text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EDWARD GLASS, PETITIONER, v. KIECKHEFER CONTAINER COMPANY, RESPONDENT.
    Decided January 25, 1946.

      For the petitioner, Edward V. Martino.

    For the respondent, French, Richards & Bradley (by Blame E. Capehart).

   A petition was filed in the above entitled matter claiming compensation under and by virtue of the terms and provisions of Bevised Statutes of New Jersey, 1937, Title 34, chapter 15; N. J. 8. A. 34:15-1, et seq. An answer thereto-was duly filed by the respondent. The matter came on for hearing before me, a Deputy Commissioner of Compensation, at the Workmen’s Compensation Bureau, Court House Annex, Camden, New Jersey.

It is alleged in the petition that petitioner, on March 26th, 1943, during the course of his employment with respondent, was struck in the chest by a lever attached to an ash pit door, receiving injuries resulting in the disability for which compensation is sought. The petitioner also seeks to charge respondent for the cost of certain medical and surgical treatment which he alleges to have been necessary and which respondent failed to render. The answer denies the occurrence of a compensable accident as well as notice of any injury.

Without going into detail as to the occurrence of an accident, I find from the testimony produced that the petitioner sustained an accident arising out of, during and in the course of his employment with the respondent, as alleged, on March 29th, 1943, resulting in injuries of which respondent had due notice. The petition may be amended to allege the true date of the occurrence of said accident.

Following the accident, the petitioner complained of pains in the chest, shortness of breath and coughing spells with occasional spitting of blood. He was treated at the dispensary of respondent, and the physician in charge stated that from the history given, his complaints of pains were in the region of his liver, and made a diagnosis of a possible contusion of the liver. On April 5th, 1943, respondent hospitalized the petitioner for six days. The diagnosis upon admission was fractured rib, but a revised diagnosis after X-rays appeared negative of fracture, was contusion of chest. It is significant to note that the hospital record offered in evidence, shows the complaint to be “pain in the chest.” The condition of petitioner not improving, he was readmitted to the hospital on May 26th, 1943, where he remained until June 11th, 1943. The hospital record shows the admitting diagnosis to be acute empyema, and the revised diagnosis to be congestion of lower lobe (right). It also appears from the hospital record that X-rays taken on May 27th, 1943, showed an area of opacity in the region of the right lower and middle lobes, not dense enough to obscure the ribs and that pleural exudate seemed suggested, but it might be inflamation; and that X-rays taken on June 7th, 1943, showed much the same as the prior X-rays, and that the opacity was not diminished. The petitioner testified that following his discharge, his condition became worse, in that he suffered more pain, coughed more frequently, raising bloody sputum, and became very short of breath. On September 6th, 1943, he was again admitted to the Cooper Hospital and discharged on November 8th, 1943. The hospital record during this period discloses that the admitting diagnosis was lobar pneumonia, and the revised diagnosis was tumor of the right lung; that X-rays showed the opacity more discrete and circumscribed; that he was sent by the Cooper Hospital to Jefferson Hospital for a bronehoscopic examination on September 18th, 1943, and that the findings were inconclusive, but suggestive of a tumor. Following his discharge, petitioner visited the plant dispensary several times and was advised on November 14th, 1943, that he was able to return to work.

Petitioner testified that he sought no further medical treatment, but he did not again work until April 4th, 1944, when he obtained employment operating an elevator for the Army Air Forces and worked from eight to sixteen hours per day, six days a week, until late in December, 1944, when he again developed a terrible cough with bloody sputum; and that he sent for Dr. John C. Jones, his family physician. Dr. Jones testified that he was called to petitioner’s home about January 13th, 1945, and found petitioner in a weak condition with breathing difficult; that he called daily and noticed his sputum. had a peculiar aromatic odor; that on January 28th, 1945, he caused the petitioner to be admitted to Cooper Hospital and even though the petitioner was being treated by hospital staff, he visited him weekly, and after several chest taps had been made, concluded that the petitioner was suffering from an abscess of the lung. The doctor further stated that at the time of admission there was a doubt that the petitioner was suffering from pneumonia. The records of the hospital disclose the petitioner was admitted through the accident ward and was transferred by the hospital staff to Jefferson Hospital on April 27th, 1945.

It appears from the testimony of Dr. James M. Server that he examined petitioner upon his admittance to the surgical service of the Jefferson Hospital, and after X-rays were taken, made a diagnosis of lung abscess; that on May 2d, 1945, he performed the first stage operation and found evidence of an abscess of the lungs, in the right middle and lower lobes, as indicated by the X-rays; that he performed the second stage operation on May 14th, 1945, at which time four inches of the third and fourth ribs were removed; and that in September, 1945, he performed the third operation to close the hole through which the abscess was drained. It was his opinion that in view of the history of plumonary symptoms dating from the accident, that the contusion to the chest wall was of sufficient severity to lead to the lung abscess. It was also his opinion that the petitioner would be unable to return to work for four or five months from November 16th, 1945.

The respondent seriously contests the causal relationship of the injury to the lung abscess. But does an analysis of the testimony of Dr. Shafer support such contention? On cross-examination, Dr. Shafer admitted that, knowing the medical history subsequent to petitioner’s discharge from the Cooper Hospital on November 8th, 1943, he believes the petitioner may have had some chest condition at the time he gave petitioner a pre-employment examination, and further that he believed the abscess was developing in 1943, and if so, trauma would be detrimental and hasten the process.

In proving causal relationship, absolute medical certainty is not demanded. All that is required is that the claimed conclusion be a more probable hypothesis from the facts presented; Jackson v. Delaware, Lackawanna and Western Railroad, 111 N. J. L. 487; 170 Atl. Rep. 22; Hercules Powder Co. v. Nieratko, 113 N. J. L. 195; 173 Atl. Rep. 606; affirmed, 114 N. J. L. 254; 176 Atl. Rep. 198; Belyus v. Wilkinson, Gaddis & Co., 115 N. J. L. 43; 178 Atl. Rep. 181; affirmed, 116 N. J. L. 92; 182 Atl. Rep. 873. And in establishing causal relationship, it is not necessary that the accident be shown to be the sole contributing cause; Furferi v. Pennsylvania Railroad, 117 N. J. L. 508; 189 Atl. Rep. 126. It is sufficient when the proof shows that the employment was one of the contributing causes without which the accident would not have happened, and that the accident was one of the contributing causes without which the injury would not have resulted; Ciocca v. National Sugar Refinery Co., 124 N. J. L. 329; 12 Atl. Rep. (2d) 130; Cavanaugh v. Murphy Varnish Co., 130 N. J. L. 107; 31 Atl. Rep. (2d) 759; affirmed, 131 N. J. L. 163; 35 Atl. Rep. (2d) 896.

It is my conclusion and I find the more probable hypothesis to be that the injuries suffered by the petitioner in the accident so sustained by him on March 29th, 1943, were a competent producing cause of and contributing factor in the development of the abscess of the right lung with which the petitioner was suffering and for which he underwent surgical intervention.

The respondent furnished all medical treatment up to November 14th, 1943, including the three hospitalizations prior thereto. The petitioner seeks to charge the respondent with the cost of the subsequent medical treatment. Is the respondent liable therefor? The pertinent statute, R. S. 34:15-15; N. J. 8. A. 34:15-15, provides that “the employer shall not be liable for any amount expended by the employee * m= m: for any g-ncP physicians’ treatment and hospital services, unless such employee * * * shall have requested the employer to furnish the same and the employer shall have refused or neglected so to do, or unless the nature of the injury required such services, and the employer or his superintendent or foreman, having knowledge of such injury shall have neglected to provide the same, * * * or unless the circumstances are so peculiar as shall justify in the opinion of the "Workmen’s Compensation Bureau, the expenditure assumed by the employee for such physicians’ treatment or hospital services * *

In Bobertz v. Hillside Township, 126 N. J. L. 416; 19 Atl. Rep. (2d) 801, wherein medical expense had been incurred without requesting same of the respondent, it was held that the respondent by denying both the occurrence of an accident and causal relationship by implication disavowed responsibility for medical care even if notice had been given, and that the medical expense was properly chargeable against the respondent.

In Kardos v. American Smelting Co., 132 N. J. L. 579; 39 Atl. Rep. (2d) 509, the petitioner, a furnace man’s helper, contracted a bad cold and visited the plant doctor: a few days later he developed pneumonia and the plant doctor was summoned to his home, but upon arrival found petitioner’s own physician in attendance; three months later petitioner was hospitalized for bilateral tuberculous pleurisy, acute tonsilitis and catarrhal conjunctivitis, and expenses for which hospitalization was sought from the respondent. The court, in refusing to charge respondent with the same, stated that while it might be inferred that the company doctor knew of the pneumonia, his services were obviously not desired when he called at petitioner’s home; and that no notice had been given or knowledge had that hospitalization was necessary or proposed, as the condition with which petitioner was suffering when the company doctor called, was not such as to carry notice or knowledge of any of the ailments suffered by the petitioner three months later, for the treatment of which he was hospitalized.

In the instant ease, notwithstanding the general denial of accident notice, causal relationship, and disability due to accidental causes, it was stipulated that respondent had paid compensation for temporary disability from April 1st, 1943, to November 14th, 1943, as well as hospital bills of $568.25 for the three periods above mentioned. There is no evidence that petitioner requested any further medical treatment of the respondent after November, 1943. However,'it does appear that while petitioner was confined to the Cooper Hospital during the period beginning in January, 1945, he haring been admitted through the accident ward with the record disclosing no committing physician, he was visited by Dr. Shafer, the respondent’s physician, upon whose direction and under whose care he had been previously hospitalized, who talked with hospital physicians attending him, examined the hospital charts and made notes of petitioner’s condition and treatment. Even though these visitations by the doctor may have been made, as stated by him, in the course of his private practice, it cannot be denied that the information obtained from the patient’s hospital chart constituted knowledge of the condition of and treatment to the petitioner. Knowledge by a plant physician is knowledge by the respondent, General Cable Co. v. Levins, 124 N. J. L. 223; 11 Atl. Rep. (2d) 61.

