author: Hartshorne, J.

text:
    Essex County Court of Common Pleas
    THE TOWN OF IRVINGTON, FOR THE USE OF THE WARRANTY BUILDING AND LOAN ASSOCIATION, A NEW JERSEY CORPORATION, PLAINTIFF, v. SAMUEL DUBROW AND COMMERCIAL CASUALTY INSURANCE COMPANY, A NEW JERSEY CORPORATION, DEFENDANT.
    Decided May 31, 1932.

      For the plaintiff, Emil H. Bloch.

      For the defendant, William,s <& Leonard.

   Hartshorne, J.

This is a test case submitted to the court sitting without a jury on facts not in dispute upon the determination of which depends a series of other similar controversies, the issue being whether a constables’ bond covers his admitted defalcation on the collection of a District Court execution outside the limits of the town where has was elected of -appointed. Such levies are in common practice throughout the state, but the research of counsel and of the court have thus far failed to reveal a previous determination of this question by the courts of this state. The objections to such coverage are (1) that the plaintiff for whose use the suit is brought is not entitled to enforce the bond; (2) that the levy of an execution is no part of his official duties as constable of the town covered by the bond, and (3)- what is most important of all from its practical standpoint, that a town constable cannot lawfully levy under an execution outside the town limits.

The first objection is based upon the provision of the statute, the Constables’ act, section 1 (2 Comp. Stat., p. 1527), authorizing the bond to be entered into with the “inhabitants of the township,” the fact being that the Warranty Building and Loan Association, for whose use the suit is brought, has its registered office in the city of Newark, not in the town of Irvington, where the defendant Dubrow was appointed. But this very section provides that the bond shall be entered into “to the inhabitants of the township in their corporate name and capacity,” the bond in question reading to “the town of Irvington.” The Constables’ act is clear that the town is a mere nominal plaintiff and that “any person or persons” may sue on the bond. See sections 2, 3 and 5.

As to the second objection that it is no part of the defendant Dubrow’s official duties as constable of the town to levy an execution, the words of the bond are pertinent, conditioning same upon the constable’s faithfully performing “all the duties enjoined on him as constable of said town.” Defendant’s claim is that this covers only duties which the town itself in its corporate capacity enjoins upon him. While it is true that there are certain duties of this character, such as the collection of personal tax warrants, which the constable may be required to perform, the performance of such duties are rare, while the levy of executions by him comprises much of his work. Such levies not only are now enjoined upon him by law, but have been so enjoined upon constables in this state at least as early as the year 1818. We find in the act constituting courts for the trial of small causes passed in that year (Revision of 1821, page 629, section 3), “that the constables of the several townships in such county shall be the ministerial officers of the said court and that it shall be the duty of said constables to execute within the county all * * * writs and other process issuing out of the said court * * We further find in the District Court act (2 Comp. Stat, p. 1955, § 5), that “the ministerial officers of such court shall be a clerk and such of the constables of the city or county wherein such court may be established as the judge thereof may designate.” By section 29 of such act the jurisdiction of this court is made county-wide, and by sections 58 and 201 the constable is to be penalized if he fails to execute any writ, including that of an execution, directed and delivered to him.

Furthermore, in the Constables’ act itself provision is not merely made for suit on the constable’s bond “by any person or persons by reason of any neglect or default of the said constable in his official duties” (section 3, supra), but by sections 7 and 8 of such act the surety on such bond is specifically authorized to recover “all moneys in the hands of any person or persons collected by said constable on any execution or .process and -which at the time of his absconding or insolvency or incapacity, as aforesaid, were not paid over to the plaintiff or person entitled to the same.” Our legislature had in mind and provided for this very situation.

Clearly, therefore, levies under writs of execution are enjoined upon these constables as part of their official duties. Note that the bond does not cover such official duties as are performed “for the benefit of the town” or only duties enjoined on him “by the town.” The bond is conditioned for the performance of “all duties enjoined on him as constable of said town,” the reference to the town being clearly necessary as descriptio personae.

The final objection raised is that no constable is authorized to levy under an execution outside the limits of the town where he is elected or appointed and that the levy in this case was in Newark and, therefore, the constable was not bonded in that respect. But this runs counter to the authority of our constabulary in this state from the earliest times. In the Small Cause act of 1818, above quoted, the legislature has expressly authorized “constable to execute within the county.” The provisions of the District Court act, above referred to, making the constable a ministerial officer of the court, compelled to execute the process of the court, clearly implies his authority to execute such process throughout the county-wide jurisdiction of the court. While there is some conflict in the authorities, such is, in fact, the general rule, at least in this country. 35 Cyc. 1538; People v. Garey, 6 Cow. (N. Y.) 647; Lafontaine v. Greene et al., 17 Cal. 294; Norfleet v. Southall, 7 N. C. 189; Dix v. Batchelder and Town of Plainfield, 55 Vt. 562.

This is in nowise contrary to Dunham v. Solomon, 16 N. J. L. 50, since the court there holds that “the marshal of the city of Perth Amboy is not a constable,” and cites the charter of the city authorizing the marshal to act, as expressly confining their powers “within'the said city.”

Judgment may be entered for the plaintiff.


source: Caselaw Access Project

author: Goldberger, J.

license: Public Domain

text:
    Perth Amboy District Court.
    GEORGE W. TYRRELL, PLAINTIFF, v. STANDARD UNDERGROUND CABLE COMPANY, DEFENDANT.
    Decided June 4, 1932.
    For the plaintiff, David T. Wilentz.

    For the defendant, John G. Btockel.

   Goldberger, J.

The summons in this case was issued in 1927 by the plaintiff, who is a physician in the city of Perth Amboy, to recover the sum of $184 which represents his bill for services rendered to one James Kozak, an employe of the defendant corporation.

The facts as I remember them are that in May, 1927, Kozak was injured in an accident during the course of his employment, and he was removed to the Perth Amboy City Hospital in an unconscious condition. Dr. Tyrrell, a member of the staff, was present at the time. A hurried examination of the patient caused the plaintiff to get in touch with the defendant corporation through its superintendent, Mr. Hawley, and the plaintiff advised Mr. Hawley that the patient was in a very bad way, and would require an unusual amount of care, including special nurses, in order to bring about a recovery. The plaintiff was requested by Mr. Hawley to give all the attention necessary to bring about the recovery of the patient, who had been injured by reason of his clothes having come in contact with a rapidly revolving shaft, which shaft caused his clothes to strangle him for several minutes before the machine could be stopped. The patient had hemorrhages of the brain and odema of both lungs, and a part of his flesh was torn away from his body.

The defendant corporation resists payment on two grounds, (1) that the agreement should have been in writing, and (2) that the plaintiff comes within the provisions of the Workmen’s Compensation act.

The defendant relies mainly upon the ease of Moore v. Derees, 97 N. J. L. 378; 117 Atl. Rep. 480. I do not agree with such contention because in that case the services were rendered by the physician to the employe, at the request of the employe; but in this case, the evidence is that the physician acted at the request of the defendant corporation through its superintendent, who was the manager in charge of the plant at the time of the accident, and as such, would have a right to bind the company.

The compensation statute is only binding upon the parties to the statutory contract, and they and they only are entitled to its benefits and are bound by its terms. The plaintiff is not bound by the Compensation act. Dias v. New Jersey Manufacturing Co., 4 N. J. Mis. R. 102; 132 Atl. Rep. 101; Rosecrans v. Reiner, 4 N. J. Mis. R. 769.

There will be a judgment for the plaintiff in the sum of $184 and interest from July-3d, 1927, in the sum of $54.30.


author: Baches, Y. C.

text:
    In the matter of the alleged contempt of Lena Schachman.
    [Decided June 24th, 1932.]

      Mr. Samuel A. Scharff, for the prosecution.

      Mr. Bernard Mindes, for the respondent.
   Baches, Y. C.

These criminal contempt proceedings are against Lena Schachman, upon the petition of the solicitor of one Leon Zwikel, who presents that his client is the complainant in a pending cause in this court against Lena Schachman; that he (meaning his client) filed a hill against the defendants to set aside a chattel mortgage made by Lena Schachman and Harry Schachman to another defendant, Isadore Ansky, as fraudulent against a judgment recovered by his client against the Sehachmans; that by the decree entered February 26th, 1932, the mortgage was set aside as fraudulent as against the complainant’s judgment recovered in the first district court of Newark, April 24th, 1931, for $390 debt, and $23.60 cost, and that a constable of Essex county was ordered to sell the goods (household effects) free of the mortgage; that the constable has attempted to sell the goods, but was refused admission to the house of the Sehachmans. This is the gravaman: “On or about February 1st, 1932, the said Lena Schachman and Harry Schachman, or one or both of them, removed or caused to be removed the said chattels heretofore set forth, thus removing the subject-matter of the litigation and making the decree of this court of no effect.”

In criminal contempt in equity, the petition is the substitute for an indictment at common law and must present the offense with the same certainty and preciseness as required of an indictment.

The allegation that Lena and Harry “or one or both of them” removed, &c., does not charge Lena with the offense of removing; Harry may be the guilty one.

Then, from where were the goods removed? Their location is not alleged in the petition. We may suspect that they were in the Schaehman home, but there is no allegation to that effect and none from which it may be inferred that they were in the home and removed from there. If it was meant to be said in the petition that the furniture had been in the home, 45 Willoughby street, and that it had been removed from there by Lena Schaehman, and if we assume the allegations to be true, it is to be presumed that the furniture was moved in the regular course of changing the place of residence to Conkling street. That was not contempt.

