author: Kirkpatrick, J.

text:
    Middlesex County Orphans Court.
    In the matter of the probate of the will of Charles M. Freeman, deceased.
    Wills — Probate of — Lack of Testamentary Capacity Found— Undue Influence Not Found — Fraud in Making the Will Not Found.
    On probate.
   Kirkpatrick, J.

Doctor Charles M. Freeman died a resident of this county on the ?th day of March, 1923. At the time of his death Doctor Freeman was about sixty-four years of age. He left a will, the subject of this inquiry, dated July 12th, 1922.

Doctor Freeman, about twenty years ago, married Mary E. Wilkins, a celebrated American writer. Doctor Ereeman and his wife lived together in Metuchen, New Jersey, from the time of their marriage in apparent happiness and accord, until some time in 1919 or 1920. At this time Doctor Freeman and his wife separated and did not thereafter live together. It does not appear very clearly from the testimony whether any particular or specific incident or circumstance in their life brought about this separation, but it seems clear that the habits of Doctor Freeman continued over a long period of time, as hereinafter mentioned, had so completely changed his character, temperament and disposition as to make continued living together not only uncomfortable for Mrs. Freeman, but dangerous as well.

Doctor Freeman in his early life studied medicine, having graduated from the classical department of Rutgers CoPege and from the medical school of Columbia University. He never, however, actively practiced medicine, but was for some time connected with the bureau of immigration in a medical capacity.

During practically all of his adult life Doctor Preeman was engaged in the lumber, coal and building material busi-. ness in Metuchen, N. J., being for many years the president and general manager of the corporation of Manning, Preeman & Son, which company was successful and did a large business throughout the central portion of Middlesex county.

Doctor Preeman never had any children. At, the time of his death his next of kin and heirs-at-law were his widow, Mary E. Wilkins Freeman, and his four sisters, Sallie B. Preeman, Nellie B. Preeman, Jane Preeman and Augusta Preeman. None of his sisters ever married, and all work in some capacity to support themselves. In his early life, and up to a period shortly before his death, Doctor Preeman was a cultured and brilliant man. lie was a desirable and con genial companion and a man with whom it was a pleasure to converse and to meet socially and otherwise. This is abundantly disclosed by the testimony of many of his intimate friends. The testimony, uncontradicted, discloses that Doctor Preeman, even in early manhood, over-indulged in alcoholic drink to such an extent that, as early as 1907, he either had suffered from delirium tremens or had been on the verge of an attack of that malady. He also during that period, that is as early as 1907, and from that time on to the time of liis death used veronal, a drug described by medical experts as a sedative or hypnotic medicine, taken for the purpose of inducing sleep. There is also testimony that he liad taken morphine and other opiates, but apparently in no very groat quantity nor over a very extended period.

The doctor’s use of liquor or of drugs, or both, so affected this condition that some time between 1909 and 1911 he became an inmate of an institution for the treatment for drug users and persons with drink habit. The testimony does not disclose the result of the treatment received by Doctor Preeman in this institution. We may, however, infer that it was beneficial, because we find that he did not again become an inmate of any institution until 1919, when, at the suggestion of his friend Mr. Dinwicldie, he went to an institution at Belle Meade, New Jersey. At that time he was unable to get into his car without assistance, and did not recognize the road that he was traveling on. He was willing to leave the car at Belle Meade only upon the promise that he could get a drink upstairs. He was utterly helpless mentally and almost so physically. Doctor Freeman remained at Belle Meade for a period of two weeks, and then, having responded to treatment, was liberated in a much improved condition.

Doctor Freeman also was a patient at Dr. Towne’s sanatorium in New York City, but it does not appear whether this was before or after he was at the Belle Meade institution. Nor does it appear how long he remained at Dr. Towne’s sanatorium.