When the various diagnoses of the ailment with which the petitioner was suffering while he was being treated by the respondent, namely; possible contusion of the liver; fractured rib; chest contusion; acute empyema; congestion of right lower lobe, made after X-rays of May 27th, 1943, disclosing a rather circumscribed area of opacity of the right lower and middle lobes with pleural exudate suggested and X-rays of June 7th, 1943 appearing much the same with the opacity not diminished; lobar pneumonia; and tumor of the right lung, made after bronchoscopic examination on September 18th, 1943, suggestive of tumor and X-rays showing opacity more discrete and circumscribed; are considered, together with knowledge of the treating physician as to the nature of the accident and the complaints of the petitioner while under his care, and his knowledge of the condition of and treatment to the petitioner obtained from the hospital chart in January, 1945, it would seem as if the respondent was in possession of all the facts concerning the case. Nowhere has it even been suggested that the operation was not necessary, and yet the respondent, being cognizant of all the above facts and having the opportunity when its physician visited the petitioner in the hospital in January, 1945, failed to provide any treatment, although obviously necessary. The testimony of the operating surgeon that the removal of the lung abscess has reduced materially the probable permanent disability resulting from the injury, strengthens my opinion that the circumstances of this case are so peculiar as to justify the expense of such treatment and the charging of the same against the respondent. Upon reflection, it would seem as if tire legislature envisioned just such circumstances when the above quoted provision was enacted.

The petitioner seeks compensation for temporary disability from November 14-th, 1943, to the present time and cites International Motors v. Purcell, 91 N. J. L. 707; 103 Atl. Rep. 860, in support of his contention. But a review of that case leads me to the conclusion that the principle stated therein is not applicable under the facts presented in this ease. In addition to the compensation for temporary disability paid in accordance with the stipulation, I find that the petitioner is entitled to receive compensation for temporary disability from January 13th, 1945, to the present time and that such period of temporary disability has not yet ended, since the operating surgeon stated that it would continue for four or five months from November 16th, 1945, the date of the taking of his depositions, and that such temporary disability shall continue after the date hereof until such time, within the statutory limitations, as it may hereafter be determined to have ended, upon application of either party to terminate the same and fix the extent of permanent disability, if any, resulting from said injury.

It is, therefore, * * * ordered that judgment be entered in favor of the petitioner and against the respondent. 4; $ $ $ $ $ *

R. Wayne Kraft,

Deputy Commissioner.


source: Caselaw Access Project

author: Bubling, C. C. J.

license: Public Domain

text:
    Atlantic County Circuit Court.
    BENJAMIN FRIEDBERG, PLAINTIFF, v. SIRACUSA COMPANY, A CORPORATION, DEFENDANT.
    Decided February 27, 1946.
    Eor the plaintiff, Lloyd, Horn & Perslde (by Herbert Horn).
    Eor the defendant, William Elmer Brown, Jr.

   Bubling, C. C. J.

Interrogatories were submitted by the plaintiff to the defendant as follows:

“1. Set forth all insurance written or placed for D. & E. Corporation and/or Hotel Knickerbocker Operating Company, stating when the same was placed, the type of insurance, the amount of the premium, the amount of the commission received or to be received by you, how long such insurance was in force in respect to each item.

“2. State when and where defendant agreed with an officer or officers of D. & E. Corporation to pay brokerage to plaintiff.”

Motion has been made to strike out plaintiff’s first interrogatory, upon the following reasons:

“(a) That the information thereby demanded is not such as is peculiarly within the knowledge of the defendant and is therefore not the proper subject for interrogatories.

“(b) The information thereby demanded is the private and confidential property of defendant;

“(c) The said demand is an improper unnecessary and illegal effort on the part of plaintiff to pry into the business and affairs of the defendant;

“(d) Plaintiff in any event .is not entitled to the information demanded until he first establishes the right to the benefit claimed by him under the contract as alleged in plaintiff’s complaint.

“(e) The information demanded is not necessary or essential to the preparation of plaintiff’s case for trial; and

“(f) Said demand is otherwise improper and illegal.”

It was conceded at the oral argument that, if the plaintiff establishes a right to recover, the information demanded is competent, relevant and material in establishing the plaintiff’s burden of proof as to damages.

The information is peculiarly within the knowledge of the defendant, particularly since the plaintiff did not contract with the defendant.

Purther resistence is based upon the reason that the information is private and confidential property of the defendant. It was conceded upon oral argument that the information would be subject to subpoena at the trial. R. S. 2:97-6. It is not a trade secret but merely private information relating to the ordinary commercial business of a fire insurance agent.

The defendant in this matter seeks a postponement of the answer to the trial and then only upon a prior determination of liability by the' court, despite the facts are in dispute. There is a discretion resting in the trial judge to regulate the order of proof. Abbotts Civil Jury Trials (5th ed.) 197; Bodee v. State (Court of Errors and Appeals, 1894), 57 N. J. L. 140; 30 Atl. Rep. 681; Crosby v. Wells (Court of Errors and Appeals, 1906), 73 N. J. L. 790; 67 Atl. Rep. 295; State v. James (Court of Errors and Appeals, 1921), 96 N. J. L. 132; 114 Atl. Rep. 553. Assuming but not admitting the discretion of the court extends, that far, I find no justification for resort to such an unusual practice in this case. ISTo evidence of bad faith is presented and no motion to strike the complaint as sham or frivolous was made herein.

The reasons advanced do not warrant the interposition of the court. The information sought is limited to April 19th, 1944, and thereafter.

Motion has also been made to strike out plaintiff’s second interrogatory, upon the following reasons:

“(a) That said demand is improper and illegal;

“(b) Said demand requests information which is not peculiarly within the knowledge of defendant.

“(e) The information thereby demanded is available to plaintiff from other sources and is subject to be produced at the trial of this cause by process of subpoena.

“(d) The information demanded is not necessary for the preparation of plaintiff’s case for trial;

“(e) The information demanded has no relation to the plaintiff’s case as set forth in the pleadings filed herein;

“(f) The information demanded is already contained in and a part of the answer of the defendant filed herein; and

“(g) Said demand requests information which is not relevant or material to the issues as framed in this suit.”

In view of the allegations of the answer, the motion to strike the second interrogatory is granted.

Appropriate rule may be presented.


author: Leyden, C. 0. J.

text:
    HAROLD R. SHERWOOD AND ELLIOT UNDERWOOD, PLAINTIFFS, v. BERGEN-HACKENSACK SANITARY SEWER AUTHORITY, A BODY POLITIC AND CORPORATE OE THE STATE OF NEW JERSEY; COUNTY OF BERGEN, A BODY POLITIC AND CORPORATE OF THE STATE OP NEW JERSEY; A. THEODORE HOLMES, AS TREASURER OF THE COUNTY OF BERGEN, AND WALTER D. VAN RIPER, AS ATTORNEY-GENERAL OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Decided March 8, 1946.

      For the plaintiffs, L. Stanley Ford.

    For the defendants County of Bergen and A. Theodore Holmes, as treasurer of the County of Bergen, Milton T. Lasher.

    For the defendant Bergen-Hackensack Sanitary Sewer District Authority, Walter H. Jones.

    For Walter D. Van Riper, Attorney-General, Walter D. Van Riper, per se (Joseph Lanigan, of counsel).
   Leyden, C. 0. J.

Plaintiffs, taxpayers in Bergen County, one resident within the other without the proposed BergenHackensack Sanitary Sewer District, seek a judgment under the provisions of R. S. 2 :26-66, et seq.; N. J. 8. A. 2:26-66, determining the validity of an act of the legislature entitled; “An act creating the Bergen-Hackensack Sanitary Sewer District, creating an authority to manage the same, and prescribing the powers and duties thereof and of other public bodies in connection with the construction and operation of sewers and sewage disposal facilities in said district, and providing ways and means for paying the costs of construction and operation thereof, and to repeal chapter fifteen of Title 58 of the Revised Statutes,” approved May 3d, 1945 (chapter 300 of the Public Laws, 1945; R. S. 58:15A-1, et seq.; N. J. 8. A. 58:15A—1, et seq., and declaring the rights and status of the plaintiffs thereunder (B. 8. % :26-69; N. J. 8. A. 2:26-69) and further declaring (1) that the purported act of the legislature is unconstitutional and void in that it contravenes paragraph 9, section 7, article 4 of the Constitution of the State of Hew Jersey (IV. J. 8. A.) providing “Ho private, special, or local bill shall be passed, unless public notice of the intention to apply therefor, and of the general object thereof, shall have been previously given. * * *,” and (2) that the act is unconstitutional and void in that it contravenes paragraph 11, section 7, article 4 of the Constitution of the State of Hew Jersey providing “The legislature shall not pass private, local or special laws in any of the following enumerated cases, that is to say: * * * Eegulating the internal affairs of towns and counties; appointing local offices or commissions to regulate municipal affairs,” and (3) that the County of Bergen and A. Theodore Holmes, treasurer of said county, have no authority or right to pay to the defendant Sewer Authority, and it has no right to receive from the County of Bergen any sums of money to temporarily finance the affairs of the Authority, in violation of paragraph 19, article 1 of the Constitution of the State of Hew Jersey providing “Ho county, city, borough, town, township or village shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association or corporation, * * *,” and (4) that the Sewer Authority has no right or authority to enter into contracts pursuant to the said act, and (5) that no tases shall be levied upon the property of the plaintiffs, any portion of which shall provide for the payment to the defendant Sewer Authority.