Another defect in the proceedings is that the petition to punish for contempt was made to the vice-chancellor who advised the decree. This violated rule 13 0-4A, which requires the application to be made to some other vice-chancellor.

And also this- irregularity appears: The order requires the respondent to show cause before the vice-chancellor. The proceedings in.criminal contempt are original; the order must be returnable before the chancellor; it may then be heard before a vice-chancellor under the general reference rule 130. The petition and order to show cause will be dismissed.

. A petition against Harry Schaehman is similarly defective and also will be dismissed.


author: Irgeesoll, Y. C.

text:
    Beach Haven Yacht Club, a corporation of the State of New Jersey, complainant, v. Beach Haven Harbor Yacht Club, a corporation of the State of New Jersey, defendant.
    [Decided June 2d, 1932.]

      Mr. Albert L. Kushinsky, for the complainant.

      Messrs. Jayne & McGloskey, for the defendant.
   Irgeesoll, Y. C.

The complainant has been a corporation for nearly fifty years and for many years has had a clubhouse on property adjacent to or near the public or city wharf in Beach Haven, New Jersey. This clubhouse was built upon rented land. The owners thereof desired to sell the land and gave the complainant an opportunity to purchase it, but because of financial inability or other reasons, the club declined to purchase said land and moved their building to a new position along the inland waterways, several hundred feet from its old location.

The club has three classes of memberships, first, sailing boats for hire, that is, taking passengers for pay, the second class consisting of those who sail their boats for pleasure, and the third class being contributing members.

Adjoining the old location of the clubhouse there was a restaurant or hotel owned'by parties by the name of Parker. These people organized a corporation known as Beach Haven Harbor, Incorporated, and purchased the land formerly occupied by the complainant’s clubhouse, with considerable acreage adjoining the same, and proceeded to improve the same by building bulkheads, filling in lowlands and constructing a basin or mooring place for small boats. The Beach Haven Harbor Yacht Club was then incorporated, using the name of the land company and adding the words “Yacht Club.”

, The complainant having moved from the immediate vicinity of the public dock, some of its members, principally those of the first class mentioned, withdrew from its membership and joined the defendant club.

Both parties have erected signs guiding persons to their respective clubhouses. It should be said, however, that the defendant is presently occupying certain portions of the premises, used by the Parkers as a restaurant, for temporary clubhouse purposes. Upon at least one of the signs originally erected by the defendant, the word “Harbor” was painted in very small letters and in an inconspicuous manner. Shortly thereafter, the word “Harbor” was painted out and inserted in larger size letters and in a different color.

In addition to the testimony taken before me and the exhibits presented, I have viewed the premises, and I do noi believe that any person is likely to be deceived by the similarity of names, in view of the signs placed, not only by the complainant but by the defendant, and the one placed by the complainant upon its clubhouse. I have no doubt that people will go to the public or city dock for the purpose of securing boats, as they have done in the years past, but I do not believe it is because of the similarity of names or of signs.

While I do not consider that Cape May Yacht Club v. Cape May Yacht and Country Club, 81 N. J. Eq. 454 is entirely parallel, Vice-Chancellor Backes says, in Evening Journal Association v. Jersey Publishing Co., 96 N. J. Eq. 54:

“A geographical name is not the subject of exclusive appropriation, but an established trade of which it is the badge, will be protected against unfair competition by the use of the name. Van Horn v. Coogan, 52 N. J. Eq. 380. If such a name so used as a badge of trade be taken by another with intent to mislead the public to the injury of the complainant, equity will enjoin, even though, otherwise, he would have the right to use it. International Silver Co. v. William A. Rogers, 67 N. J. Eq. 646; Eureka Fire Hose Co. v. Eureka Rubber Co., 69 N. J. Eq. 159; Cape May Yacht Club v. Cape May Yacht and Country Club, 81 N. J. Eq. 454. If no fraudulent intent in the adoption of the name appears equity will relieve, if the use of such name by another confuses and misleads the buying public to the injury of the complainant. Diversion of complainant’s trade by the use of the name is fraudulent. Wirtz v. Eagle Bottling Co., 50 N. J. Eq. 164; Johnson v. Seabury, 69 N. J. Eq. 696; Rubber and Celluloid Harness Trimming Co. v. Rubber Bound Brush Co., 81 N. J. Eq. 419; National Biscuit Co. v. Pacific Coast Biscuit Co., 83 N. J. Eq. 369. Heither actual confusion nor actual fraudulent intent need be shown where the necessary and probable tendency of the defendant’s conduct is to deceive the public and pass off his goods or business as and for that of the complainant. Hilton v. Hilton, 90 N. J. Eq. 564. Proof of any express intention to pirate the complainant’s trade is, of course, not at hand, and, ordinarily, is not to be expected.”

I will, as was done in the Evening Journal Case, supra, advise that the bill be dismissed.


author: Aokekson, S. 0. C.

text:
    DIAMOND T MOTOR CAR COMPANY, INCORPORATED, PLAINTIFF, v. LOUIS A. EUCKER, Jr., TRADING AS EUCKER MOTOR AND REPAIR COMPANY, DEFENDANT.
    Decided April 23, 1932.
    Por the plaintiff, David H. Sterner.

    Por the defendant, Nicholas S. Schloeder.

   Aokekson, S. 0. C.

This action is upon a written guaranty. The complaint alleges in substance the sale of a certain "Diamond T” motor truck by the defendant, to the Tri-County Carrier Company, under a conditional sale agreement reserving title in the seller and providing for payment of the balance of the purchase price in monthly installments secured by notes with acceleration of payments in case of any default. It is further alleged that at the time of said sale on October 29th, 1928, the defendant assigned said conditional sale agreement and guaranteed the payments due in accordance therewith to the Diamond T Motor Car Company, Incorporated, the plaintiff herein, which guaranty is made a part of the complaint and reads as follows:

"Por value received the undersigned hereby sells, assigns and transfer to Diamond T Motor Car Company, 81 Williams street, Long Island City, New York, all of the right, title and interest of the undersigned, in to and under lease agreement made this date with the undersigned by Tri-County Carrier, Incorporated, 726 East Twenty-sixth street, Paterson, New Jersey, covering Diamond T motor truck 80063024, including the notes therein referred to and thereby secured and including the property therein described, together with all of the rights of the undersigned with respect to the enforcement thereof and of said notes and with respect to said property, and the undersigned guarantees to Diamond T Motor Car Company full performance of said instrument and the prompt. payment of said notes and warrants that the property therein described is free and clear of any and every claim of any kind whatsoever, other than this instrument. Should any deficiency result to Diamond T Motor Car Company with respect to the amount due on said notes upon enforcement of said rights as to said property, the undersigned agrees to pay Diamond T Motor Car Company such deficiency, together with such reasonable expenses and attorney’s fees involved in said enforcement or rights of said property, and further agrees that any etxension or forebearance which may be granted with respect to the said instrument or said notes shall not in any manner release the undersigned from the endorsement of this guaranty.

“Eucker Motor and Repair Co.

(Signed) Edward Eucker, See"

The complaint further alleges a default in the monthly payments, repossession of the truck by plaintiff, and sale thereof at public auction at 81 Williams street, Long Island City, New York, on June 21st, 1929, in accordance with the “Conditional Sales act” (Pamph. L. 1919, ch. 210, p. 468), for the sum of $1,000 resulting in a deficiency, &c., for which judgment is asked against the defendant as guarantor.

The body of the answer, filed by the defendant, consists of certain admissions and denials, to which is appended eight separate defenses and a counter-claim. The plaintiff now moves to strike out the body of the answer as sham or frivolous and the separate defenses and counter-claim as frivolous.

First turning our attention to the separate defenses, we find that the first alleges that:

“The said plaintiff failed to make diligent effort to enforce the collection of the obligation from the said principal debtor, the Tri-County Carrier Company, mentioned in the complaint and has wholly failed and unreasonably neglected to proceed against it.”

This action is to recover from the defendant, guarantor, the deficiency alleged to have resulted from the sale of the truck in question, and the pertinent provisions of the written guaranty are as follows:

“Should any deficiency result to Diamond T. Motor Car Company, with respect to the amount due on said notes upon enforcement of said rights as to said property the undersigned” (defendant), “agrees to pay Diamond T Motor Car Company such deficiency, together with such reasonable expenses and attorney’s fees involved in said enforcement or rights of said property, and further agrees that any extension or forebearance which may be granted with respect to the said instrument or said notes shall not in a manner release the undersigned from the endorsement of said guaranty.”

This is not the ordinary guaranty of collection, requiring the exhaustion of all remedies for satisfaction of the debt before recourse to the guarantor. It is rather a limited guaranty of collection confining the' guarantee’s efforts to collect, before calling upon the guarantor, to the exhaustion of the remedies specifically set forth in the guaranty itself. The plain wording of the guaranty in question, so far as applicable to the present form of action, requires the seller or his assigns to establish a “deficiency” by first enforcing his rights against the “property,” and upon this being done the guarantor’s obligation became an absolute guaranty of payment. 28 C. J. 978, note 6, and cases cited; McMurray v. Noyes, 72 N. Y. 523 ; 28 Am. Rep. 180.