In 1920 Doctor Freeman voluntarily went to the state hospital for the insane at Trenton, being induced to do so through the urging of his friend, Mr. Dinwiddie. At the end of four weeks he escaped and came back to Metuchen. In August, 1921, he was again committed, after an examination by two physicians, to the state hospital at Trenton, and remained until October 3d, 1921, when he was released upon habeas corpus proceedings instituted in his behalf in the court of chancery. At the time of his release, in October, 1921, the testimony discloses that he was greatly improved in physical appearance and gave evidence of marked improvement in his mental condition, and that this improvement continued for a period of aboiit two months after his release. Early in December, however, Doctor Freeman, according to the testimony, commenced again to over-indulge in alcohol. Early in the year 1922 Doctor Freeman, who up to this time had lived in an apartment on Volkmar place over the garage used in connection with the lumber business, discontinued the services of the family of one Breen, with whom he had up to that time been living, and engaged the proponent, Harry Mohring and his wife, to come and live with him and care for his physical needs. From that time on to the time of his death Doctor Freeman continued to -live in the same apartment and the proponent and his wife continued to administer to his physical wants.

In March, 1922, Doctor Freeman secured the services of an old family servant, Lettie Patterson, who came to live in his family and continued there until the time of Doctor Freeman’s death. Lettie Patterson was called as a witness and testified that during the year that she was there the doctor drank and became intoxicated once a week, so that he could not control himself. His speech was thick and his thoughts scattered, and that during that time he took drugs. That on the day that he went to execute the will — he had been drinking that day — his condition was very bad, and he could not walk very good and could not talk very good, and he did not know just what he was doing. Pie had been drinking practically all day long that day. That he had had some drugs a couple of days before that. .She also testified that she put daily, while she was with him, a half pint of liquor under his pillow, and that he would drink it during the night. That this happened every night while she was with him. Her testimony is entitled to the utmost consideration, not only because of her demeanor upon the stand, her apparent sincerity and intelligence, but also because her testimony must be considered as being against her own interest, because by the terms of the will under attack she was a beneficiary to the extent of a thousand dollars’ legacy, which, if the will is denied, probate must fail.

During the last years of his life it appears that Doctor Freeman had alienated himself from many, if not all, of his former friends and companions, and that the last two years of his life his social intercourse was with persons much younger than himself and of a different social and intellectual station from those-with whom he had spent the earlier years of his life. This, briefly, and-without mentioning specifically the great mass of testimony from which this sketch is fabricated, shows a picture of the outstanding circumstances connected with the life and career of this unfortunate man.

After Doctor Freeman had been released from the state hospital in October, 1921, he to a certain degree managed the business of his corporation, but in May, 1922, his condition had become such that creditors of the corporation refused to continue to do business with the corporation if Doctor Freeman continued in its management. Some of the creditors discussed the advisability of having a receiver appointed because of Doctor Freeman’s mismanagement or lack of management of the corporation’s affairs. However, this step was not taken, but instead Doctor Freeman was pursuaded to make an assignment of his shares of stock in the corporation to Russell E. Watson, a reputable officer of this court, as a trustee. This assignment was made and Mr. Watson was elected the president of the corporation, and its business was thereafter conducted by Mr. Watson and Mr. Breen, who had long been the superintendent and active manager of the corporation’s business. Shortly after Doctor Freeman had made this assignment. he was introduced by Mr. Louis Mohring, the father of the chief beneficiary under the will offered for probate, to Mr. William H. K. Davey, an attorney of this state, living in Belleville and practicing in New York City. Doctor Freeman consulted with Mr. Davey with looking to the filing of a bill in chancery to set aside the assignment of his stock to Mr. Watson as trustee, and also at the same time discussed with him the making of a new will. At that time Doctor Freeman wrote out instructions for the preparation of his will in his own hand, and a will was prepared and executed by him some time in June. This will did not make any provision for his sisters. The discussion concerning the making of the will took place in Doctor Freeman’s automobile in his garage with Doctor Freeman and Mr. Davey seated in the automobile, Mr. Louis Mohring, the father of the chief beneficiary, standing outside of the automobile very near by it, Mr. Harry Mohring being in and out of the garage during all of the time. This discussion extended over a considerable period of time, although I do not recall that any of the details of the discussion is testified to by anyone. After this lengthy discussion all parties went to the dining-room in Doctor -Freeman’s home, and there Doctor Freeman wrote a lead pencil memorandum, which has been offered and marked as an exhibit in this case.