The pollution of the Hackensack Eiver by sewage and industrial wastes has been a matter of grave public concern for many years. Prom time to time during the past nineteen years the problem in its various phases has been studied, with the ultimate view of eliminating the pollution. In 1926 by chapter 173 of the Public Laws the legislature prohibited the pollution of the river above the mouth of Bellmans Creek and placed the enforcement thereof in the hands of the State Department of Health, B. 8. 58:10-42, et seq.; N. J. 8. A. 58 :10-42. In 1930 by chapter 144 of the Public Laws, N. J. 8. A. 58 :15-72, the Hackensack Yalley Sewerage District was created to provide a plan for the prevention of the pollution of the river and its tributaries. In 1931 by chapter 178 of the Public Laws, N. J. 8. A. 58:15—72, the enforcement of the 1926 statute was restrained pending the submission of the report provided for in the 1930 statute and until after May 1st, 1932. In 1932 by chapter 129 of the Public Laws, N. J. 8. A. 58:15—72, the commission theretofore appointed for the purpose of making investigations, recommendations and the preparation of proposed contract or contracts to carry out the plans theretofore prepared for the relief and prevention of the pollution of the Hackensack Eiver was continued, and the enforcement of the act of 1926 prohibiting the pollution of the river was further restrained until May 1st, 1933. In 1933 by chapter 288 of the Public Laws, N. J. 8. A. 58:15-72, the legislature, in pointing out that the prevention of the pollution and the reasonable purification of the Hackensack Eiver and its tributaries materially affects conditions in Hew York Harbor and Hew York Bay and was a matter of state interest, abolished the commission theretofore functioning under chapter 144, Pamph. L. 1930, and provided for the appointment of four commissioners by the Governor with the advice and consent of the senate, to be known as “Hackensack Eiver Sewerage Commission,” and further restrained the enforcement of the act of 1926 until May 1st, 1935. Also in 1933 by chapter 373 of the Public Laws (B. 8. 58:15-1, et seq.; N. J. 8. A. 58:15—1, et seq.) the Hackensack Eiver Sewerage District with an Authority to maintain the same was created. And lastly, in 1945, the legislature by chapter 300 of the Public Laws (B. 8. 58 :15A-1, et seq.; N-. J. 8. A. 58:15A—1, et seq.), the validity of which act is now questioned, created the Bergen-Hackensack Sanitary Sewer District. By the act the legislature constitutes all those municipalities now or hereafter existing, all or parts of which are situated and lie within the natural drainage area of the Hackensack Eiver and its tributaries, between the boundary line of Hudson and Bergen Counties and the boundary line between the States of Hew Jersey and Hew York, a sewerage district under the name and title of Bergen-Hackensack Sanitary Sewer District. Forty-nine presently existing municipalities in Bergen County are mentioned by name.

The Bergen-Hackensack Sanitary Sewer District Authority consisting of five members resident within the sewer district, to be appointed by the board of chosen freeholders of Bergen County, is created and constituted a body politic and corporate with perpetual succession as a governmental instrumentality for the purpose, among others, of the protection of public safety, health and welfare, with power to sue and be sued, to adopt and use a corporate seal, to borrow money or contract debt, to issue negotiable bonds and to provide for the rights of the holders thereof, and with the right, power and authority to acquire, use, hold and dispose of all property, real and personal, and to make and perform all contracts and do all acts and things and with all other powers, proper or necessary, to design, finance, construct, acquire and operate such a system of trunk, intercepting and outlet sewers, pumping and ventilating stations, treatment plants and other plants and structures as in its judgment will provide the most effectual and advantageous plan or method for relieving the Hackensack Biver, and its tributaries and other rivers and streams, whether navigable or otherwise, within the sewer district, from pollution and for preventing pollution of the same and for carrying out and effectuating the purposes and plan provided for. Municipalities within the district are prohibited from entering into contracts or agreements for the construction or operation of sewage disposal plants or other sewerage facilities for the use of more than one municipality except upon the written consent and approval of the Authority. The Authority is directed, with all practical speed, to prepare a project report with maps, designs and costs which shall show a proposed plan or method of construction of the district sewer system, which project report must be submitted to the State Board of Health for approval of the proposed district sewer system as a sanitary measure. The Authority is authorized to negotiate and enter into contracts with municipalities and private sewer companies and industries within the sewer district, and with other municipalities and private sewer companies which may be discharging sewage directly or indirectly into the Hackensack Eiver or its tributaries and which might advantageously use the facilities of the district sewer system, but any municipality not entering into a contract with the Authority may construct its own sewage disposal plant for its own sole use. Ho municipality in the drainage area of the Hackensack Eiver is excluded from the benefits of the act, or denied the right to contract with the Authority for the disposal of its sewage. Industries within the district may so contract.

The County of Bergen is authorized to pay such amounts as may be agreed upon on the orders of the Authority, for the purpose of assuring money to pay its costs and expenses in preparing the project report and of doing all other acts and things authorized by the act up to the time of the commencement of the construction or acquisition of the district sewer system. The money so advanced by the freeholders of Bergen County shall be repaid by the Authority out of the proceeds of the sale of any bonds which may be issued by the Authority.

An examination of the entire act, as by a reference to the provisions thereof it will more particularly appear, discloses a governmental scheme for the elimination of the pollution of the Hackensack Eiver within the district, in the protection and promotion of the public health, safety and general welfare. The purpose of the act is to provide the means, within the designated area, of establishing, maintaining and operating a public work for the public purpose of taking up the problem of the disposal of sewage of each named municipality at the point where that municipality lays it down, through a proposed instrumentality of the state.

The dispositive question is whether this enactment is obviously a private, special or local bill within the constitutional interdiction.

“As applied to legislation of this character a law is special or local, as contradistinguished from general, in the sense of the prohibitory clauses in this paragraph of the constitution, which embraces less than the entire class of persons or places to whose condition such legislation would be necessary or appropriate, having regard to the purpose for which the legislation was designed. A law which so particularizes, and, by such means is restricted in its operation to persons or places which do not comprise all the objects which naturally belong to the class, is special or local, within the meaning of the constitutional interdict.” State v. Somers Point, 52 N. J. L. 32; 18 Atl. Rep. 694.

“A law is special in a constitutional sense when, by force of an inherent limitation, it arbitrarily separates some persons, places or things from others upon which, but for such limitation, it would operate. The test of a special law is the appropriateness of its provisions to the objects that it excludes. It is not, therefore, what a law includes that makes it special, but what it excludes. If nothing be excluded that should be contained the law is general. Within this distinction between a special and a general law the question in every case is whether any appropriate object is excluded to which the law, but for its limitations, would apply. If the only limitation contained in a law is a legitimate classification of its objects it is a general law. Hence, if the object of a law have characteristics so distinct as reasonably to form, for the purpose legislated upon, a class by itself, the law is general, notwithstanding it operates upon a single object only; for a law is not general because it operates upon every person in the state, but because every person that can be brought within its predicament becomes subject to its operation.” Budd v. Hancock, Comptroller, 66 N. J. L. 133; 48 Atl. Rep. 1023.

“Interdicted local and special laws aTe all those that rest on a false or deficient classification; their vice is that they do not embrace all of the class to which they are naturally related; they create preference and establish inequalities; they apply to persons, things or places possessed of certain qualities or situations, and exclude from their effect other persons, things or places which are not dissimilar in these respects.” Van Riper v. Parsons, 40 N. J. L. 1.

“The purpose of the prohibition against ‘special or local’ laws is not to prevent legislation where there is but ons individual to be dealt with. The purpose is to prevent unfounded discrimination where there are two or more individuals to be dealt with.” Van Cleve v. Passaic Valley Sewerage Commissioners, 71 N. J. L. 183; 58 Atl. Rep. 571.

“The tost of the generality of a law adopted is that it shall embrace all and exclude none whose conditions and wants render such legislation equally appropriate to them as a class. * * * The question whether any particular statute is local or special must be determined not upon its compliance with a legislative classification, but upon whether, having regard to the character of the legislation and the limitation upon it contained in the act, the statute is or is not a general law as defined by the courts.

“ ‘In determining whether this act is general, within this meaning (that is, whether the class is composed of all municipalities which, considering the purposes of the legislation, are distinguished from others by qualities or characteristics such as to make the legislation appropriate to them and inappropriate to others), its purpose is first to be considered, and it is then to bo determined whether the municipalities on which it operates have substantial distinctions segregating them from other municipalities, and evincing that such legislation is germane to them and not to others.’ In every case the primary consideration in the process of determining whether a particular law, local or special on its face, is a general law in the sense of the constitution is the consideration whether the classification adopted is based on those substantial grounds which justify the limitation of its enactments to one set of municipal bodies and the exclusion of others.” Warner v. Hoos, 60 N. J. L. 482; 38 Atl. Rep. 449.

The sewerage district created by the act does not embrace the entire natural drainage area of the Hackensack Eiver within the State of Hew Jersey. It designates a smaller area through which a segment of the river runs, and sets it apart as a sewer district in which pollution of the river is to be eliminated. By its terms it excludes the remaining drainage area and the municipalities located therein, to which although but for the limitation, the objects, purposes and provisions of the act would manifestly be appropriate. If the sewerage district set apart for this laudable purpose embraced the drainage area of the river for its full length within the state, it would not be difficult to demonstrate that the territory drained by the river, its population, the river itself, its course, tidal flow, the quality and quantity of its pollution and other characteristics, present a unique and exceptional problem justifying special treatment, and the act would undoubtedly be considered a general one, though local in its application, and therefore constitutionally unobjectionable under the authority of Van Cleve v. Passaic Valley Sewerage Commissioners, 71 N. J. L. 183; 58 Atl. Rep. 571; 71 N. J. L. 574; 60 Atl. Rep. 214. But the act in question arbitrarily excludes from the sewerage district comparable persons, places or things having the same, certainly not dissimilar, qualities and situations, namely, the drainage area and the municipalities south of the boundary line between the counties of Bergen and Hudson, to which the objects, purposes and provisions of the act are appropriate. See Board of Tenement House Supervision v. Mittleman, 104 N. J. L. 486; 141 Atl. Rep. 571. The appropriateness of its provisions to the other areas and municipalities outside the sewerage district but within the natural drainage area of the river is recognized in the act itself in section 33, wherein it grants to the Authority the power to negotiate and enter into contracts with any other municipality not within the district which may be discharging sewage into the river or its tributaries and which might advantageously use the facilities of the proposed district sewer system. The act, therefore, in so far as it attempts to create the Bergen-Hackensact Sewer District, comes within the judicial definitions of a special or local law, and since it is conceded by all parties that no public notice of intention to apply for the enactment thereof was given previously to its passage, pursuant to the constitution and R. S. 1:6—1, et seq.; N. J. S. A. 1:6-1, et seq., the act contravenes paragraph 9, section 7, article 4 of the constitution and is void. Taking this view, it becomes unnecessary to determine whether the act violates paragraph 11, section 7, article 4 and paragraph 19, article 1 of the constitution.