It'is to be noted that the defense in question does not allege a failure to give notice to the defendant of the default in making the installment payments, but rests entirely upon the proposition that the plaintiff has failed to make diligent effort to enforce collection of the obligation from the principal debtor and in fact has not proceeded against it at all, but this the plaintiff was not required to do, after establishing a deficiency by selling the truck as required by the terms of the guaranty. We must keep in mind that this defense as pleaded, does not allege a failure to make diligent efforts to determine the deficiency by proper sale o£ the truck, but only such failure with respect to proceeding against the principal debtor. The first defense is, therefore, frivolous and will be stricken out.

The “second defense” is as follows:

“The said plaintiff failed to comply with the Conditional Sales act mentioned in the complaint of the plaintiff in that:

(a) It failed to give ten days’ written notice to the defendant or to the buyer, the Tri-County Carrier Company, of the sale.

(b) It failed to give notice of sale by posting at least three notices in different public places within the filing district where the motor truck was to be sold, at least five days before the sale.

(c) It failed to give notice of said sale at least five days before the sale by publication in a newspaper published or having a general circulation within the filing district where the motor truck was to be sold, although more than $500 had peen paid on the purchase price.

(d) The plaintiff failed to give notice of intention to retake the motor truck which was-the subject of the said conditional sale.”

The only reason urged for striking out this defense is that it is frivolous. The various subdivisions of this defense are, as will be observed, predicated upon the alleged failure of the plaintiff to comply with certain provisions of the said “Conditional Sales act” in selling the truck to establish the alleged deficiency for which this action is brought. Plaintiff claims that it established such deficiency in accordance with the requirements of said act, as it was required to do in order to hold the defendant to this provision of his guaranty. Subdivisions (a), (b) and (c) of this defense set forth failure to give certain notices of the sale of the truck as required by the act. If true they present good defenses, and are not, therefore, frivolous, under the definition of that term found in National Surety Co. v. Mulligan, 105 N. J. L. 336; 146 Atl. Rep. 372, and cannot be stricken out upon that ground. Even if we look to the truth of these allegations a question is raised by the affidavits as to whether the sale was actually held on the day claimed by the plaintiff, and if the sale was not so held, any notice given for a day when the sale was not held would be ineffective. So the first three subdivisions of this defense could not be stricken out as sham if that had been stated as a ground of the motion.

With regard to subdivision (d), however, it is sufficient to say that no notice of the seller’s intention to retake the motor truck is required under section 18 of the “Conditional Sales act,” if the seller retains the goods for ten days after the retaking before proceeding to sell them. This subdivision of the defense in question is, therefore, defective for failure to also allege that the truck was not retained for ten days after the retaking and will be stricken out as frivolous.

The “third defense” is stated as follows:

“1. The said motor truck was delivered to the defendant and for the purpose of resale upon a warranty from the plaintiff that the said motor truck was free from all defects in material and workmanship.

“2. Belying upon said warranty, the defendant sold said truck to the Tri-County Carrier under the conditional sales agreement mentioned in complaint.

“3. The said warranty was breached in that the said truck was defective in materials and workmanship and as a result thereof, the said conditional vendee was excused from completing its contract of purchase.”

This defense is objected to as frivolous. It is difficult from its wording to determine whether the defendant intends to rely upon a discharge of the conditional vendee, Tri-County Carrier Company, because of an alleged breach of warranty made by plaintiff to said conditional vendee, thereby relieving the defendant from his guaranty, or whether the defendant intends to rely upon an alleged breach of warranty made to himself as an offset to the plaintiff’s claim upon the guaranty.

If the first proposition is relied upon the pleading is defective on its face in that it does not allege that any warranty, express or implied, was made by anyone to the Tri-County Carrier Company. The warranty referred to appears from the averments to have been made to the defendant, because the allegation is that “the truck was delivered to the defendant for the purpose of resale upon a warranty from the plaintiff,” &c., thereby implying that the truck was sold to the defendant, upon a warranty to him as otherwise there could be no resale by him, and it is not alleged that he was acting merely as an agent. Then it is alleged that, “relying upon said warranty, the defendant sold said truck to Tri-County Carrier Company.” It is not charged that the warranty was a general one to anybody who might thereafter purchase the truck from the defendant or his vendee, or that it was made to or for the benefit of Tri-County Carrier Company, nor that said company relied thereon. A warranty on the sale of personality does not run with the property. Thus, purchasers who buy from the vendee in a prior sales contract with warranties are not accorded the benefit of such warranties to their vendors, and this has been held although the original sale was to one dealing in goods of the character sold; the rights and remedies in such prior sale belong to, and are enforceable by, the intermediate parties in the claim of title against their immediate vendors. 55 C. J. 666.

Furthermore the statement following the alleged breach of warranty at the end of the defense, that “as a result thereof, the said conditional vendee was excused from completing its contract of purchase,” is a mere conclusion of the pleader and ■cannot be considered in determining the legal sufficiency of the pleading. In any event it is not charged that said conditional vendee rescinded the contract of sale, nor that it ever claimed to have been damaged by any breach of warranty, nor that it refused to complete its contract of purchase because of any breach of warranty. In this aspect of this defense, the defendant would be claiming a third party right which such party never asserted so far as appears from this pleading.

If, one the other hand, the defendant intends to rely upon an alleged breach of warranty made to himself alone as an offset against the plaintiff’s claim, he has chosen the wrong method of pleading.

It is, of course, true that the buyer of goods has a right of action- for a breach of warranty notwithstanding a resale of the goods. 55 C. J. 889, § 867 ; also pp. 803, 818.

It would seem, therefore, that if the plaintiff breached a warranty given to the defendant, the latter would have a right of action for such breach against the plaintiff, but this would arise from a separate, distinct and independent cause of action from that set up in the case sub judice, and would not be a defense -thereto, although it might probably be the proper subject of a counter-claim under section 12 of the Practice act of 1912 (Pamph. L. 1912, p. 379, § 12); see, also, Kinney v. Federal Laundry Co., 75 N. J. L. 497; 68 Atl. Rep. 111; 9 Cyc. 643. This section of the 1912 act supersedes section 105 of the Practice act of 1903. Pamph. L. 1903, p. 568; Murphy v. Patten, 85 Atl. Rep. 56.

It would seem, therefore, that this pleading, in its present form, does not set forth a legal defense to plaintiff’s action and must be stricken out.

The “fourth defense” is in the following form:

“1. The said motor truck, about sixty days prior to June 21st, 1929, came into the possession of the plaintiff seller by virtue of the said plaintiff’s agreement with buyer to repair the truck,- arising out of the defective materials and workmanship and its agreement to substitute new parts, said truck being so held in possession at its factory branch at 81 Williams street, Long Island City, New York.

“2. At the time of the alleged sale of the said truck under the pretended authority of the said Conditional Sales act on June 21st, 1929, the said truck was in the possession of the said seller for the purpose set forth in the preceding paragraph.”

It is difficult to gather from the first reading of this defense the principle upon which it is attempted to be rested. The mere circumstances that the truck was in the possession of the seller or his assignee for repairs at the time of an alleged breach of the Conditional Sales agreement by failure to pay installments, would not deprive such party of his right of retaking the truck. It might be necessary to serve notice that the truck had been retaken in order to properly fix the ten-day period of detention before sale required by section 18 of the “Conditional Sales act,” but there is no allegation of a failure so to do.

The real purpose of this, defense becomes manifest when we read defendant’s brief, for there we learn that the contention of the plaintiff is that certain repairs were made to the truck by the plaintiff for which a charge of $126.10 was made, and when this was not paid by the conditional vendee, 'Tri-County Carrier Company, the plaintiff, refused to deliver up the truck until the bill was paid, and that plaintiff, therefore, claimed a lien upon the truck which destroyed the plaintiff’s right to retake the truck under the conditional sales ■agreement by virtue of section 24 of the “Conditional Sales act” which provides inter alia as follows:

“But such right of retaking shall not be exercised by the •seller after he has collected the entire price or after he has •claimed a lien upon the goods or attached them, or levied upon them as the goods of the buyer.”

The difficulty with this contention is that the criticised defense does not set forth any such claim. There is no allegation that any charge was made for the repairs, nor that the truck was being held for any repair bill whatever. Nothing is alleged to show that the truck was being held under any lien at the time stated. This defense is, therefore, clearly frivolous and will be stricken out for that reason.

The “fifth defense” is stated as follows:

“1. The plaintiff by taking possession of the motor truck, :and selling the same under the conditions set forth in the previous defense, retained the said motor truck as its own property and thereby discharged the purchaser, Tri-County Carrier Company, and this defendant from all obligations.”

What has just been said regarding the fourth defense is applicable here. There is no allegation that the truck was being held under a lien for a repair bill at the time it was sold under the conditional sales agreement. This defense will also be stricken out as frivolous.

The “sixth defense” states that:

“The filing district under the provisions of the Conditional Sales act in respect to the sale of the motor truck which is the subject-matter of this suit, is the county of Passaic, in the State of Hew Jersey, and none of the acts required under said Uniform Conditional Sales act respecting sale of said motor truck were done and performed in said filing district.”'