At the time this memorandum was written there were present in the room Mr. Davey, Mr. Louis Mohring, Lettie Patterson and Mrs. Harry Mohring, and Mr. Harry Mohring during a portion of the time. Mr. Davey reduced the will to writing and it was executed at his house at a later date, being witnessed by Mr. Davey, by Mrs. Davey and by Mr. Louis Mohring.

Later the present will was prepared, we are told, by Mr. Davey. because Doctor Freeman was afraid ihat his sisters might say that because they had not been mentioned in the other will, that he had forgotten them. This second will was executed on July 1.3th, 1933, at Mr. Davey’s house in Belle-ville, N. J., in the presence of Mr. Louis Mohring, the father of the chief beneficiary, Mrs. Davey, the wife of the scrivener of the will, and Mr. Davey as subscribing witness, and present in attendance upon its execution were Mr. and Mrs. Harry Mohring and their children and Lettie Patterson. Doctor Freeman arrived at Mr. Davey’s house in company with the persons above named, except Mr. and Mrs. Davey, early in the evening of July the 13th. Mr. Davey had been away fishing and they were compelled to wait for some little time on Mr. Davey’s veranda until he was ready to proceed with the execution of the will. Yet none of the witnesses can testify to any incident nor happening in that long wait in which Doctor Freeman engaged either in conversation or any activity that would lend to support their testimony that he was competent, sane and knew what he was doing, except the single incident of his having dropped cigar ashes on the floor, and having suggested that the ash tray should be painted a different color than the porch screen.

The subscribing witnesses to the execution of the will all testify that Doctor Freeman was sober and appeared to be of sound mind and thoroughly competent to make a will. In this they are supported by Harry Mohring and by his wife, but contradicted by Lettie Patterson. They all testify that all of the legal requirements for the valid execution of a will were complied with, and Mr. Davey testifies that the will was read to Doctor Freeman paragraph by paragraph, and, after one or two minor changes, signed by him in the presence of all three witnesses. The will consists of three typewritten pages, fastened together with blue silk ribbon. The last page contains merely the testimonium clause, the attestation clause, the signatures of the testator and of the subscribing witnesses. No part of the body of the will appears on thi last page. In physical make up, the will provides, first, for the payment of debts, then for a legacy of $10,000 to Harry Mohr mg, then the request of one dollar to Mrs. Freeman, $1,000 to Lettie Patterson, $200 each to his four sisters, the appointment of the residuary legatees as his executor, and then the residuary clause in which all his estate is given to Ilarry Mohring, the same individual mentioned in the first legacy of $10,000. The physical make np of the will is in these particulars unusual, and seems not to be based upon any logical reason.

After the death of Doctor Freeman, caveats against the probate of his will were filed'by his widow and by Sallie'B. Freeman, one of his sisters, attacking the probate of the will upon the ground that it was the result of undue influence; that at the time that it was made Doctor Freeman did not possess testamentary capacity and that the will was the result of fraud. I am unable to find in the testimony any support for the accusation of fraud. There is no direct testimony from which fraud’ could be determined, and the argument of counsel that the manner in which the will is fastened together, and the fact that no part of the body of the will appears upon the same page with the signature of the testator, has not convinced me that there was present fraud. I am further supported in this view by the demeanor of Mr. Davey, upon whose shoulders chiefly would fall any accusation of fraud. Upon the witness-stand he appeared to be frank, sincere and truthful in his statement as to the manner in which the will was executed, and I feel that the allegation of fraud must fail.

It has been argued at length and with vehemence by the counsel lor the proponents that the court cannot set aside the will in question without having found that Mr. Davev was guilty of fraudulent practice, that he was a forger and a perjurer. This argument does not impress the court at all. Mr Davev may very well have been deceived into believing Doctor 'Freeman possessed a much greater -mental capacity than he had. He may very readily have been mistaken, and honestly mistaken, as to Doctor Freeman’s mental capacity. In fact, I am inclined to believe that he was over credulous, and that he did not use the care that a more prudent and less credulous individual would have done in the preparation and execution of the will in question. If he had attempted to perpertrate a fraud upon the court, I do not believe he would have left open so many doors for the entry of Suspicion.