A postea, pursuant to Supreme Court rule 113, N. J. S. A. tit. 2, containing any necessary finding of fact and the determination of the points of law involved in the decision, may be prepared.


author: Delaney, C. P. 3.

text:
    Passaic County Court of Common Pleas.
    VITO SASSARRO, PETITIONER-APPELLANT, v. WRIGHT AERONAUTICAL CORPORATION, DEFENDANT-APPELLEE.
    Decided February 26, 1946.
    For the petitioner-appellant, Nathan Rabinowitz and Isidore Rabinowitz.

    For the respondent-appellee, John W. Taylor.

   Delaney, C. P. 3.

This is an appeal from a judgment of the Workmen’s Compensation Bureau dismissing, on motion and after argument, petitioner’s (second) formal claim petition.

An earlier petition resulted, after formal hearing, in a judgment in petitioner’s favor, the Bureau adjudging that as a result of an accident the petitioner had received injuries to both hands, causing him “a disability permanent in quality and partial in character, which is as follows: 20% of total or 100 weeks.” The petitioner claimed no temporary disability in that proceeding, and the Bureau found and allowed none. Formal award was made on July 17th, 1944. On February 24th, 1845, and within two years of the date of the last payment of compensation for his permanent disability, petitioner filed the petition now in question.

The petition declares: “This petition is filed for recurrent temporary disability and reimbursement of medical expenses incurred by reason of operation performed upon petitioner’s hands,” and the period of temporary disability is alleged to have run from January 3d, 1945, to February 19th, 1945.

Bespondent’s answer, in our view of the matter, requires little attention. It denied that since the award of July 17th, 1944, petitioner had suffered any increase of disability; it asserted that petitioner’s subsequent operation, with its attendant surgical and hospital charges, was unauthorized either by respondent or the Workmen’s Compensation Bureau; it denied jurisdiction in the Bureau over the matters set up in the petition on the ground that it failed to state or disclose a ground for review under B. 8. 34:15-27; N. J. 8. A. 34:15-27; and declared that the matters and things contained in the petition were res adjudicata by reason of the judgment under the former petition.

Bespondent thereupon duly served on petitioner notice of a motion to dismiss the petition on the ground that because it failed to disclose a ease for review under B. S. 34:15-27; N. J. 8. A. 34:15-27, the Bureau had no jurisdiction over it, and on the further ground that the matters raised in it were res adjudicata because of the award of July 17th, 1944.

This motion was pressed and argued in the Bureau, the respondent prevailing and the petitioner’s petition being dismissed, and from that order of dismissal petitioner, as hereinbefore stated, has appealed.

On one point the opposing counsel agree, namely, that the dismissed petition, “filed for recurring temporary disability and reimbursement of medical expenses incurred by reason of operation performed” since the judgment of July 17th, 1944, had no legal footing in B. 8. 34:15-27; N. J. 8. A. 34:15-27. That section, as far as here pertinent, reads:

“A formal award may be reviewed within two years from the date when the injured person last received a payment, upon the application of either party on the ground that the incapacity of the injured employee has subsequently increased. An award may be reviewed at any time on the ground that the disability has diminished.”

Counsel for respondent argued that since permanent disability is susceptible both of increase and diminution, the “incapacity” and “disability” in the section mentioned mean permanent incapacity and permanent disability; and in this view counsel for petitioner unqualifiedly concur. They not only concur, but emphatically assert that the petition in question is not a petition for review in any sense at all, but is an original petition for an additional award “for recurring temporary disability and medical expense.” They say that the petitioner “seeks no modification of the original award” and “is not contesting the quantum, of the award and is not claiming an increase of his 20% disability.”

Counsel for petitioner point to no express statutory basis for the proceeding, but argue that authority for it may be fairly implied from the act relating to workmen’s compensation, and particularly from B. 8. 34:15-12; N. J. S. A. 34:15-12, and insist that until “the three hundred weeks”— the maximum period for the payment of compensation for temporary disability—have been “absorbed,” petitioner may claim from time to time for recurring temporary disability if he files his petition therefor within time, that is, “within two years from the date when the injured party last received payment”-—words of limitation, by the way, which they borrow from the identical section, B. 8. 34:15-27; N. J. 8. A. 34:15-27, which they repudiate as authority for the petition in question. They argue that there is nothing in B. 8. 34:15-12; N. J. 8. A. 34:15-12 indicating that temporary disability need be consecutive, and that it may be, in fact, intermittent or broken.

The concluding sentence of B. 8. 34:15-12; N. J. 8. A. 34:15-12, however, reads as follows:

“This compensation (i. e., temporary compensation) shall be paid during the period of such disability, not, however, beyond three hundred weeks.”

If the legislature had contemplated, not a single waiting period (as it is elsewhere called in the act) but a possible succession of such periods, it seems to be singular that they have chosen words “during the period of such disability,” instead of the words “during the period or periods of such disability.”

There are two sections, containing either a sentence or a phrase which may be pertinent to the matter in hand, to which counsel for neither party have alluded. The last sentence in B. 8. 34:15-58; If. J. 8. A. 34:15-58, reads:

“The judgment of the Bureau shall be final and conclusive between the parties and shall bar any subsequent action or proceeding, unless reopened by the Bureau or appealed as hereinafter provided.”

The appeal, of course, is found in B. 8. 34:15-66; If. <7. 8. A. 34:15-66, as amended, Pamph. L. 1945, ch. 74, § 17; If. J. 8. A. 34:15-66, and is to the Court of Common Pleas, preserving the jurisdiction of the Supreme Court to review questions of law and fact by certiorari> and appeals from the judgment of that court to the Court of Errors and Appeals. The re-opening of the judgment by the Bureau is provided for in B. 8. 34:15-57; If. J. 8. A. 34:15-57, which declares:

“The Commissioner, each Deputy Commissioner, and each Eeferee, is hereby authorized to hear and determine the matter in dispute in a summary manner, and each shall have power to modify any award of compensation and to provide ■ for the commutation of any such award.”

The “power to modify” in this section has been construed in Katz v. Zepela, 10 N. J. Mis. R. 258; 159 Atl. Rep. 306; affirmed, 110 N. J. L. 14; 163 Atl. Rep. 662, where it is held, in substance, that the Workmen’s Compensation Bureau has the like discretionary power over its own judgments as is inherent in other courts. If the last section above quoted is applicable to the instant matter, it vests in the Workmen’s Compensation Bureau, not an absolute duty, but a discretionary power. In the peculiar circumstances of the present case, I cannot find that, in refusing to entertain the petition in question and hear it on its merits, judicial discretion has been abused.

Bespondent’s original brief states that on the argument in the Bureau to dismiss, counsel for petitioner informed the Commissioner, in substance, that the operation, for the expenses of which compensation was claimed, had been beneficial to the petitioner and his permanent disability thereby reduced. In the replying brief of counsel for the petitioner, the statement imputed to them is not denied. The contents of the petition itself are not without significance; cautiously and expressly it limits its claim to compensation for temporary disability only and to surgeon’s and hospital expenses. The opinion on file by the Deputy Commissioner who heard the argument and dismissed the petition, shows that his understanding was that the permanent disability, for which the petitioner had been fully paid, was substantially reduced by the operation.

Money paid by an employer to an employee in pursuance of an award lies beyond recovery; there is no provision in the act for its return; and this petitioner seems to have been compensated for a permanent disability beyond his present incapacity.

I have examined the cases cited in the briefs of counsel and find none of them to be dispositive of the case in hand, and find no occasion to discuss them.

Binding no provision in the Workmen’s Compensation Act expressly authorizing, in the circumstances of this case, the dismissed petition and nothing from which such authority may be reasonably implied, I conclude the judgment of dismissal should be affirmed, and such will be the order.


author: Burling, C. C. J.

text:
    Atlantic County Circuit Court.
    WILLIAM HENRY WILLIS, PLAINTIFF, v. SHORE YELLOW CAB CO., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided February 27, 1946.
    Por the plaintiff, John B. Baratía.

    Por the defendant, Albert N. Shahadi (by Harry Miller).

   Burling, C. C. J.

Motion has been made to strike the complaint in the above cause of action on the ground that the same does not set forth a good and sufficient cause of action against the defendant.

The notice of motion violates the rules of practice relating to such a motion in that it does not assign the reasons. Dunn v. Chernewski (Supreme Court, 1924), 101 N. J. L. 27; 127 Atl. Rep. 338. However, upon the oral argument of the motion, it was addressed to the fact that the complaint charges the defendant as a corporation with actionable negligence and there are no allegations that the negligence of the defendant corporation was a result of the acts of an agent and servant in the course of an employment.

The Practice Act of 1912 is modeled after that of Connecticut. (HaHshorne’s Practice Act 1912 Introduction.') The Practice Act of 1912 (now incorporated in the Eevised Statutes, N. J. 8. A. 2:27-1, et seq.) established a system of pleading founded on rules of court. That act prescribed rules of court. These were tentative rules to be effective until modified by the Supreme Court. In 1913 the Supreme Court promulgated permanent rules. These rules, with subsequent amendments, regulate pleadings unless the matter is covered by statutory provisions. (Bradner New Jersey Law Practice 97) rule 21 annexed to the Practice Act of 1912 now rule 35 (Supreme Court Eules Eevision 1938; N. J. 8. A. tit. 2) reads as follows:

“Acts and contracts may be stated according to their legal effect, but, in so doing, the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove; thus, an act or promise of a principal {other than a corporation), if, in fact, proceeding from an agent known to the pleader, should be so stated; and the obligation of a husband to pay for necessaries furnished to his wife, whom he has driven from his house, should be stated according to the facts. (Italics mine.)

Of the Connecticut counterpart of Supreme Court rule 35, the Supreme Court of Errors of Connecticut says, in Vincent v. S. Alexander Sons Co. {Supreme Court of Errors of Connecticut, 1912), 85 Conn. 512; 84 Atl. Rep. 84, 85:

“(6) The remaining exceptions relate to rulings upon questions of evidence. The defendant objected to the plaintiff’s evidence tending to show that he and Cushing were employed by the defendant through the agency of Sydney A. Alexander, upon the ground that it was not alleged in the complaint that the employment was through an agent. The admission of this evidence is claimed to be in violation of section 144 of the rules under the Practice Act. Practice Book, page 244. The rule referred to provides that £an act or promise by a principal (other than a corporation) if proceeding from an agent known to the pleader should be so stated/ Corporations always act through agents. They are excepted from the rule requiring that the fact that a contract was made through an agent be stated.”