The plaintiff moves to strike out this defense on the .sole-ground that it is frivolous. A frivolous plea is one which on its face sets up no defense, although it may be true in fact. National Surety Co. v. Mulligan, supra. There is no-allegation in the complaint to show where the motor truck in question was retaken, although it is alleged that the truck was sold in the State of Hew York. Since the place of retaking-is an important element in determining the question raised by this defense, as will hereafter appear, it is apparent that, the pleading cannot be attacked as frivolous although it may be untrue in fact.

The affidavits submitted with this motion, however, disclose that a very interesting question will arise under this-defense at the trial, which it may be well to examine here to-pave the way for its disposal at that time.

The defendant contends that in the case of goods retaken in another state all notices of sale required to be posted and advertised must be posted and advertised in the filing district where the conditional bill of sale is filed and not at the-place where the goods were actually retaken.

Section 19 of the “Conditional Sales act” provides inter alia as follows:

“If the buyer does not redeem the goods within ten days after the seller has retaken possession, and the buyer has paid at least fifty per centum of the purchase price at the time of the retaking, the seller shall sell them at public auction in the state where they were at the time of the retalcing, such sale to be held not more than thirty days after the retaking. The seller shall give to the buyer not less than ten days’ written notice of the sale, either personally or by registered mail, directed to the buyer at his last known place of business or residence. The seller shall also give notice of the sale by at least three notices posted in different public places within the filing district where the goods are to be sold, at least five days before the sale. If at the time of the retaking five hundred dollars or more has been paid on the purchase price, the seller shall also give notice of the sale at least five days before the sale by publication in a newspaper published or having a general circulation within the filing district where the goods are to be sold.”

A filing district is defined in section 1 of the same act as follows :

“Filing district” means the subdivision of the state in which conditional sale contracts, or copies thereof, are required by this act to be filed.”

Conditional sales contracts, or copies thereof, are required by section 6 of the act to be filed as follows:

“The conditional sale contract or copy shall be filed in the office of the countjr clerk, or where there is a register of deeds in the office of such register of deeds in the county in which the goods are first kept for use by the buyer after the sale.”

Section 14 of the act provides inter alia as follows:

“When, prior to the performance of the condition, the goods are removed by the buyer from a filing district in this state to another filing district in this state in which such contract or a copy thereof is not filed, or are removed from another state into a filing district in this state where such contract or copy is not filed, the reservation of the property in the seller shall be void as to purchasers and creditors described in section five, unless the conditional sale contract or a copy thereof shall be filed in the filing district to which the goods are removed, within ten days after the seller has received notice of the filing district to which the goods have been removed.”

The intention of the legislature to be gathered from the foregoing excerpts from the act is that goods, if retaken in another state, are not to be brought back to this state for sale, but are to be sold in the state where retaken.

' What is meant by requiring the notices and advertisement of the sale to be posted and published “within the filing district where the goods are to be sold” is not quite so clear at first reading, when we see that no definition of or provision for a “filing district” outside of this state is specifically set forth in the act. If it means that the notices must be posted and published in the filing district where the contract of conditional sale is filed, then what purpose is served by the words “where the goods are to be sold” at the end of the clause just quoted ?

Two purposes are served by requiring due notice to be given of the sale. One is to appraise the conditional vendee thereof in order that he may properly protect his interest. The other is to procure a good price by informing prospective bidders. The former purpose is accomplished by compliance with section 19 of the act which requires that “the seller shall give to the buyer not less than ten days’ written notice of the Sale, either personally or by registered mail.” The other purpose of bringing in bidders is accomplished by the notices of sale required to be posted in public places and advertised in a newspaper. Keeping these different purposes in mind, it will readily be seen that if a truck is taken from a filing district in New Jersey into the State of California, and notice of a sale in -that state as required by our act is served upon the buyer either personally or by registered mail, he is put in a position to protect his interest, but if notice to the public is required to be posted and published in the filing district in New Jersey where the contract of conditional sale is filed, it probably would not be productive of many bidders at the sale in California. The statute in question is a uniform act adopted by many states for the purpose of making the law respecting conditional sales uniform throughout the country, and the definition of a filing district, and the requirement for filing the sales contract in such district were incorporated in the act with this thought in mind, and so we find that in defining such a district the specification is not confined to this state, but reads: “Filing district means the subdivision of the state” (not this state) “in which conditional sale contracts or copies thereof, are required by this act to be filed.” And as noted above they are required to be filed in the first instance in the appropriate office “in the county in Avhich the goods are first kept for use by the buyer after the sale.” This does not specify a county in this state, but is applicable to any state, as otherwise there would be no protection in case the goods are sold here for use in another state.

Undoubtedly the acts required to be done by our “Conditional Sales act,” “within the filing district where the goods are to be sold,” are to be done when the goods are retaken in another state, within the county of such state where so retaken. As already observed, however, this sixth defense cannot be stricken out as frivolous.

The “seventh defense” is stated as follows:

“3. At the said sale held on June 21st, 1929, mentioned in the complaint, the said plaintiff purchased said motor truck for $1,000.

“2. Thereafter plaintiff agreed to redeliver truck to the defendant upon defendant assuming the payments still due on truck.

“3. Thereafter plaintiff claiming that said truck was resold by mistake, agreed with defendant to credit the said difference between $2,400 and $1,000, or the sum of $1,400, to any claims that it would make in respect to the account for the deficiency, if any were due.

“4. By reason thereof, the said defendant is entitled to the sum of $1,400 in reduction of extinguishment of the said plaintiff’s claim.”

Of course, the rule is that doing or promising to do what one is already legally bound to do, is no consideration for a contract. The rule is grounded upon the reason that the promisor gets no more in return for his promise than the promisee was already bound to give, and, therefore, receives no consideration. But it is equally true that the doing or undertaking of anything beyond what one is already bound to do, though of the same kind and in the same transaction, is a good consideration. Marten v. Brown, 80 N. J. L. 143; 16 Atl. Rep. 1009.

In I he instant case the plaintiff having seized the truck and sold it on account of the unpaid purchase price, could only look to the defendant for the deficiency resulting from such sale. If the seventh defense means that the defendant agreed to assume the payment of all installments not met by the conditional vendee of the truck, without crediting the $1,000 received at the public sale, and this may be assumed for the purpose of this motion, inasmuch as the truck was to be turned over to the defendant, then the defendant engaged to do something beyond what he was required to do, for he was only answerable for the deficiency resulting after applying the proceeds of the public sale to the unpaid balance of the purchase price. There would, therefore, be a sufficient consideration for this new agreement. If afterward the plaintiff failed to deliver the truck to the defendant it was open for them to compromise by the further agreement to allow defendant a credit of $1,400 on account of the plaintiff’s present claim against the defendant upon the guaranty.

I consider this defense as equivalent to a plea of payment pro tanto, and for that reason a proper subject of defense to that extent, rather than a counter-claim. This becomes more evident when we consider that the allegation is that the "plaintiff agreed with defendant to credit the said difference between $2,400 and $1,000, or the sum of $1,400 to any claims that it would make in respect to the account for the deficiency, if any were due.” The $1,400 is not to he paid to the defendant, but only credited against any deficiency for which the defendant would be liable under his guaranty. It would be available as payment pro tanto, but not give the defendant the right to collect the amount from the plaintiff.

It is apparent from what has been said under this head that the seventh defense cannot be struck out as frivolous.

The "eighth defense” is abandoned by the defendant and will, therefore, be stricken out for that reason.

Turning now to the body of the answer which consists entirely of admissions and denials of the allegations of the complaint, we find that the motion is to strike it out in its entirety as sham or frivolous. It follows, therefore, that if any -of the denials is supported by affidavits and raises a good defense, the whole of this part of the answer must stand. Such a situation arises from the denial of the allegations set up in the sixth paragraph of the body of the answer to the effect that the truck in question was sold at public auction on June 21st, 1929, after due and timely notice to the defendant in .accordance with the “Conditional Sales act,” &e.

Defendant’s affidavits raise a serious question as to whether the sale was actually held on June 21st, 1929, and, of course, if it was not, this fact would constitute a good defense to this action. It follows, therefore, that the entire body of the answer cannot be stricken out as either sham or frivolous.

We now come to the counter-claim which is expressed very briefly as follows:

“By way of counter-claim, the defendant says: It repeats the allegations from the first to the seventh defense of the .answer inclusive. By reason thereof, the said defendant has suffered actual damages in the sum of $3,000, which he now ‘Counter-claims.”

Since the first, third, fourth and fifth defenses have been stricken out and cannot, for that reason, be incorporated in the counter-claim, it remains to be seen whether the second, sixth and seventh defenses set up matter properly available by way of counter-claim, under the Practice act of 1912. Pamph. L. 1912, p. 370. The defendant seeks to recover damages under the counter-claim against the plaintiff as assignee of the conditional sale contract. The second and sixth defenses as will be seen above merely set up matters of defense, by way ■of excusing performance on the part of the defendant of his contract of guaranty, and would not give a cause of action to the defendant as a guarantor of performance of the conditional sale contract. The seventh defense, as above observed, if true, merely gives the defendant the right to a credit as against the plaintiff’s claim, and is, therefore, in the nature of a plea of payment pro tanto. It would not, for that reason, give defendant the right to an affirmative judgment against the plaintiff. In fact this pleading merely asks that the sum of $1,400 be credited in reduction or extinguishment of the-plaintiff’s claim.

The counter-claim does not, therefore, set forth a good cross-action against the plaintiff and will be stricken out as frivolous.