Thus we have before us the pictures of this man, feeble physically, almost Mind, advanced in years and possibly aged beyond his actual years by his excessive alcoholic indulgence, separated from his friends and acquaintances of earlier years, estranged from his wife, and refusing to associate with his own sisters, surrounded by strangers in the home of a lawyer, a strangc-r to him, to all of his earlier associates, and only a casual acquaintance of two or three weeks, gathered together for the purpose of executing a solemn document. There was present no disinterested person, and the court does not have the benefit of a single disinterested witness to what transpired at the time of the execution of this will. No person disinterested in the result of this case can testify as to its execution. None of the subscribing witnesses attempt, with1 the exception of Mr. Davey, to recite any facts showing that they liad attempted in any manner to find out whether or not Doctor Freeman possessed testamentary capacity. He was surrounded at the time of the execution of the will by those who would benefit by its terms, or by the friends of those who would so benefit. He had no opportunity to secure the benefit of independent advice.

Where confidential relations exist between a testator and the principal beneficiary, “slight additional evidence” will place on the beneficiary the burden of showing that testator’s mind was not unduly influenced. In re Morrise’s Will, 91 N. J. Eq. 480; Sparks Case, 68 N. J. Eq. 242; Dale v. Dale, 88 N. J. Eq. 274.

Doctor Freeman made Mohring his chief companion and called him “son”; he was constantly in his company; they rode miles together and frequented roadhouses and places of entertainment together. Harry Mohring was the confidant of Doctor Freeman in business and personal affairs, and he and his wife entertained Doctor Freeman at cards and generally they lived a family life together. Tt was through Louis Mohring that Mr. Davey was introduced to Doctor Freeman. From that time to the execution of the will the same faces appear constantly on the screen, and there was abundant opportunity to exploit, and, coupled with the circumstances surrounding the execution of the will, show the confidential relations, together with slight additional evidence, sufficient to shift the burden of proof to the proponent to show that the will was not the result of undue influence.

The proponent has stoutly protested that he exerted no influence whatever over the testator in the making of his will, and that while he knew the will was being executed he did not know he was a beneficiary undér it, and that he had never discussed with the testator the provisions of his will.

T feel that his testimony must be believed and that he has satisfactorily sustained the burden of proof that was cast upon him, and that the will was not the result of undue influence exercised over the testator by the proponent.

It has been repeatedly held that the burden of neutralizing the presumption of undue influence may be set by the testimony of those implicated, where the weight of that testimony is, as it appears in this case, impeachable and convincing. In re Morrise’s Will, 91 N. J. Eq. 480; and causes therein cited.

I am satisfied that neither the charge of fraud or of undue influence has been sustained.

Tlie third reason urged by the caveatrixes, lack of testamentary capacity, remains to be considered. It has already been mentioned that Doctor Freeman was a constant periodic drinker during the major portion of his life. As already mentioned, his condition at times became so bad because of the effect of his indulgence in alcohol that it became necessary for his own protection and the protection of others that he be confined in institutions for the care of those mentally afflicted. He was pronounced insane by two physicians in 1931, at the time of his commitment to the state hospital for the insane. He was found by the physicians in charge at the state hospital to be insane. His physical condition indicated the ravage that alcohol had made in his system.

After having been in the hospital at Trenton for about six weeks he was released by order of the court of chancery on habeas corpus proceedings. The file of the proceedings in the court of chancery releasing him have been offered as exhibits in this case, because it is claimed by the proponents that the order of the court of chancery directing his discharge from the state hospital declares him to be sane. It appears in the recitals preceding the order that the following language has been used, “and it appearing to the chancellor that the said Charles M. Freeman is sane,” &e. Their follows the order directing the discharge.