Tomlin v. Hildredth (Supreme Court, 1900), 65 N. J. L. 438; 47 Atl. Rep. 469, relied upon by the defendant was decided in 1900, and prior to the act of 1912, and its finding must yield thereto.

Though in my opinion its omission would not be a fatal defect, it is unwise to idly raise a point of law when to remove any doubt time-honored phrases may be used. Hand v. Hand (Atlantic County Circuit Court, 1945), 23 N. J. Mis. R. 118 (at p. 122); 41 Atl. Rep. (2d) 270. An examination of Sheen’s New Jersey Practice Act, Edition 1916 and the forms of complaint therein set forth relating to causes of actions instituted after the effective date of the act discloses that in most instances, the action of the corporation through its agent and servant is so alleged. (Pages 391, 419, 447, 485.)

The motion is denied, and appropriate rule may be presented*


author: Bowers, J.

text:
    Warren County Orphans Court.
    IN THE MATTER OF THE ESTATE OF SAMUEL V. GARRIS, DECEASED.
    Decided February 5, 1946.

      For the exceptant, Harry Runyon.

    For the accountants, Joseph W. Roséberry and Wilbur M. Rush.

   Bowers, J.

Joseph W. Boseberry and Anna Kimble, two of the three executors named in the last will and testament and codicil thereto of Samuel V. Garris, deceased, they having duly qualified as such executors of the last will and testament of Samuel V. Garris, deceased, who died on June 21st, 1944, filed their account as such executors, to which account Emmett Garris, remainderman under the terms of the last will and testament of Samuel Y. Garris, deceased, has filed nineteen exceptions, which will be considered in their order.

In and by the first exception, exceptant claims that the accounting has been made and filed in the names of Joseph W. Boseberry and Anna Kimble as executors without the joining in or consenting to said accounting of Myrtle Garris, the other executrix named in the last will and testament of Samuel Y. Garris, deceased.

The said Myrtle Garris was named one of the executors in the codicil to the will of the said Samuel Y. Garris. It appeared at the hearing that Myrtle Garris is now married and her present name is Myrtle Garris Gordon. Testimony at the hearing disclosed that Mrs. Gordon was residing, at the time of the demise of Mr. Garris, at Bolling Hills, Alberta, Canada, some three thousand miles from the county seat of Warren County.

Evidence was presented that Joseph W. Boseberry, Esq., one of the executors and proctor for the estate, notified her of the death of Mr. Garris by letter on June 29th, 1944. The said Samuel V. Garris died on June 21st, 1944. Evidence showed that Mrs. Garris consulted an attorney named 0. H. Powlett, Esq., who likewise wrote to Mr. Roseberry for information, to which he replied. There was definite evidence that Mr. Roseberry wrote to Mrs. Gordon on June 24th, 1944, to her attorney, C. H. Powlett, Esq., on July 6th, July 25th and August 18th, 1944, and again to Mrs. Gordon on September 2d, October 9th and December 9th, 1944, and on June 30th, 1945, in which communications the assets of the estate were disclosed and indicated Mrs. Gordon’s rights under the will and codicil. In Mr. Roseberry’s letters, he disclosed that she had a right to become one of the executors of the estate.

I am of the opinion that Mrs. Gordon did not take advantage of the information given her and showed no inclination to become an executrix of the estate, because, even on June 6th, 1945, at the trial, in answer to a question directed to her in the following language, “Is it your desire to become an executrix of this estate?” her answer was, “Well, I want to see what is going to be done now.”

This was nearly a year after the death of Mr. Garris and nearly ten months after the will was admitted to probate on or about August 16th, 1944.

In the ease of Donnelly v. Slaughter, 114 N. J. Eq. 302; 168 Atl. Rep. 762, and affirmed by the Court of Errors and Appeals, 116 N. J. Eq. 542; 174 Atl. Rep. 507, it is held that the mere nomination of a person by a testator does not constitute that person an executor nor- must he accept the trust.

Mrs. Gordon made no sincere attempt to become one of the executors and certainly Mrs. Kimble and Mr. Roseberry were not required to wait many months until she made up her mind to qualify or give them a definite decision. It, therefore, being apparent that the said Myrtle Garris, now Myrtle Garris Gordon, not having qualified as an executrix, it was not proper for her to join in or consent to the account filed by the qualified executors, this exception, therefore, will be overruled.

In and by the second exception, exceptant states that the proceeds of the sale of real estate situate in Wallpack Township, Sussex County, New Jersey, sold to one Virginia N. Bartow for $1,500 does not represent the full value of said real estate.

Before the executors sold this property, they had it appraised by one William M. Cornwall, a licensed real estate broker of New Jersey, who stated that the house on the premises was in poor condition, needed repairs, and that the fair value would be $1,500. The affidavit signed by Mr. Cornwall stated that the premises was assessed for $900.

There was nothing in the testimony at the hearing which would indicate that the consideration was not fair in this ease, and, therefore, this exception will be overruled.

In and by the third exception, exceptant states that the proceeds of the sale of real estate situate in Knowlton Township, Warren County, New Jersey, sold to one Warren Both for $8,000, does not represent the full value of said real estate.

The executors had negotiated the sale for $8,000 to Mr. Both but, before consummating the transaction, they had two duly licensed real estate brokers of New Jersey place a value on the premises. They were William M. Cornwall and Levi V. Mather, both of the County of Warren. They testified that the consideration was fair, inasmuch as the premises were in poor condition.

The exceptant presented testimony of two duly licensed real' estate brokers, who stated that the value of the premises was more than $8,000. There was not sufficient evidence to indicate that the consideration of $8,000 was unfair.

Executors, like ordinary men of good faith, must act with ordinary discretion and within the scope of their powers. If they use ordinary prudence and caution and act in good faith, they are free from being surcharged for their acts. Corn Exchange National Bank, 109 N. J. Eq. 169; 156 Atl. Rep. 455; Heisler v. Sharpe’s Ex’rs, 44 N. J. Eq. 167; 14 Atl. Rep. 624.

I find that the executors did act in a reasonable manner and exercised caution in having the premises appraised before consummating the sale. Therefore, this exception will be overruled.

In and by the fourth exception, exceptant states that the proceeds of a sale of a wood lot in Pahaquarry Township, Warren County, to Elizabeth C. Sterrit for the sum of $200, was inadequate. This property was assessed for $160 and it appears that it had been sold for $200 but the party failed to go through with his offer. Finally the executors sold the same for $200.

There is nothing to indicate from the testimony that the executors acted in bad faith nor in any other manner than that of a reasonably cautious person in the sale of said lands. Therefore, this exception will be overruled.

In and by the fifth exception, exceptant states that the proceeds of the sale of real estate known as the Jacksonburg property in Blairstown Township, Warren County, Hew Jersey, to one Samuel Snover for the sum of $769.09, was unjust and erroneous. This property was assessed for $400 and, before concluding the sale, a real estate broker, William M. Cornwall, appraised the premises at $800.

The testimony would indicate that the consideration was fair and, since the executors used reasonable judgment and approached the matter with caution, this exception, therefore, will be overruled.

In and by the sixth exception, exceptant states that the accountants charged themselves with the payment of $90 on a note given by Mrs. C. Morton and had not collected the balance. The testimony showed that the principal amount was $416 with interest and that $90 had been collected; that the note represented rent from the Bayonne, Hew Jersey, property.

The Executor Koseberry stated that he was still pressing for payment, and since there is no evidence of negligence and the executors still continuing as trustees and continuing to administer the assets of the estate, this exception will be overruled.

In and by the seventh exception, exceptant states that the-accountants failed to charge themselves with certain listed mortgages, they being three in number and given by Charles H. Sliker et ux. for $100, Asa Losey for $500 and Frank B. Losey for $500. The account shows that these mortgages were voluntarily paid off to the estate by the owners of the properties mortgaged and, therefore, this exception will be overruled.

In and by the eighth exception, exceptant states that the bond and mortgage given by Warren Eoth to the estate of Samuel Y. Garris on the Hainesburg Hotel property in the sum of $6,000 was not in proper legal form and not consented to or agreed to by the three executors and is not a proper legal investment.

The evidence discloses that two of the executors agreed to take the mortgage and the third one named in the codicil to decedent’s will, Mrs. Gordon, had not authority to object as she did not qualify as executrix or trustee.

Six thousand dollars was not an illegal sum to invest from the funds of the estate in this property, sold for $8,000. N. J. 8. A. 3 :16-1 i (a) authorizes a fiduciary, if authorized in the will, to sell real estate, to take back a bond of the purchaser secured by a mortgage on the real estate conveyed to an extent not exceeding eighty per cent, of the sale price. Six thousand dollars, being less than eighty per cent, of the $8,000 sale price, gives these executors authority to consummate such a transaction. The will authorizes them to sell real estate and also to invest the funds of the estate. The phraseology of the mortgage instrument, although not in skillful language, nevertheless, seems to be a binding instrument. Therefore, this exception will bo overruled.

In and by the ninth exception, exceptant stated that accountants sold certain household goods for a total sum of $6.85 previous to the taking of the inventory.

At the trial, the items were mentioned and seemed to consist of inexpensive small items and had only a nominal value. The court does not believe the estate suffered any loss through this rather hasty procedure. Lex non curat de minimis (the law cares not about trifles). Therefore, this exception will be overruled.

In and by the tenth exception, exceptant states that certain articles of jewelry, especially a silver and gold watch, were not inventoried. Testimony proved that exceptant himself received the gold watch and the silver watch was produced at the hearing. They being in evidence and acknowledged as a part of the estate, there is no alternative than to overrule this exception.

In and by the eleventh exception, exceptant stated that the decedent had in his possession at his death $250 in cash. This appeared to be a surmise on the part of the exceptant, as no evidence was presented other than that of Mrs. Kimble, who testified that decedent had but $50 in his clothes at the time that he died and that this was duly deposited in the First National Bank of Blairstown to the credit of the estate. Therefore, this exception will be overruled.