The result reached is that the first defense, paragraph or subdivision (d) of the second defense, the third, fourth, fifth and eighth defenses and the counter-claim will be stricken out for the reasons hereinbefore stated, but the remainder of the answer will stand, and no costs will be allowed on this-motion.

In view of what has been said, however, regarding the third 'defense, if the defendant contends that there has been the-breach of a warranty made by the plaintiff to the defendant’ whereby he has been damaged, he may have leave to file an. amended counter-claim within ten days from April 25th. properly setting forth his claim in this regard.


author: Pee Cubiam.

text:
    MATHILDA HUNZIKER, PROSECUTOR, v. CIVIL SERVICE COMMISSION ET AL., DEFENDANTS.
    Submitted January 29, 1932
    Decided June 2, 1932.
    Before Justices Tren chard and Donges.
    Bor the prosecutor, Minium & Weinberger.

    Bor the defendants, John D. Masterton.

   Pee Cubiam.

This writ of certiorari brings up the determination of the civil service commission sustaining the action of the prosecutor of the pleas of Passaic county in discharging Mathilda Hunziker from her position as telephone operator in his office.

Miss Hunziker was employed in September, 1930, after securing the highest rating on examination by the civil service commission. Her services apparently were entirely satisfactory under the former prosecutor of the pleas and also under the present prosecutor until July, 1931. On July ,21st, 1931, she was discharged, when the prosecutor of the pleas notified her in writing that she was suspended on the following charges:

“1. Gross violation of the rules of the office.

“2. Improperly conveying confidential information concerning the routine and activities of the office.

“3. Improperly receiving and distributing mail in violation of office rules.”

The testimony appears to establish that there were no written or definite rules of the office. The prosecutor of the pleas says that shortly after he assumed that office in April, 1931, he orally instructed the employes as to the course of conduct that he required them to pursue with relation to matters in the office. He says that he told them that confidential information was not to be disclosed to anyone in the office or outside thereof. He said that he told Miss Hunziker that there had been leaks in the office and that the telephone was an important place to watch to prevent such leaks. He further said that he required that all mail should be brought to him. Miss Hunziker, in her testimony, clearly indicated that the instructions were not as definite and specific as would appear from the testimony of the prosecutor of the pleas.

The testimony would seem to present the following facts: That on July 10th, 1931, a group of detectives were sent out to make some raids in Passaic. Miss Hunziker was at the telephone switchboard, and she testified that, as these men were out of the office, she heard one of them say they were going to Passaic. This was between nine and ten o’clock in the forenoon. At about four o’clock in the afternoon, one Boyle, a prosecutor’s detective, came on duty and asked Miss Hunziker where “all the gang” was. According to her testimony, she replied that they had gone to Passaic on a raid. She said she was not informed of the purpose of the trip to Passaic, but assumed that it was a raid. This was asserted to be such a violation of the “rule of the office” that confidential information must not be divulged to other members of the staff as to make imperative the dismissal of Miss Hunziker.

There can be no doubt that it is highly important that confidential matters coming to the knowledge of persons connected with the office of the prosecutor of the pleas should not be divulged. Advance knowledge of contemplated action would often entirely destroy the efforts to efficiently carry on the work of that office.

In the instant case, however, it does not appear that Miss Hunziker disclosed any confidential matter or that she disclosed any matter that was not, at that time, public property. The raids started about nine o’clock in the morning. The destination was openly stated by one of the raiding party. At four o’clock in the afternoon, when, as a matter of fact, the raids were completed, Miss Hunziker stated to one of the office staff that the force had gone to Passaic on a raid. The prosecutor of the pleas did not charge, and expressly disclaimed charging her with responsibility for any leak in advance of the contemplated action.

The civil service commission found as follows: “Prom the testimony adduced, I am compelled to say that the appellant apparently has not realized the importance of the position which she occupied with respect to the discussion of confidential action taken by the prosecutor and his staff. Regardless of her own intentions I can do no other than say that she has failed to exercise the discretion which is an absolute requirement in a position of this kind.”

The prosecutrix of this writ was charged with gross violation of the rules of the office and with improperly conveying confidential information. From the record before ns, we are bound to conclude that these charges have not been sustained.

The other charge had to do with the receipt of mail and apparently was considered of no importance by the civil service commission. It would appear that four letters were received addressed to Miss Hunziker containing messages directed to the first assistant prosecutor. Miss Hunziker claims that all of these letters were given to the prosecutor of the pleas, who handed back three of them unopened, opening the fourth letter, which contained a message for the assistant prosecutor. No attempt is made to show that the letters were in any mannner improper or that the course pursued embarrassed the administration of public business. The prosecutor testified that he handed the three letters to Miss Hunziker and opened the fourth. So that it appears beyond contradiction that all of the letters were in the hands of the prosecutor of the pleas. There does not appear any concealment of these letters or any impropriety touching their receipt and disposition as would warrant dismissal of Miss Hunziker for her connection therewith.

Both parties hereto concede that the rule is properly stated in Hart v. Duluth, 53 Minn. 238, to be:

“The cause [for dismissal] must be one which specifically relates to and affects the administration of the office, and must be something of a substantial nature directly affecting the rights and interests of the public.”

Tested by this rule, we conclude that the record brought up does not sustain the charge of violation of rules in receiving and distributing mail.

The order under review will be set aside, without costs.


author: Per Curiam.

text:
    LOUIS GIORANDO ET AL., PROSECUTORS, v. JEROME BRADY, DIRECTOR, ETC., ET AL., DEFENDANTS.
    Submitted January 29, 1932
    Decided June 2, 1932.
    Before Justices Trenchard and Donges.
    Por the prosecutors, Spaulding Frazer.

    Por the defendant, James Benny.

   Per Curiam.

These eight writs of certiorari brings up for review the action of the several directors of the several departments of the city of Bayonne in dismissing prosecutors from the employ of the city. The eases are submitted together, and, raising a point common to them all, may be disposed of as one case.

The ground of attack is that each of the prosecutors held a position for an indefinite term and that he was^an honorably discharged soldier from the United States service, and was, therefore, exempt from discharge, except for cause. 4 Comp. Stat., p. 4873; 2 Cum. Supp. Comp. Stat., p. 3330.

The state of the case exhibits that each of the prosecutors was employed for a term ending December 31st, 1928, and was holding under such appointment. Each was dismissed in May or June, 1931.

Prosecutors contend that the act protects them in their several places, but we think this is not so. The act in question grants immunity from discharge of honorably discharged veterans without cause only where the term of employment is not fixed by law. "When the term of employment is fixed by the governing body, as admittedly occurred in this case, the term is fixed by law. McGrath v. Bayonne, 85 N. J. L. 188; 89 Atl. Rep. 48. Hence the provisions of the act do not protect prosecutors in the employment in question.

But prosecutors contend that because they continued in such employment after the time fixed for the determination of such employment, they then had the status of employes holding without the fixing of any term. But our courts have held to the contrary. Where one is employed for a fixed term and continues thereafter to occupy the place without other appointment, he does not acquire any other status than that of a hold-over. And as a hold-over he does not obtain the benefits of the Veterans’ act in question. Biddle v. Atlantic City, 91 N. J. L. 679; 103 Atl. Rep. 386; Turtur v. Turley, 103 N. J. L. 526; 138 Atl. Rep. 209.

We conclude that the writs should be dismissed, with costs.


author: Pee Curiam.

text:
    JOHN A. PENN, PROSECUTOR, v. THE MAYOR OF THE BOROUGH OF COLLINGSWOOD, NEW JERSEY, RESPONDENT.
    Submitted January 29, 1932
    Decided June 2, 1932.
    Before Justices Tkenchakd and Donges.
    For the prosecutor, Albert 8. Woodruff.

    For the respondent, Howard L. Miller.

   Pee Curiam.

This writ brings up the action of one Joseph H. Van Meter, who is the director of public affairs and public safety, and likewise the mayor of the borough of Collingswood. Prosecutor, Penn, was chosen on June 10th, 1929, by resolution of the board of commissioners, comprising three members, to be solicitor of the borough. The resolution is that “the following appointments be made to the offices indicated until the annual meeting in May, or until their successors are appointed and qualify,” and amongst the persons designated is the said Penn.

It appears by the record that on June 16th, 1931, Joseph H. Van Meter, mayor, wrote a letter to Penn requesting his resignation to take effect Wednesday, July 1st, 1931. Thereafter on August l^th, 1931, Joseph II. Van Meter, mayor and director of public affairs, wrote to Penn as follows:

“You are hereby suspended from your position as solicitor for the borough of Collingswood for the following reasons * *

And then follow seven reasons, five of which refer to remarks that the prosecutor is alleged to have made touching the mayor, and particularly with reference to the administration of the office of mayor, and generally reflecting upon the mayor. The notice further called upon Penn to answer in writing within ten days, or he would be discharged, and stated that in the event of his filing an answer, he would be given a public hearing.

Thereupon Penn answered by denying the jurisdiction of the mayor to try him upon any charges. The mayor then gave notice that on Thursday, the 3d day of September, a. d. 1931, at the hour of ten o’clock in the forenoon, at the council chambers of the borough, testimony would be heard upon the complaint served upon Penn in the matter.