The vice-chancellor in his conclusions says: “There' appears to be no condition of the kind known as insanity, at least under the terms of the Asylum act, and if there is no contest on the part of Mrs. Freeman nor the state, nor any further testimony to be offered, then I see nothing to be done under the statute than to direct the discharge of the patient.” I take it therefore that the determination of the vice-chancellor was merely that the deceased should be discharged from custody, and this conclusion was arrived at by him after only hearing, in an uncontested case, one side. But aside from that, it is my understanding that while the findings of lunacy or insanity in a collateral matter are competent evidence, they are not final upon the question of a mental capacity to make a will. The whole effect of the findings of the court of chancery was merely that Doctor Freeman need not be longer confined, and no finding was made as to his mental capacity to transact Imsiness or make a will.

The qaveatries called as expert witnesses, to show the mental capacity of Doctor Freeman, Dr. Henry M. Cotton. medical director of the state hospital for the insane at Trenton, Dr. William E. Ramsay, a physician practicing in Middlesex county, with a number of years’ experience specializing in mental diseases, and Dr.. Alfred L. Ellis, of Metuchen, a general practitioner. All of these men had known Doctor Freeman in his lifetime, and at one time or another examined him to ascertain his mental condition. Doctor Ramsay had known him for many years and had at one time been intimate with him socially. Doctor Ellis had lived for many years in the same community as Doctor Freeman. Doctor Cotton had had opportunity to observe Doctor Freeman upon his two periods of confinement in the state hospital at Trenton. Each of these physicians therefore was able, to testify, not only in-answer to the hypothetical question propounded, but from their personal observation of Doctor Freeman.

Doctor Cotton testified that upon his first admission to the asylum ho was very nervous, confused and restless. His 'eyesight very bad. His reflexes were veiy sluggish. The pupils were very stiff. He suffered some from hardening of the arteries. He had an enlarged liver. Very shaky. Mentally he was restless, confused, had been smoking to excess, and used alcoholic drinks to excess for a number of years and had delirium tremens. Had lost interest in his work and home affairs. He had hallucinations cf sight and hearing. He had some delusions that were not fixed however. His memory was very defective. He had been a dipsomaniac all his life: He was considerably deteriorated mentally. Piad no plans for the future. He showed little,’if any, improvement, and escaped from the hospital at the end of twenty-six days. And that at the time he was in the hospital he had paranoid ideas, with marked lack of judgment, showing a dementia, a mental deterioration, designated by Doctor Cotton as alcoholic deterioration.

That upon his second admission in October, 1921, his condition was much the same, and he had been drinking to-' excess and taking a large amount of veronal, and seemed to be more deteriorated than at the time of his first admission, showing a progressive disease. His blood pressure was very high. He was almost blind. He had very marked delusions about his wife, claiming that she was intimate with the chauffeur, but did not suffér at that time from hallucination. That there was a very marked progression of his mental symptoms, with marked paranoid ideas against his wife, and the doctor comparing his condition upon his second admission with that o£ his first admission, considered that he had gone from bad to worse mentally. And in answer to a hypothetical question he testified unequivocally, that in his judgment Doctor Freeman lacked testamentary capacity on July 12th, 1922. He further testified that Doctor Freeman’s condition was much worse in 1921 than in 1920. That at that time he had all the symptoms of a chronic alcoholic deterioration. He testified further that he had delusions of infidelity upon the part of his wife. Doctor Cotton definitelv stated from his experiences with other cases that Doctor Freeman’s condition was one of chronic alcoholic deterioration with lack of judgment, with periods of hallucinations, with delusions, and taken in connection with his use of drugs -and alcohol would make him a great deal worse.

He also testified on cross-examination, in answer to direct questions, that the written memorandum which has been heretofore mentioned, indicated to him that it was the result of an insane mind. And that the will itself showed on its face lack of testamentary capacity.

Doctor Ellis testified that he had known Doctor Freeman nineteen years. Had been one of his physicians. That he had known him socially. Testified that he was not mentally able to make a will on July 12th, 1922.