In and by the twelfth exception, exceptant states that furniture in the amount of $201.20 in the Hainesburg Hotel was lost to the estate because it went along with the real estate sold to Warren Both in the transfer of the Hainesburg Hotel to him. The accountants testified that the furniture went with the hotel property and that the sale price of $8,000 covering the Hainesburg Hotel sale included the furniture, which had been itemized at $201.20. It was a part of the transaction. This exception, therefore, will be overruled.

In and by the thirteenth exception, exceptant states that the accountants have not charged themselves with the total income received from the corpus of said estate. This item was not pressed at the hearing and, therefore, this exception will be overruled.

In and by the fourteenth exception, exceptant states that the $150 paid to George Kimble, husband of Anna Kimble, one of the executors, for board and lodging was an unjust and erroneous expenditure by the executors. The hearing disclosed that the testator resided with the Kimbles for about seven weeks prior to his demise, that he had a malignant disease and was cared for by members of the Kimble family. He died at their home.

From the evidence, this court is satisfied that a charge in this amount is not unreasonable. It is not a ease of mere board to a healthy man, able to care for himself, but, on the other hand was board, lodging and included unpleasant personal attention by members of the Kimble family in earing for one who was terribly ill. There is nothing to indicate that the charge was excessive. This exception, therefore, will be overruled.

In and by the fifteenth exception, exceptant states that accountants paid to the Executrix Kimble $30, which was unjust.

This expenditure was apparently to reimburse Mrs. Kimble for trips to court in connection with the trial on the caveat filed in connection with the will of decedent. There is nothing to indicate that the charges were unfair or exorbitant. Mrs. Kimble was compelled to come to court through action by others in seeking to prevent the probate of the will of decedent. She should not be expected to pay her own expenses. Although the amount has not been actually paid to her, it seems proper that she be reimbursed for expenses that were not caused through any fault of her own. Therefore, this exception will be overruled.

In and by the sixteenth exception, exceptant states that accountants filed an inventory showing $2,102.10, which was not a correct or proper total of the inventory as appraised by the executors. It seems that the only trouble with this item is that a typographical error of $98.90 was made in addition, which was rectified in an adjustment in the final account. Therefore, this exception will be overruled.

In and by the seventeenth exception, exceptant states that accountants failed to correctly and properly list a complete statement of assets remaining in their hands. The testimony, and likewise the accounting, appears to be in order, listing the assets of the estate, and no testimony appears that would be contradictory. Therefore, this exception will be overruled.

In and by the eighteenth exception, exceptant states that accountants are praying from commission on $8,000, representing the proceeds of the sale of the Hainesburg Hotel property, to which they are not legally entitled. This, of course, is not correct, because B. 8. 3:11-2; N. J. 8. A. 3:11—2, authorizes executors to take commissions on a statutory basis and further authorizes the taking of commissions on real estate passing through their hands. B. 8. 3:11—2.1; N. J. 8. A. 3:11—2.1. This exception, therefore, will be overruled.

In and by the nineteenth exception, exceptant states that accountants have disposed of real estate owned by decedent contrary to the provisions of his last will and testament, without having the same approved by the court.

A reading of the will definitely authorizes the executors to sell and convey real estate in the following language:

“I hereby revoke the appointment of Eston Garris and Asa Losey having died, as my executors and trustees and in their place I hereby appoint Myrtle Garris, Anna Kimble and Joseph W. Koseberry as executors and trustees of this my Will, with power to collect and invest, sell and convey as may be to the best interest of my estate.” &e.

There seems to be no question but that the executors had authority to sell real estate under this clause.

The will created a series of life estates and directed the executors, as trustees, to hold the real estate, keep it in good care and condition, and to pay the income to certain persons for life, &e. The contention of the exceptant seems to be that this would preclude a sale of the real estate. I do not so find the precedents in this state:

In the case of Randolph v. Rafferty, 92 N. J. Eq. 428; 113 Atl. Rep. 233, the said Kafferty provided that all of his estate, real and personal, and the rents, interest and profits thereof, were to go to his wife during the term of her natural life and, at her decease or remarriage, to go to his children, &c. The will gave the executors full power to sell real estate. It was argued that this power of sale contained in the will did not comprehend the life estate of the widow and the executors would have no legal right to make a conveyance. The Court of Errors and Appeals decided that this was unsound and that the executor had the right and authority to sell real estate during the existence of the life estate of the widow.

Since the executors have power and authority to convey, as authorized, which they did, this exception, therefore, will be overruled.

A decree may be submitted conforming to this opinion for my consideration.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LILLIAN FLYNN, PETITIONER, v. GEORGE A. HORMEL & CO., RESPONDENT.
    Decided January 31, 1946.

      For the petitioner, Martin P. Devlin> Jr.

    For the respondent, Cox & Walburg (by Victor C. Hansenf.

   The petitioner, Lillian Flynn, seeks compensation for herself and her two minor children, alleging that her husband, Arthur Flynn, died on January 36th, 1943, as the result of injuries sustained in an accident arising out of, during, and in the course of his employment with the respondent. The facts are not in dispute and the respondent offered no proofs, it contending that the petitioner failed to establish that the decedent sustained an accident -within the meaning of the Workmen’s Compensation Act.

It appears that the deceased was employed by the respondent as a car route salesman on a commission basis, with a $75 per week drawing account; that by agreement dated August 17th, 1942, he leased in his own name and maintained at his own expense an office in the south wing of the Warren Street passenger station of the Eeading Co., and also maintained an ice box of half freight ear capacity in the immediate vicinity thereof. The telephone in the office was listed in his name. The office had no heat as the steam pipes leading thereto had been cut, and deceased having obtained permission to tap a steam line in another part of the station premises, had been engaged intermittently for some time prior to the day in question, in reinstalling the pipes so removed. In order to make such steam pipe connections it was necessary to enter the loft of the station building, and the only means of access thereto was a trap door in the ceiling of the men’s room, which was reached via a twenty foot ladder on the side wall. The loft was at different levels and deceased had previously taken a step ladder into the loft in order to negotiate the different levels. The door to the men’s room was kept locked, the passenger agent of the Eeading Co. having the key.

On January 26th, 1943, about 10 A. m., deceased obtained the key and was seen to enter the men’s room. About twenty-five minutes later a crash resembling the breaking of glass was heard, and upon investigation Mr. Elynn was found unconscious on the men’s room floor in a small pool of blood about four feet from the sidewall ladder. An electric light bulb and socket which had hung from the ceiling over the spot where he was lying had been ripped from the electric cord and lay shattered on the floor. The trap door in the ceiling was open and part of the step ladder extended through the trap door opening. He was taken to a hospital and attended by Dr. John H. McCullough who testified that among the multiple injuries suffered were a fractured skull and cerebral hemorrhage, and that the patient died that same day from the cerebral hemorrhage at the base of the skull, which unquestionably resulted from a falL

It is my opinion that the hearing of a crash, the ripped electric cord, the broken glass from the electric light bulb, the ladder protruding from the open trap door, and the finding of Mr. Flynn unconscious in a pool of blood, constitute a combination of facts and circumstances which differentiate this case from Nardone v. Public Service, 113 N. J. L. 540; 174 Atl. Rep. 745, and Armstrong v. Union County Trust Co., 14 N. J. Mis. R. 648; 186 Atl. Rep. 522, and from which the only rational inference to be drawn is that Mr. Flynn did sustain an accident resulting in injuries described, from which injuries he died.

Did this accident, which occurred during his employment, arise out of and in the course of his employment? In Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, it was stated that an accident arises in the course of employment if it occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time, and arises out of employment when it is something the risk of which might have been contemplated by a reasonable person, when entering the employment, as incidental; and that a risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of employment. This expression of the purport of the words of the statute is cited with approval in Belyus v. Wilkinson, Gaddis Co., 115 N. J. L. 43; 178 Atl. Rep. 181; Reynolds v. Passaic Valley Sewerage Commission, 130 N. J. L. 437; 33 Atl. Rep. (2d) 595; 20 N. J. Mis. R. 74; 24 Atl. Rep. (2d) 531.

The respondent contends that the decedent was not required to rent an office to perform the service for which he was employed as the business could have been conducted from his home, and that the renting of the office was personal ft* him and in no way connected with his employment. True, the contract between the respondent and the deceased is silent as to an office, but what does the evidence disclose and what rational inferences may be drawn therefrom with respect to-the remainder of its contention? His average weekly earnings for the six month period preceding the accident were stipulated to he $181.47. The rates of commissions ranged from “5c cwt” to “75e cwt,” with no stated amount on carload lots, but depending on price and circumstances, plus 25 per cent, of the net profit of the territory, so it is obvious that the deceased transacted a considerable volume of business. It also appears that products were shipped by the respondent to the office address, sometimes in carload lots, consigned either to him, to the respondent, or to the respondent in care of the deceased; and that he, in accordance with the contract, engaged a trucker with the approval and at the expense of the respondent to make delivery of the products to his customers. Even though deceased might have been able to conduct his employer’s business from his home, when the volume of business transacted, and the records, accounts, correspondence and files necessarily attendant therewith, and the actual use to which the office was employed, are considered, can it fairly be said that the establishing of the office was in no way connected with or incidental to the fulfillment of his contract of service ? I believe the more rational inference to be that the maintenance of the office expedited the transaction of the business the deceased was engaged to perform and rendered more efficient his services to his employer and to his customers, as it would seem irrational to surmise that deceased would personally assume the obligations of an office, thereby decreasing his net earnings, were it not in expectation of better service to his clientele and of increased sales with resultant financial gain to him and additional profits to his employer. I am also of the opinion that the use of this office for the transaction of the business of the respondent, for the mutual benefit of the respondent, the deceased and his customers, with the knowledge and acquiescence of the respondent is tantamount to an authorization to so employ the same (Martin v. Hasbrouck Heights Building and Loan Association, 132 N. J. L. 569; 41 Atl. Rep. (2d) 898). A review of all the factors to be considered leads me to the conclusion that the maintenance of the office by the decedent grew out of and was connected with the reasonable fulfillment of bis contract of service and was reasonably incidental to the nature of his employment.