Thereafter on August 3d, 1931, the mayor notified Penn that, inasmuch as Penn had failed to answer the charges and failed to appear at the hearing, he was discharged. This notice evidently is in error as to date, but it so appears in the records.

The minutes of the hearing, as certified by the borough clerk, are as follows:

“The mayor asked if Mr. Penn was present and getting no response asked if Mr. Penn was represented and again getting no answer. The mayor then stated that Mr. Penn not being present or represented the case could not be heard, the witnesses could go and the ease is dismissed.”

Two infirmities appear to be insurmountable to the sustaining of the action of the mayor. First, it does not appear that the judicial power to try this officer was delegated to the mayor. Under the amendment of 1915 to the Walsh act, it is beyond question that the judicial power, as well as the executive and administrative powers, are required to be distributed to the several directors of the departments created. It has been held that -when the power is so delegated, the officer to whom the judicial power is delegated is the only one who may hear charges. Foley v. Orange, 91 N. J. L. 554; 103 Atl. Rep. 743. But nowhere does it appear that control of this public office was put in the department of public affairs, or in any department over which the said Yan Meter had jurisdiction. While there was a requirement by statute that it should be delegated, there does not appear from the record to have been any such delegation. It might have been delegated to some other department, which would have the sole right to hear and determine such charges.

There does not appear to be any requirement or provision of the statute that the duties of borough solicitor are under the director of public affairs. Under the law, the matter of the delegation of powers and supervision of subordinate officers is in the hands of the entire commission to be delegated as the commission sees fit, and no office is necessarily attached to any department, unless the powers delegated necessarily include that office, as for example, if the director of prrblic safety is put in charge of the police department, it would follow that the members of that department would come under the supervision of such director; and here, if the law department was put under the mayor or director of public safety, then members of that department might be assumed to come under his supervision. But in this record it does not appear that such duties have been so assigned. It might easily be that they were assigned to the director of revenue and finance or to some other director.

2. While there may be some doubt about the propriety of a director of a department sitting to hear charges which were preferred by himself against a public officer in his department, it seems not necessary to determine this, because, if there were adequate charges made and if the mayor as director of public affairs had authority to try the charges, the record does not disclose that there was any evidence to support the charges and that there was any finding by him of the guilt of the prosecutor. He seems to have assumed that silencé upon the part of Penn was tantamount to an admission of guilt and, without the swearing of witnesses or the hearing of anything upon which a judgment could be pronounced, he appears to have notified the prosecutor that he was discharged. Nowhere in the record does it appear that there was any finding of guilt.

We conclude, therefore, that the action of the mayor should be set aside, and it is accordingly so ordered, but without costs.


author: Pur Curiam.

text:
    ETHEL SIGLEY, DEFENDANT, v. MARATHON RAZOR BLADE COMPANY, INCORPORATED, PROSECUTOR.
    Submitted January 29, 1932
    Decided June 2, 1932.
    Before Justices Trenchard and Donges.

      For the prosecutor, Joseph C. Paul.

    For the defendant, SlcejfLngton, Walker & Corrigan.

   Pur Curiam.

This writ brings up a determination of the workmen’s compensation bureau awarding compensation to the petitioner-defendant for injuries sustained from an accident arising out of and in the course of her employment by the prosecutor. It is not denied that there was a compensable injury, but the amount of the award is questioned.

Petitioner was struck in the eye by a safety razor blade and lost the sight of the eye. Compensation for this injury was made under paragraph S of section 11, and this part of the award is admitted to be proper. However, the deputy commissioner also found that as a result of the accident petitioner had become afflicted with a neurotic condition which justified a further award of ten per cent, of total permanent disability.

Prosecutor first argues that it was improper to make the award in two amounts, i. e., for the loss of the eye and for the ten per cent, permanent disability; but that the award should have been in one sum of proportionate permanent disability equal in amount to the sum of the two awards. We see no merit in this, and furthermore it is a mere matter of form.

The main point argued is that the recovery for the loss of an eye is limited to the amount specified in paragraph S, that is two-thirds of the wages for one hundred weeks. In Nitram Co. v. Essex Common Pleas, 84 N. J. L. 243; 86 Atl. Rep. 435, Mr. Justice Kalisch said:

“The trial judge allowed the damages fixed by the statute for the partial, but permanent, injury to the fingers, and also allowed in addition for the temporary disability arising from the infection. He based his action on paragraph 11, clause A of section 2, of the act which concerns temporary disability, and clause C of paragraph 11 which provides for disability partial in character but permanent in quality. The trial judge pursued the proper course. The two injuries were different in character, although the result of the same accident.

“The prosecutor’s contention is that no compensation can be awarded under more than one clause of paragraph 11 of section 2 of the act. * * *

“We think that both the language and spirit of the act favor the construction put upon it by the trial judge.”

In Bateman v. Smith, 85 N. J. L. 409; 89 Atl. Rep. 979, which is relied on by prosecutor, the situation was somewhat different. There a man seventy-three years of age lost a fQot and the lower court held that, because of his age, this amounted to total permanent disability. The Supreme Court held that the loss of the foot must be compensated for as provided in the statute, and that the permanent disability because of age could not be considered. The question there was not of a separate injury but of the effect of the one injury.

The judgment is affirmed, with costs.


author: Peb Cueiam.

text:
    STATE BOARD OF MEDICAL EXAMINERS, DEFENDANT, v. HERMAN KEMPKES, PROSECUTOR.
    Submitted January 29, 1932
    Decided June 2, 1932.
    Before Justices Trenchard and Donges.

      For the prosecutor, John H. Gall.

    For the defendant, Robert Peacock.
   Peb Cueiam.

This writ brings up a judgment of the First District Court of the city of Paterson finding the prosecutor guilty of a violation of the act regulating the practice of medicine and surgery and imposing a fine of $200. The trial was held on February 28th, 1928, at the conclusion of which the trial judge announced a finding of guilty. However, it appears that no judgment was entered until May 8th, 1930. Thereafter the present writ was allowed.

1. Prosecutor argues that the restriction upon the practice of medicine in the act is violative of the constitution of this state in that it restrains freedom of speech and prevents prosecutor from the pursuit of happiness, &c. However, the regulation of the practice of medicine has been held to be a proper exercise of the police power. State Board v. Buettel, 102 N. J. L. 74; 131 Atl. Rep. 89.

2. It is argued that the act violates the due process clause of the constitution of the Hnited States. We think there is no merit in this contention.

3. Point three is that the complaint is defective. However, it charges an offense in the language of the statute. This has been repeatedly held to be sufficient. State v. Braad, 77 N. J. L. 486; 72 Atl. Rep. 131. The statement that the offense was committed in the city of Paterson was sufficient. Further, no objection on this ground was made at the trial.

4. It is argued that the record does not show of what specific offense prosecutor was convicted, or that he was convicted at all. This was not necessary. The action was a civil one for the recovery of a penalty, and judgment for the plaintiff is sufficient.

5. It is contended that the return to the writ is defective because it does not set out a proper record of conviction, showing the adjudications of the District Court, the evidence presented, and the findings of fact. We see no merit in this contention. The judgment for the plaintiff is shown on the docket. The evidence and a complete transcript of the trial is presented in the supplemental state of the case. The evidence shows guilt beyond any doubt. In fact the prosecutor admitted the acts complained of and claimed to have supernatural power to heal. The testimony shows him to be a very dangerous individual from whose operations the public should be protected.

The judgment is affirmed, with costs.


text:
    MURRAY LEVINE AND ROBERT BARBALET, PROSECUTORS, v. STATE OF NEW JERSEY ET AL., RESPONDENTS.
    Submitted January 27, 1932
    Decided June 6, 1932.
    Before Justices Trenchard and Donges.
    Bor the prosecutors, Raskin & Hornstein.

    Bor the respondents, Frank J. Reardon.

   Per Curiam.

Prosecutors of these writs of certiorari, Murray Levine and Robert Barbalet, were taken into custody on January 24th, 1931, in Jersey City, as they were on a public highway known as Monticello avenue. They were arraigned on Bebruary 11th, 1931, before the Birst Criminal Court of Jersey City, and each was found guilty of being a disorderly person within the meaning of section 1 of the act entitled “An act concerning disorderly persons” (Eevision of 1898, as amended Pamp'h. L. 1928, p. 202), the pertinent part of which is as follows: “All * * * common thieves, burglars or pickpockets, * * * shall be deemed and adjudged to be disorderly persons.”

Appeal was taken to the Hudson County Court of Common Pleas, which affirmed such convictions. It is these affirmances that are sought to be reviewed in these proceedings.

Prosecutors file seven reasons for reversal in the following form:

“1. There was no valid complaint, or complaint having legal validity filed in the case.

“2. The conviction is contrary to the weight of the evidence.

(a) There is no testimony of any kind to support the conviction.

(b) The prosecutor is presumed to be innocent.

“3. Improper testimony was illegally admitted and received in evidence over objection.

“4. The record of conviction is defective, erroneous and illegal.

“5. The substitution of complaints was illegal and in violation of the constitutional rights of the prosecutor.

“6. The “act concerning disorderly persons” (Eevision of 1898), or that portion thereof under which the charge against the prosecutor is laid, is unconstitutional and void both under the Hew Jersey constitution and under the constitution of the United States, and is contrary to the fifth amendment of the constitution of the United States.

“7. That the proceedings below are in divers other respects illegal, unjust, oppressive and void.”