Dr. William W. Eamsay testified that he had known Doctor Freeman many years. I think from 1889 or 1890. That is some thirty years. They had been quite intimate in their early manhood. That the witness had not seen much of Doctor Freeman in the last ten or fifteen years because Doctor Freeman’s change of character was so marked that their relations were not as agreeable or cordial as in early life. This change in Doctor Freeman towards Doctor Ramsay and other friends was attributed by the witness to his excessive use of alcohol. Doctor Ramsay was one of the doctors who committed him to the state hospital in 1921. At that time he was rather depressed, his responses were slow, he was indifferent to his condition, his surroundings, ins eyesight was very poor, he had quite a distinct tremor, and lacked proper conception of his surroundings or of his condition. He testified that he could not say that there was an acute intoxication at that time. That there was a chronic condition from which he was suffering at that time and that this condition ivas an advanced stage of chronic alcoholism. He testified further that with the excessive use of alcohol a marked change in the structure of the brain takes place. The first action of alcohol is a functional disturbance. The continued use of it produces a structural disturbance. This structural disturbance is, to a very limited degree, repairable. That Doctor Freeman had reached this stage of structural disturbance and that chronic alcoholism, the disease from which he was suffering, is a chronic condition that does not improve. And that the stopping of the use of alcohol would improve the condition of the patient suffering from chronic alcoholism only in so far as it would improve the functional disturbance, but the structural condition would not change.

Thus we have the testimony of three physicians, who were personally acquainted with Doctor Freeman, that he was mentally incapable of making a will at the time this will was made.

Against this the proponents called Doctor Funkhousor. the assistant medical director at the state hospital, and Doctor Rostow, who had for a time been connected with the medical staff of that institution. Doctor Funkhouser substantially agrees with Doctor Cotton, Doctor Ramsay and Doctor Ellis that when alcoholism has reached the chronic stage that there is no recovery from it, and testified that he is unable to state whether or not Doctor Freeman’s condition was that of a chronic alcoholic.

Having in mind that he was called by the proponents and interpreting his testimony in the most favorable light to them, it cannot be said that he contradicts materially the testimony of Doctor Cotton, Doctor Ramsay and Doctor Ellis.

Doctor Rostow’s testimony is that of an ordinary physician having had a limited experience with mental diseases, and while it tends to contradict that of the other physicians, is not in my opinion sufficiently credible to canse me to disregard their testimony.

It seems to me also that the very physical construction of the will itself and its provisions indicate that the will was the result of a disordered mind. It contains a legacy of $10,000 to Harry Mohring and then disposes of $1,800 in other legacies, and makes provision concerning the payment of taxes on the estate, &c., and then gives all the rest, residue and remainder to Harry Mohring, to whom the $10,000 legacy had earlier been given. It has been argued that this is a perfectly natural disposition, because he wanted to be sure that Mohring received the largest portion of his estate. If this argument correctly states the reason why Doctor Freeman made the provisions in his will, then it certainly indicates that he did not know the estate that he had to dispose of, because it is agreed that it exceeds $100,000. and this argument itself therefore demonstrates that he did not possess, at the time the will was made, one of the elements required — that is, a knowledge and comprehension of the estate that he had to dispose of.

The will and the written memorandum prepared for an earlier will, but which the will offered closely follows, support the opinion of the physicians that he lacked testamentary capacity.

Counsel for the proponents, as well as counsel for the caveatries., have cited many cases bearing upon the question of the effect of intoxication upon the execution of a will. The present case does not fall in that class of cases, but rather in those cases mentioned in the exception to the rule laid down by Chief-Justice Denio in Peck v. Cary, 27 N. Y. 9, 23, which rules has been adopted in this state in a number of cases. Banister v. Jackson, 45 N. J. Eq. 702; affirmed, 46 N. J. Eq. 593, and many others in this state. The rule laid down is as follows: “It is not the law that a dissipated man cannot make a contract or execute a will, nor that one who is in the habit of excessive indulgence in strong drink must be wholly free from its influence when performing such acts. If fixed mental disease has supervened upon intemperate habits, the man is incompetent and irresponsible for his acts. If he is so excited by present intoxication as not to be master of himself, his legal acts are void, though he may be responsible for his crimes.