It has been held that in determining whether a mishap constitutes an accident within the meaning of the statute, an element to be considered is the purpose or motivating influence of the employee in performing the particular act, as may be reasonably inferred from the nature of the employment, the conditions incidental thereto and the circumstances surrounding the actual happening. Wettstein v. Whitall-Tatum Co., 127 Atl. Rep. 323; Glynis v. Wright, 122 N. J. L. 147; 4 Atl. Rep. (2d) 516. It seems to admit of no argument that a heatless office in the month of January is not conducive to either efficiency of operation or facility of business. Uor is it illogical to infer that such probable continued disruption of the usual office routine would result not only in impairment of customary service to the clientele of the deceased, but also in curtailment of sales, with consequent loss in commission to him and and in profits to his employer. I do not believe that the deceased attempted to make the steam pipe connections for the sole purpose of his own comfort. On the contrary, I am of the opinion that the more reasonable inference to be drawn is that the furtherance of the interest of his employer’s business was a contributing factor in impelling the deceased to attempt the fatal act. It is common knowledge that at the time of this fateful mishap all mechanics were being urged to devote their increased effort to the production of more war materials, and the services of such workmen as were available for private enterprise were exceedingly difficult to procure. This exigency strengthens my opinion that the undertaking of the act by the deceased was a risk reasonably incidental to the nature of his employment, and within the definition stated in Bryant v. Fissell, supra. The requirements of the statute have been met if it appears that the employment is one of the contributing causes without which the accident which actually happened would not have happened. Reynolds v. Passaic Valley Sewerage Commission, supra.

Upon a careful consideration of all the elements presented, it is my conclusion and I find that the decedent, Arthur Flynn, sustained an accident on January 26th, 1943, arising out of, during and in the course of his employment with the respondent resulting in personal injuries, of which the respondent had due notice, and which said injuries caused his death on January 26th, 1943; that the decedent left him surviving the following persons wholly dependent on him, namely: his widow, the petitioner, Lillian Flynn; a son, Thomas A. Flynn, born May 7th, 1929; and a daughter, Patricia Ann Flynn, born October 10th, 1935; that the average weekly earnings of the decedent upon which the compensation rate is to be computed is $181.47; that the petitioner, Lillian Flynn, paid funeral expenses of the decedent in excess of $150 and is entitled to the statutory funeral allowance, and is also entitled to reimbursement of medical expenses in the last illness of the decedent, which I find to be necessary and the amounts thereof reasonable.

It is therefore, * * * ordered that judgment be entered against the respondent, George A. Hormel & Company. *******

R. Wayne Kraft,

Deputy Commissioner.


author: Conklin, Commissionee.

text:
    Division of Tax Appeals.
    IN THE MATTER OF THE APPEALS OF CITY OF EAST ORANGE, PETITIONER, v. JOSHUA HENDY IRON WORKS, RESPONDENT.
    (For the years 1943, 1944 and 1945.)
    Decided March 12, 1946.
    Dor the petitioner, Walter C. Ellis.

    Dor the respondent, Burtis S. Horner.

   Conklin, Commissionee.

By stipulation between counsel, the above entitled appeals for the years 1943 and 1944 were tried together, and as they involve the same questions there is no difficulty in either the conducting of the hearing or in the conclusion that both matters involve common questions of law and fact. By further stipulation it was agreed that the appeal for the year 1945 should be decided on the same testimony and briefs, there being no change in the assessment, the property or relationship of any of the parties.

The City of East Orange assessed Block 81, Lot 1, also known as Ho. 2 Fourth Avenue, in that city, for $500,500 for each of the years 1943, 1944 and 1945. Of that sum, $114,000 was apportioned to land and $386,500 was apportioned to improvements. The matter was heard by the Essex County Board of Taxation, and they reduced the total assessment for each year by $100,000, which was found to be the value of the building hereinafter referred to as Building Ho. 19. The County Board assessed the land at $114,000 and the improvements at $286,500. At the hearing it developed that there was no testimony, nor was there any objection to the assessment of the land. The question evolves into one of ownership of a certain building constructed upon the said land of the taxpayer.

During World War II the United Stales Government found it necessary to accelerate our manufacturing industry and change from a peace-time economy to a war-time economy. To this end they used every possible inducement to expand existing industry. The Crocker-Wheeler Electric Manufacturing Company, which formerly owned the property, entered into such an agreement with the Havy Department of the United States, and this agreement was later taken over and adopted as the contract of the Joshua Hendy Iron Works, the respondent in this appeal. The contract was Ho. BS 91, and was offered in evidence at the hearing. It called for the construction of the building to be known as Ho. 19, on land owned by the taxpayer, but title to the building was to vest in the Government of the Hnited States. Moneys were advanced by the federal government to be used in payment for the facilities as the construction took place, and then the taxpayer, Joshua Hendy Iron Works, was given the right to use the facilities upon payment of rent. The rent was figured upon gross sales made by the taxpayer.

Hnder the provisions of the said agreement, it was provided that no part of the building or the equipment therein was to become a fixture by reason of the affixation. Beading the contract in its entirety, it was clearly the intention of the parties that Building Ho. 19 was to remain personalty and title was to remain in possession of the federal government. It is possible for title to land to be in one person and title to the building to be in another. U. S. Shipping Board Emergency Fleet Corp. et al. v. City of Gloucester, New Jersey Tax Reports, 1912-1934, p. 266.

The fact that the building was constructed brick by brick, the fact that it is not easily removable, does not make it realty, if to do so would be contrary to the intention of the parties.

There is no question but that property of the United States Government is expressly exempt from taxation. Howard Savings Institution v. Newark, 63 N. J. L. 547; 44 Atl. Rep. 654.

The action of the Essex County Board of Taxation is affirmed. The land shall be assessed at $114,000 and the improvements at $286,500 for the years 1943, 1944 and 1945.


author: Conklin, Commissioner.

text:
    Division of Tax Appeals.
    IN THE MATTER OF THE APPEALS OF TOWN OF DOVER, PETITIONER, v. THE KNIGHTS OF COLUMBUS HOME ASSOCIATION, RESPONDENT.
    (For the years 1944 and 1945.)
    Decided March 12, 1946.

      For the petitioner, Samuel C. Meyer son.

    For the respondent, William H. H. Ely.

   Conklin, Commissioner.

Petition was originally filed by the Town of Dover for the tax year 1944, which petition sought to reverse the action of the Morris County Board of Taxation holding that the lands and buildings of the Knights of Columbus Home Association, known as Ho. 140 East Blackwell Street, or Block 144, Lot 82 in that taxing district, are exempt from taxation. Before these matters came on for hearing the petition of appeal was filed for the year 1945, seeking the same action. Counsel for the respective parties stipulated that both matters should be heard and determined at the same time. For each of these years the said property was assessed by the Town of Dover at a valuation of land $1,750, building $1,250, total $3,000.

There is no dispute as to the facts in the cause. The Knights of Columbus Home Association is the legal owner of the property which it holds in trust for the beneficial use of Lafayette Council Ho. 514, Knights of Columbus, Dover, Hew Jersey. Membership in the Knights of Columbus Home Association is concomitant with membership in the Lafayette Council.

The sole question in this case is whether the Knights of Columbus Home Association is entitled to an exemption under the provisions of chapter 243, laws of 1941 (B. S. 54:4-3.6; N. J. S. A. 54:4-3.6) which provides in part: “The following properties shall be exempt from taxation under this chapter * * * all buildings actually and exclusively used in the work of the associations and corporations organized exclusively for the moral and mental improvement of men, women and children, or for religious, charitable or hospital purposes, or for one or more such purposes; * *

The certificate of incorporation of the Knights of Columbus Home Association sets forth: “The purposes for which this corporation is formed are to promote and advance the interest and welfare of the order of the Knights of Columbus, to aid, assist and relieve its members and their families, to encourage and cultivate the principles of charity, benevolence, brotherly love and patriotism; to acquire, own, hold, operate, manage and control lands and buildings as a club-house and grounds for the use and enjoyment of its members; to engage in and provide any and all kinds of amusements, entertainments, refreshments, sports and contests and anything that may be desired by or pleasing to its members, or necessary, convenient or proper for the maintenance and operation of a well-appointed club.” Counsel for the association introduced as part of his exhibits the by-laws and loan by-laws of Lafayette Council Ho. 514, Knights of Columbus, Dover, Hew Jersey, together with the charter, constitution and bylaws of the national organization, which govern the Supreme, State and more particularly the Subordinate Council, the beneficial owner.

Apparently it was the intention of the legislature to differentiate charitable and religious organizations from fraternal organizations and not to include them within the provisions of R. S. 5i:4r-3.6; N. J. S. A. 54:4-3.6, for R. S. 54:4-3.26; N. J. 8. A. 54:4-3.26, subsequently declared unconstitutional, applied solely to fraternal organizations.

Undoubtedly there is a great deal of religion in the work of the Knights of Columbus, as membership is confined to members’ of the Roman Catholic Church. In the same vein, the organization does a great deal for good, but these limitations of membership and praiseworthy ideals do not take it out of the category of a fraternal organization. We must consider all the facts, and from the stipulation, testimony and evidence it appears that Lafayette Council Ho. 514, Knights of Columbus, Dover, Hew Jersey, is a fraternal organization. In the charter, constitution and by-laws, which confer their charter, repeated reference is made to the organization as an “Order.” Passwords are indicated, and their laws, rules and regulations indicate the conferring of degrees as a fraternal order. The certificate of incorporation of the Knights of Columbus Home Association sets forth purposes that are unquestionably fraternal.

It has been repeatedly held that a grant of exemption from taxation, being in the nature of a renunciation of sovereignty, must invariably be construed most strictly against the grantee, and can never be permitted to extend, either in scope or duration, beyond what the terms of the concession clearly require. Sisters of Charity of St. Elizabeth v. Cory, 73 N. J. L, 699, 706; 65 Atl. Rep. 500; Cooper Hospital v. City of Camden, 70 N. J. L. 478; 57 Atl. Rep. 260; and Mausoleum Builders of New Jersey v. State Board of Taxes, 88 N. J. L. 592; 96 Atl. Rep. 494; affirmed, 90 N. J. L. 163; 100 Atl. Rep. 236.