It is apparent that the first, third, fourth, fifth and seventh reasons fail to set out the ground with that particularity and definiteness required, and might properly be disregarded. However, we proceed to dispose of the matters submitted upon the merits.

The complaints upon which prosecutors were tried set out that they were disorderly persons in that they were burglars, and were loitering in and upon a public street in Jersey City, at a definite location therein. The original complaint was not specific in the ground alleged to constitute prosecutors disorderly persons, but the trial was had upon the amended complaint which was made at least five days before the trial. We are of opinion that the complaint upon which the trial was had was sufficient. It is likewise apparent that the making of a new complaint, upon which the trial proceeded, in no way violated the rights of the prosecutors.

The testimony demonstrated that each of the prosecutors was convicted of at least three offenses of burglary committed in the State of New York, except that Barbalet was convicted in New Jersey of receiving stolen goods. They were evasive in their answers to questions propounded by detectives who interrogated them on the street; gave false names; gave false addresses; gave untrue accounts of their reason for being in Jersey City; were loitering along the street and acting like persons who had no proper reason for their presence at the place; and, altogether, acted in such manner as to warrant the suspicion of the public authorities that they were not upon an honest errand. It appears, therefore, that there is ample testimony to sustain their convictions as disorderly persons under the complaint. Rothman v. State, 102 N. J. L. 43; 130 Atl. Rep. 888.

It is objected that the records of conviction could not be admitted in evidence. We think they were properly admitted to show the character of the prosecutors. One can be adjudged a common burglar only upon convictions thereof.

We are not impressed by the charge that the records of conviction herein are defective, erroneous and illegal. All of the matters asserted by prosecutors as essental to a proper record of conviction appear to have been fully complied with. The prosecutors raised no objection at their trial to a failure to be apprised of the complaint against them; they appeared by counsel and cross-examined witnesses; produced witnesses and were themselves sworn in their own behalf. The trial was proceeded with in an orderly wajr, and without question by prosecutors of the jurisdiction of the court. The records of conviction appear to be a full compliance with section 85, Comp. Stat., p. 3993. There is no merit in this contention.

It is said that the act is unconstitutional. Our attention is not directed to the respects in which the act is said to violate the constitution of the State of New Jersey or of the United -States, except that it is unconstitutional to convict the prosecutors in this case. We are of opinion that there is nothing in this point.

Upon consideration of the whole case and having regard to the several points urged by prosecutors, we conclude that the judgments under review should be affirmed, with costs.


text:
    JOHN J. HAMILL, PROSECUTOR, v. CITY OF CLIFTON ET AL., DEFENDANTS.
    Submitted January 27, 1932
    Decided June 6, 1932.
    Before Justices Tbenchabd and Donges.
    For the prosecutor, Edward F. Merrey.

    For the defendant city of Clifton,' John C. Barbour.

    For the defendants Thomas G. Varentoni et al., John J. Clancy and Merritt Lane.

   Per Curiam.

This writ of certiorari brings up the action of the city council of the city of Clifton in appointing twenty men to the fire department of that municipality, eighteen of whom were appointed to new positions created by action of the city council.

On November 4th, 1924, an ordinance was adopted, entitled “An ordinance to establish, regulate and govern the fire department of the city of Clifton,” which was amended on January 21st, 1930, and the' amendment being vetoed by the mayor, it was passed by the city council over his veto on February 4th, 1930. Prosecutor Hamill was a member of the council and voted to pass the amended ordinance over the veto of the mayor. Pertinent sections of the amended ordinance provide:

“Section 6. The personnel of the full paid fire department shall consist of a chief engineer and as many assistant engineers, lieutenants, master mechanics and firemen as the city council may, from time to time, deem necessary for the efficient working of said department.

“Section 9. All members of the full paid fire department shall be appointed by the fire committee, on the confirmation of the city council * * *.”

Prosecutor Hamill contends that this ordinance is invalid because it does not fix the number of firemen and because it empowers the fire committee to establish the number thereof. Prosecutor, as a member of the council, voted for the amendment .and made nominations of members of the fire department, by virtue of his position as a member of the fire committee. Defendants assert that such conduct estops him from now objecting to action under said ordinance. We do not deem it necessary to decide whether or not he is estopped to question the validity of the ordinance, because we think it is valid legislation. Article 17, section 1, of the Home Eule act (Pamph. L. 1917, ch. 152), provides that the governing body of every municipality shall have power to pass ordinances to establish, maintain, regulate and control a fire department, and to control the appointment of the members thereof. The city of Clifton had previously adopted the provisions of chapter 135 of the laws of 1899, which is to the same general effect.

It would appear, therefore, that the city had, by ordinance, created the department and had designated the method of appointment of employes of such department. That method was by appointment of the fire committee and then by confirmation of such appointment by the council. This was the method pursued in this case and appears to be in accordance with law. Anderson v. Weehawken, 97 N. J. L. 371; 118 Atl. Rep. 208.

For does the ordinance leave the number of firemen to be appointed to the caprice of the committee, because the ordinance provides for nomination by the committee and confirmation by the council, so that the final judgment as to the number of employes as well as the necessity for such appointments is in the council. Hence, the determination as to the number deemed necessary, from time to time, is in the council and not in the committee. This may be by resolution. As was said in Green v. City of Cape May, 41 N. J. L. 45.

“The city can exercise its power, either by resolution or ordinance, whenever it is not restricted to a particular method. It is only in organizing the department, in drafting a plan of government for it, or in prescribing the manner of the election of its officers and their duty, that the charter requires that the common council shall act by ordinance.

“The requirement ceases there. The temporary and recurring necessities of the department can be supplied by motion and order. The employment of hands * * * can be transacted by resolution.”

Many cases in our courts are to the same effect.

When the council confirmed the appointments it was, in effect, the expression of the judgment of the council that the number of men appointed were neeesssary for the protection of the municipality, and an approval of the designation of the individuals. The presumption is in favor of the validity of the acts of the municipal authority.

For do we think that the appointees were officers calling for their nominations separately and their election by roll calls. Certainly a fireman is not an officer of the municipality as contemplated in the statute invoked by prosecutor. Pamph. L. 1906, p. 173.

We have examined the several other grounds urged by prosecutor against the validity of the proceedings under review, and conclude that they are without merit.

The writ is dismissed, with costs.


author: Pee Cukiam.

text:
    JERSEY CITY METALS COMPANY, RESPONDENT-PROSECUTOR IN CERTIORARI, v. ELIZABETH BRENNAN, PETITIONER-DEFENDANT IN CERTIORARI.
    Argued January 20, 1932
    Decided June 16, 1932.
    Before Justices Tken-chaed and Donges.
    For the prosecutor in certiorari, Frank G. Turner.

    For the defendant in certiorari, Nellie T. Smith (Samuel Tartalsky, of counsel).
   Pee Cukiam.

Michael Brennan, the husband of the petitioner, was employed by the prosecutor, the Jersey City Metals Company, as a tinsmith helper. On December 27th, 1928, while working on the roof of a building, he fell from a ladder causing injuries to his chest. The company paid Brennan $63.14 compensation to February 2d, 1929.

On January 21st, 1930, Brennan filed a petition for compensation and the company answered, not denying the accident, nor the payment of the $63.14 as compensation, but averring that Brennan had recovered from his injuries. During the pendency of the cause Brennan died, as was claimed as a result of the injury sustained, and his widow on behalf of herself and minor children, filed a supplemental petition for compensation to which the company, although served therewith, did not file any answer. On the hearing the workmen’s compensation bureau found in favor of the petitioner.

The employer then sued out this writ and now contends in effect that there was no evidence of an accident apart from that of the physician, which it is contended was incompetent.

We can see no merit in this point because the accident, if not established by the admission contained in the company’s answer as we think it was, certainly was established at the hearing by the testimony of Abram S. Blum, the prosecutor of this writ (trading under the company name). He testified in effect that he was present at the scene of the accident at the time or immediately thereafter, and to matters of fact which proved the occurrence of the accident as alleged in the petition. Moreover, by the direction of the prosecutor, the workman was sent to a doctor and the doctor testified to the history of the matter given him by the patient for the purpose of treatment; so upon the whole case we conclude that there was ample evidence to support the finding of the workmen’s compensation bureau.

Hext it is said that the workmen’s compensation bureau did not have jurisdiction, and this question seems to be raised now for the first time. We think that it had jurisdiction. The point, though not plainly stated, seems to be that the petition was not filed in time. We think it was. The accident happened on December 27th, 1928. After the waiting period the employer paid Brennan $63.14, the last payment whereof being to February 2d, 1929, and since the petition was filed January 21st, 1930, it was within one year of the last payment, as required by the statute.

Lastly the employer argues that the supplemental petition, filed by the wife upon her husband’s death, was not served. The record is to the contrary. It discloses, we think, that it was served.

The judgment will be affirmed, with costs.


text:
    FRANK A. WAGNER, ADMINISTRATOR OF THE ESTATE OF MARY SEARS, AND GUARDIAN OF MABEL SEARS AND ROBERT SEARS, PETITIONER-DEFENDANT IN CERTIORARI, v. PRINCETON WORSTED MILLS, INCORPORATED, RESPONDENT-PROSECUTOR IN CERTIORARI.
    Submitted February 1, 1932
    Decided June 16, 1932.
    Before Justices Trenchard and Donges.
    For the prosecutor in certiorari, Wall, Haight, Carey & Hartpence.

