex Railroad Co. v. Prudden, 20 N. J. Eq. 530 (at p. 587), Mr. Justice Depue makes this observation :

“In cases of unquestioned public nuisance, a court of equity will not interfere by injunction, except in eases of special and serious injury to the complainant, distinct from that suffered by the public at large. There must not only be a violation of the plaintiff’s rights, but such a violation as will be attended, with substantial and serious damage. Bigelow v. Hartford Bridge Co., 14 Conn. 565. No remedy exists in these cases, by an individual, unless he has suffered some private, direct, and material damage beyond the public at large, as well as damage otherwise irreparable. Irwin v. Dixon, 9 How. 27. Mere diminution of the value of the property of the party complaining, by the nuisance, without irreparable mischief, will not furnish any foundation for equitable relief. Zabriskie v. The Jersey City and Bergen Railroad Co., 2 Beas. 314.” Van Wagenen v. Cooney, 46 N. J. Eq. 24; 16 Atl. Rep. 689; Van Horne v. Newark Passenger Railway Co., 48 N. J. Eq. 332; 21 Atl. Rep. 1034; Perkins v. Moorestown and Camden Turnpike, 48 N. J. Eq. 499; 22 Atl. Rep. 180; Middlesex Transportation Co. v. Pennsylvania Railroad Co., 82 N. J. Eq. 550; 89 Atl. Rep. 45.

In Morrison v. Standard Oil Company of New Jersey, 105 N. J. Eq. 104; 147 Atl. Rep. 161, appears the fallowing:

“There is an allegation in the bill to the effect that the completion of the defendant’s plan will diminish the value of her property. That is no ground for an injunction. Zabriskie v. Jersey City and Bergen Railroad Co., 13 N. J. Eq. 314; Morris and Essex Railroad Co. v. Prudden, supra; Halsey v. Rapid Transit Street Railway Co., 47 N. J. Eq. 380; Northfield v. Atlantic County, 85 N. J. Eq. 47.”

I have very grave doubts about the merits of the complainants’ suit. I believe there were infrequent occasions when the odor of anasthesia, and of cooking, emanated from the defendant’s premises; and at times there were, moans and groans from patients in the sanitarium; but I am not inclined to the belief that the odors and noises complained of caused substantial, serious and irreparable damage to the complainants. Van Wagenen v. Cooney, 45 N. J. Eq. 24; 16 Atl. Rep. 689. The testimony presented in behalf of the complainants is fairly met bjr the contrary evidence offered by the defendant. Thus, a doubt is cast upon the complainants’ right to succeed in their application for relief. The words of care and caution so admirably expressed by Chief-Justice Beasley in Citizens Coach Co. v. Camden Horse Railroad Co., 29 N. J. Eq. 302, may be here repeated:

“ "There is no power, the exercise of which is more delicate, which requires greater caution, deliberation and sound discretion. and which is more dangerous in a doubtful case, than the issuing of an injunction. It is the strong arm of equity that never ought to be extended unless in cases of great injury, where the courts of law cannot afford an adequate or commensurate remedy in damages.’”

The defendant established her nursing home approximately fifteen years before the complainants entered her neighborhood. It is a lawful business. “It is not necessarily inherently noxious, offensive or injurious.” She maintained it, evidently without complaint or hindrance until June, 1934, when the bill herein was filed. To grant the prayer of the bill, would be tantamount to destroying her business and affect her means of livelihood. Equity will avoid effecting such a result unless forced to do so by clear and convincing evidence and compelling circumstances. None of these elements are present in the complainants’ ease. Vice-Chancellor Van Fleet, in Demarest v. Hardham, 34 N. J. Eq. 469, expressed that rule when he said:

“The important question presented by this case is, does the manner in which the defendant conducts his business interfere with or injure the business of the complainants to such an extent as to create a nuisance which it is the duty of a court of equity to enjoin? The defendant’s business is not only lawful, but necessary. It is carried on in a part of the city of Newark devoted almost exclusively to manufacturing and business purposes. No objection can therefore be made to it on the ground that its location is not a fit one. It is not necessarily or inherently noxious, offensive or injurious. It should not, therefore, be enjoined except under a stern necessity. The complainants ask that it be absolutely interdicted, their prayer being that the defendant be restrained from further operating his engine and presses. To grant their prayer is to destroy the defendant’s business. Power attended with such disastrous consequences should always be exercised sparingly, and with the utmost caution. All doubts should be resolved against its exercise. Attorney-General v. Nichol, 16 Ves. 338. Relief by injunction in such cases, is not a matter of right, but rests in discretion. If the legal right is not clear, or the injury is doubtful, eventual or contingent, equity will give no aid. Richard’s App., 57 Pa. St. 105; Rhodes v. Dunbar, Ibid. 274; Huckenstine’s App., 70 Pa. St. 102.”

The same principle is set forth in the language of Mr. Justice Depue in Morris and Essex Railroad Co. v. Prudden, supra, where he said:

“It must be a strong and mischievous case of pressing necessity, or the right must have been previously established at law, to entitle the party to call in aid the jurisdiction of a court of equity. * * *

“All injunction ought not to be granted where the benefit secured by it to one party is but of little importance, while it will operate oppressively and to the great annoyance and injury of the other party, unless the wrong complained of is so wanton and unprovoked in its character as properly to deprive the wrongdoer of the benefit of any consideration as to its injurious consequences.”

To issue a restraint against the defendant, upon the evidence adduced, would be to impose upon her a severe and unwarranted penalty. I shall advise a decree dismissing the bill of complaint.