To merit the exemption, the burden is upon the person claiming the exemption to adduce facts bringing his case within the terms of the statute granting the exemption. Carteret Academy v. State Board, 102 N. J. L. 525; 133 Atl. Rep. 886; affirmed, 104 N. J. L. 165; 138 Atl. Rep. 919; Blair Academy v. State Board, 6 N. J. Mis. R. 498; 141 Atl. Rep. 789; affirmed, 106 N. J. L. 556; 146 Atl. Rep. 912; Y. W. C. A. v. Pelham, 9 N. J. Mis. R. 196; 153 Atl. Rep. 397; affirmed, 108 N. J. L. 553; 158 Atl. Rep. 544.

The Knights of Columbus Home Association has not established its right to benefit under the provisions of chapter 243, laws of 1941 (E. S. 54:4-3.6; N. J. S. A. 54:4-3.6).

Therefore the judgment of the Morris County Board of Taxation is reversed and lands shall be assessed for the tax years 1944 and 1945 at $1,750 and $1,250, total $3,000, the amounts of the original assessments.


author: Waesche, President.

text:
    Division of Tax Appeals.
    IN THE MATTER OF THE APPEAL OF CITY OF JERSEY CITY, PETITIONER, v. MORRIS AND ESSEX RAILROAD COMPANY, RESPONDENT.
    (For the year 1942)
    Decided March 12, 1946.
    Dor the petitioner, Charles A. Rooney (by John J. Meehan).

    Dor the respondent, .John Laird.

   Waesche, President.

This opinion deals with the appeal from the 1942 assessment on Block 19, Lot A-3, Twelfth Street, Jersey City. The property, which is the subject-matter of this appeal, consists of 58,500 square feet of level land together with the improvements thereon, to wit, 24 steel, oil storage tanks, two small buildings, and a pipe line to the water front at Pier 10 of the Delaware, Lackawanna and Western Railroad Company. The land under appeal was acquired by the Morris and Essex Railroad Company on June 24th, 1881, as part of a larger tract containing 34.658 acres, since which time it has been used as part of the water front terminal yard of the Delaware, Lackawanna and Western Eailroad located in Jersey City at the foot of Twelfth to Fifteenth Streets. In 1919 the Delaware, Lackawanna and Western Eailroad Company leased 36,310 square feet of the land under appeal to the Philippine Vegetable Oil Company for a period of ten years.

The oil company erected the first oil storage tanks on the property, and constructed the two small buildings and the pipe line. This lease was terminated on April 30th, 1925, at which time the Eailroad Company purchased all the improvements erected on the land. The Harbor Tank Storage Company, Inc., on June 10th, 1933, leased the land and improvements thereon and, by virtue of subsequent renewals of this lease, has been in continuous possession of the property ever since. The present lease was made on February 1st, 1940, and provides that:

“The Eailroad Company has let and rented to the Lessee, and the Lessee has hereby hired and taken from the Eailroad Company all of the lands and premises situate in the City of Jersey City, Hudson County, New Jersey, described as follows: Being an irregular parcel at the south side of the Eailroad Company’s Jersey City Terminal freight yard lying east of the former center line of Barnum Street (now vacated) north of the center line of Twelfth Street (extended) and south of the southerly tracks of said Yard, and more particularly shown in brown outline on the blueprint map of said premises which is hereto attached and made a part hereof, containing 58,500 square feet of land, more or less:

“Togetheb with the appurtenances thereto and the tanks, piping, structures and facilities located thereon, the whole constituting an oil storage and pumping plant.

“Also the pipe line extending from the said premises to Delaware, Lackawanna and Western Pier No. 10, and the right of access to the said pipe line between the said premises and the said Pier No. 10, for the purposes of operation, repair and maintenance, and the right to use the said Pier No. 10 and the adjacent slip and approaches thereto, to the extent that such use is necessary for the purpose of receiving and discharging oil to be delivered or discharged from or to ships or barges to or from the said storage tanks.”

The property here under appeal is used as -a transit station under and pursuant to the regulations of the Interstate Commerce Commission. The tanks are used for temporary storage of imported vegetable oil which is in transit from port of origin to point of destination. The oil which passes through the storage tanks here under appeal, is brought to Pier 10 of the Delaware, Lackawanna and Western Eailroad Company in barges. It is then pumped via the pipe line from the barges into the oil storage tanks here under appeal to await shipment. Prom these tanks it is transferred to railroad tank cars or loaded into box cars in drums for shipment to its point of destination.

The Delaware, Lackawanna and Western Eailroad runs a terminal yard siding across the land here under appeal from off Pier 10 to the industrial plants of the Union Eefrigerator Company and the National Carbon Company on the westerly side of Provost Street, Jersey City. This side track is used for yard switching purposes, for the handling of railroad freight moving to and from the industrial plants aforesaid, and for loading railroad tank cars and box cars with the oil from the storage tanks here under appeal.

The land involved in this appeal, except for the year 1941, has been assessed each year as second class railroad property, i. e., land in railroad use, for the past fifty years or more. It was assessed for the first time by the local assessor as third class railroad property, i. e., land not in railroad use, in 1940, but this assessment was set aside and canceled by the Hudson County Board of Taxation, and the State Board of Tax Appeals affirmed the decision of the County Board. The land was assessed locally again in 1941 as third class railroad property. The Hudson County Board of Taxation canceled the 1941 assessment, but the State Board of Tax Appeals overruled the County Board and restored the local assessment. (1943 Suppl. New Jersey Tax Reports, p. 72.) In 1942 the land was assessed locally again, and the County Tax Board again canceled the assessment. In 1943 the Jersey City assessor again placed an assessment on the land, but the County Tax Board under its general powers of revising and correcting the tax lists and duplicates removed the assessment before returning the duplicates to the Jersey City tax collector. This appeal seeks to have the land and improvements thereon assessed by the local assessor as third class railroad property. The improvements were always assessed locally as third class railroad property, except for the year 1943, when they were assessed for the first time by the State Tax Commissioner as second class railroad property.

The “Bailroad Tax Law of 1941” imposes an annual property tax upon “all property used for railroad purposes at the rate of three per centum (3%) upon the true value thereof.” This tax is assessed by the Director of the Division of Taxation, State Department of Taxation and Finance, formerly the State Tax Commissioner, and is in lieu of all other state ■or local taxation except assessments for benefits. N. J. 8. A. 54:29A-7; 54.-29A-11. This statute requires the State Tax Commissioner, now the Director of the Division of Taxation, to determine the true value of “all property used for railroad purposes in this state,” N. J. 8. A. 54:29A-17. It also requires that the property of a railroad company “not used for railroad purposes” shall be assessed by the local assessor and taxed locally the same as other property is taxed in the same taxing district. N. J. 8. A. 54:29A-4. Property used for railroad purposes has been assessed and taxed exclusively by the state for many years. B. 8. 54:20-l; N. J. 8. A. 54:20-1; Jersey City v. Morris and Essex Railroad, 1943 Suppl. New Jersey Tax Reports, p. 72.

The statute has made it very clear that whenever property is used for any railroad purpose it cannot be assessed by the local assessor. The Court of Errors and Appeals said in the ■case of Lehigh Valley Railroad Co. v. Jersey City, 80 N. J. L. 298; 78 Atl. Rep. 215, 217:

“That test is use for railroad purposes. If such a use is found to exist, then that property is to be valued and assessed for taxes by the State Board of Assessors, and the amount of the taxes assessed is to be paid into the state treasury. It may be conceded that the legislature, if it had thought proper to do so, might have provided for the taxation of property of these corporations which was subject to a double use, that is, property which was used for railroad purposes, and also for other purposes, either wholly or partially by the taxing board of the municipality in which it was located. This, however, it did not see fit to do by the act of 1884, or by any supplement to that statute which it has subsequently enacted. On the contrary it declared that only property which is not used at all for such purposes shall be taxed by the local authorities, and that “all other property’ of these companies shall be taxed by the State Board of Assessors. Such a legislative declaration leaves no room for construction. To hold that property used for railroad purposes shall be taxed by the local authorities rather than by the State Board of Assessors, when it is made to appear that another use is also imposed upon it, is not a construction of the words of the act, but judicial legislation. Perhaps such a method of taxation is more desirable than that provided by existing legislation, but whether that method shall be put in force is a. matter to be determined not by the courts, but by the legislative department of the government.”

In the case of United New Jersey Railroad Co. v. Jersey City, 57 N. J. L. 563 (at p. 569) ; 31 Atl. Rep. 1020, the court said that so long as the property remains incident to and reasonably necessary or convenient for railroad purposes, and not actually devoted to other purposes, it is to be considered in railroad use.

See, also, the case of Hoboken v. State Board of Equalization of Taxes, 83 N. J. L. 784; 85 Atl. Rep. 578.

In the case of Pennsylvania Railroad Co. v. Jersey City, 49 N. J. L. 540; 9 Atl. Rep. 782; affirmed, 51 N. J. L. 564; 20 Atl. Rep. 60, the court held that the use of land for the storage of cargo awaiting transhipment was a use of it for necessary railroad purposes.

The land here under appeal is part of the waterfront terminal yard of the Delaware, Lackawanna and Western Bail-road and is used as a transit station under the Interstate Commerce Commission rules and regulations for the storage of cargo in transit from port of origin to its point of final destination. If the railroad did not provide space for a transit station for this oil cargo during its transition from ship to railroad ears it could not enjoy the benefits of this business. The land is also used by one of the terminal yard sidings for the purpose of loading the aforesaid oil and to reach industrial plants lying vest of Provost Street, Jersey City. The land is therefore clearly used for railroad purposes.

The oil storage tanks, pipe line, and buildings on the land under appeal are used by the Harbor Tank Storage Company, Ine. They are not used for railroad purposes, and are to be assessed and taxed locally.

The decision filed October 26th, 1943, in the 1941 appeal of the properties here under appeal (1943 Suppl. New Jersey Tax Reports, p. 72), vas determined upon the evidence submitted on the hearing of that appeal.

The judgment of the Hudson County Board of Taxation is affirmed, and the appeal of Jersey City is dismissed.