    For the defendant in certiorari, Charles Quinn.

   Per Curiam.

This writ of certiorari brings up for review a judgment of the Mercer County Common Pleas Court affirming a judgment of the workmen’s compensation bureau in favor of the petitioner, who claimed compensation on account of the death of Ellsworth Sears, a workman employed by the Princeton Worsted Mills, which it was alleged arose out of and in the course of his employment.

The evidence shows that the decedent was working as a fireman in the plant of his emploj^er on a hot and snltry August day in 1929; he was thirty-nine years of age and in very good health; he was working around the boiler in a very oppressive atmosphere in which there was some coal gas. The testimony was to the effect that he became affected by the heat and asked his fellow workman to watch the gauge while he, Sears, went to get some better air. He passed around the fan and motor in back of the boiler to a point where there was a ladder leading to a platform which ran around both sides in back of the boiler. Perhaps he was not actually seen to fall, but his fellow workman testified: “I

seen Mr. Sears coming backwards trying to catch himself, he fell there in front of one of the doors.” The physical indications would seem to lead to the inference that his fall was the result of a misstep on the ladder. He was found at the foot of the ladder with “one hand on the first rung of the ladder.” He was bleeding considerably at the nose and he had red and black wounds or marks upon his temple and cheek, from which a fall from a more or less height might well be inferred.

The contention of the employer was and is that he did not die from accident, but from apoplexy. Opposed to this contention is the testimony of the only medical witness called (decedent’s family physician for twenty-four years and entirely familiar with his physical condition), who testified that he did not die from apoplexy, but that he died evidently by coming in contact with something producing physical violence resulting in a very considerable loss of blood.

In the face of this evidence we cannot say that the case is without ample and legal support in the evidence, especially in view of the fact that two independent and distinct tribunals who have considered the testimony reached the conclusion that the death was caused by accident arising out of and in the course of the employment.

The judgment will be affirmed, with costs.


text:
    ANNA LEVY, PROSECUTRIX, v. TOWNSHIP OF NORTH BERGEN, IN THE COUNTY OF HUDSON; ALLADAR MAKRAY, JOSEPH McLEAN AND HARRY W. RENNER, RESPONDENTS.
    Submitted February 1, 1932
    Decided June 16, 1932.
    Before Justices Trenchard and Donges.
    For the prosecutor, Mervin Herzfeld.

    For the respondents, William E. Sewell and John Milton.

   Per Curiam.

This writ of certiorari brings up three resolutions adopted by the board of commissioners of the township of North Bergen, which were designed to effect a complete evaluation and appraisal of all property in the township to enable the local board of assessors to make the assessment of the taxable ratables required by the municipal finance commission, pursuant to Pamph. L. 1931, ch. 340, p. 830, the municipal finance commission, consisting of the attorney-general, state tax commissioner and commissioner of municipal accounts, having been called into being in the manner provided for in that statute.

Section 306 of that statute (Pamph. L. 1931, ch. 340), approved April 28th, 1931, provides:

“The commission shall have power to require a reassessment of the taxable ratables of the municipality to be made by the proper municipal authorities as the basis for any sub¡sequent tax levy; and any tax duplicate based on such reassessment shall be used for all purposes in connection with ■.the levy, apportionment and collection of taxes.”

Section 307, p. 834, provides:

“The cost of such reassessment shall at the request of the .■governing body, be included in the amount of indebtedness to be refunded under this act.”

Section 406, p. 835, provides:

“This act shall take effect immediately, and, as to the ¡subject-matters hereof, shall supersede the provisions of all -other laws; provided, however, that nothing contained in this act shall be construed to impair in any way the obligations -of any contract, or the existing remedies of any creditor of .any municipality.”

Sections 306 and 307 of the statute were amended by Pamph. L. 1931, ch. 384, p. 1212, changing the word “reassessment” to “assessment.”

The township of Worth Bergen has accepted the provisions ■of the act and the municipal finance commission is functioning in the municipality. Since June, 1931, the board of ■commissioners of the township of Worth Bergen and the municipal finance commission have been engaged in the funding and refunding of notes, bonds, and other indebtedness of the township of Worth Bergen in the sum of approximately •$9,000,000, which notes, bonds and other indebtedness were in default or about to become in default when the municipality adopted the resolution creating an assessment commis.•sion, and the resolution appointing Alladar Makray, Joseph McLean and Harry W. Benner as assessment commissioners, "both dated June 3d, 1931.

The municipal finance commission required of the township an assessment of the taxable ratables of the municipality, and on August 19th, 1931, a resolution was adopted by the "board of commissioners authorizing and directing the director •of revenue and finance to enter into a contract with the respondents, Makray, McLean and Benner for a complete evaluation of all property located in the township for the purpose •of basing future assessments of taxable property of the township on a basis of equality for all taxpayers, for a sura not to exceed $30,000. In accordance with that resolution a contract was entered into on August 19th, 1931, by the township with the individual respondents, which contract was duly approved by the municipal finance commission.

It is stipulated that “upon the completion of the work set forth in the said contract, the same is to be submitted to the board of assessors of the township of North Bergen to enable them to make an assessment of the taxable ratables of said municipality.”

It is also stipulated that “the cost involved in the said contract is to be included in the amount of indebtedness to be refunded under the act entitled cAn act concerning municipal finances/ being chapter 340 of Pamph. L. 1931, p. 830, as amended by chapter 384, Pamph. L. 1931, p. 1212.”

It is also stipulated that “one of the reasons which prompted the making of the said contract was the importance of submitting to prospective purchasers of North Bergen obligations, information as to the true valuations of said township, in order that they may have knowledge of the assets back of any obligations which the township may seek to issue.”

Of the sixteen reasons assigned for the setting aside of the' resolutions, some attack the resolution creating the assessment commission, dated June 3d, 1931; others the resolution dated June 3d, 1931, appointing the respondents, Makray, McLean and Renner, as assessment commissioners; others attack the action of the board of commissioners in authorizing the director of revenue and finance, by resolution dated August 19th, 1931, to enter into a contract with the respondents Makray, McLean and Renner for the evaluation of the taxable property of the municipality.

We are not satisfied that any of the reasons assigned are meritorious.

As to reason 1: Prosecutrix apparently overlooks the fact that the resolutions attacked were adopted June 3d, 1931, whereas the amendment to the statute (Pamph. L. 1931, ch. 384, p. 1212), which changed the word “reassessment” to “assessment” was not adopted until June 30th, 1931.

Under reasons 2 to 4, inclusive, the contention is that since the statute requires the assessment to be made by the proper municipal authorities that this means the assessment must be made by the local board of assessors and that the board of commissioners are without power or authority to create an assessment commission. We think this is not decisive, if, as we think, the governing body had authority to .adopt the resolution of August 19th, 1931, authorizing the making of the contract with the individual respondents. The validity of the resolution of August 19th is dealt with below.

Under reason 5 the contention is that the assessment commission should have been created by ordinance and not by resolution. It is the settled law of this state that unless an act is required to be done by ordinance it may be done by resolution or ordinance. Burlington v. Dennison, 42 N. J. L. 165. In this case the act is not required to be by ordinance. Article XIV, paragraph 1, subdivision c, of the Home Rule act, chapter 152 of the laws of 1917, obviously has no application. The individual respondents are not employes within the meaning of that section.

Eeasons 6 to 11 inclusive, are repetition.

As to reasons 12 to 15 inclusive, the attack is against the resolution of August 19th, 1931, authorizing the making of the contract with the individual respondents for a complete •evaluation of the taxable property of the municipality. We .are not persuaded that it is invalid. To say that the assessments must be made by the local board of assessors does not touch the question as wo see it. The contract is not to make assessments; it is to make a complete evaluation of all property located in the township, to properly tabulate the same, including full supporting data, and to submit the same to the board of assessors of the township, with a copy thereof to the municipal finance commission. Under the statute “An .act for the assessment and collection of taxes (Revision of 1918),” Pamph. L. 1918, ch. 236, p. 847, the assessor is to ascertain the names of persons taxable and the true value of all taxable property. With respect to the means or sources >of information, by or from which the value of property is to be ascertained by the assessor, the act is not mandatory, but merely directory. State, Keeler v. Tindall, 36 N. J. L. 97. It is stipulated that upon the completion of the work set forth in the contract dated August 19th, 1981, the same is to be submitted to the board of assessors of the township of North Bergen to enable them to make an assessment of the taxable ratables of the township. The township and the municipal, finance commission have been engaged since June last in an effort to fund or refund $9,000,000 in notes, bonds or other indebtedness. A public emergency exists. The reason for the making of the contract is evident. It may well be essential to the success of the undertaking to regain the confidence of prospective purchasers of the obligations of the township; and it is stipulated that one reason for the contract in question was to be in a position to furnish prospective purchasers of the township obligations with information from sources satisfactory to them as to the true valuations of the taxable property of the township.

As to reason 16, complaint is made that the contract contemplates that the cost shall be included in the amount to be refunded under the statute. There seems to be no substance-in this point, since section 307, chapter 340 of the laws of 1931, expressly provides that the cost of making the assessment shall, at the request of the governing body, be included in the amount of indebtedness to be refunded under the act.. The contract has been expressly approved by the municipal finance commission.

The writ will be dismissed, with costs.