In this case it appears to me that it has been abundantly proven by the witnesses that fixed mental disease has supervened upon the intemperate habits of Doctor Freeman.

Having reached this conclusion, it is necessary to determine whether or not the mental impairment resulting from this fixed disease of the brain was sufficient to render him incable from making the will.

The test of testamentary capacity in this state is whether the testator can comprehend the property he is about to dispose of, the objects of his bounty, the meaning of the business in which he is engaged, the relation of each of these factors to the others, the distribution that is made by the will, and be able to deal rationally with those elements. The medical testimony shows conclusively that Doctor Freeman’s mind was diseased. The effect of that disease was to cause him to suffer from delusions of persecution, and that his wife had been unfaithful to him, and he had in his mind towards her a fixed feeling of resentment because she had him committed to the state hospital, although any sane man would have known that her act in that regard was only for his own good. He had turned against others who had served him many years, notably Mr. Breen, and had taken up and spent the last year of his life with comparative strangers. He became uuwarrantedly suspicious of a man who worked for him for twenty years and against whom he had never felt suspicion while in his normal mental condition.

There is no doubt that he knew the nature of the business that he was engaged in when he made the will. I do not believe that he comprehended the value of his estate at the time his will was made. The will itself would indicate that he did not, and the fact that he had left over $100,000 to a man who had been in his service only about six months, and who had been adequately compensated for the services he had rendered, indicates to me that the will was an unnatural one, the act of a disordered mind, made in' ignorance of the value of the estate thus bestowed upon a comparative stranger or as the result of an insane caprice. Nothing in the services rendered by Mohring to Doctor Freeman over the very short space of time that he had known him would warrant the bestowal upon him of the gift of over $100,000 as a reward for services rendered. ■ And I can find nothing in the relations of these parties that would warrant the conclusion that such a disposition was a natural one. I am unable to find anything in the testimony justifying Doctor Freeman in disregarding the natural claims of his wife and sisters. After applying the test above mentioned, while I am convinced that Doctor Freeman knew the general objects of his bounty, the business that he was engeged in at the time the will was made, and the distribution that that will made, I am unable to find that he did know the value of the estate that he had to dispose of. And I am of the opinion that he did not have the mental capacity to deal rationally with each of those elements. His delusions of persecution, his unwarranted resentment of his wife’s act in having him committed to the state hospital for the insane, his bitterness towards his sisters, were all the results of a disordered and diseased mind directly affecting the disposition of his estate.

In conclusion, I find that this will was made by Doctor Freeman, not as the'result of undue influence exercised upon him, but was made by him at a time when he lacked the necessary mental capacity to make a valid and effectual will, and in view of this finding a decree will be made denying the will probate.


source: Caselaw Access Project

author: Katzenbach, J.

license: Public Domain

text:
    KRUCK PIANO COMPANY, A CORPORATION, PLAINTIFF, v. JULIE BANZHOFF, DEFENDANT.
    Argued October 8, 1923
    Decided December 4, 1923.
    Corporations' — Capital—Payment of Subscriptions — Formal Assessment by Directors Necessary in Solvent Corporations Before Cause of Action Accrues.
    On motion to strike out complaint.
    For the motion, Grover C. Richman.

      Contra, C. Richard Allen.

   The opinion of the court was delivered hy

Katzenbach, J.

The complaint in the above case states that on July 3d and July 6th, 1922, Julie Banzhoff subscribed for and purchased of the Kruck Piano Company twenty-five thousand and one shares of its capital stock and agieed to pay therefor one dollar per share; that the said stock was on July 3d and July 6th, 1922, delivered to the defendant; that the defendant has .paid on account of said stock the sum of $17,310, leaving a balance due of $7,631. Tire complaint does not state that the directors made an assessment or call upon the stock held by the defendant for the amount sued for. It was admitted in the agreement that no call had been made. The defendant moves to strike out the complaint because it sets forth no cause of action, a call by the board of directors being necessary before any action can be taken against a stockholder.

The procedure for the payment into the treasury of a corporation, of the amount due on the capital stock of the corporation subscribed for is set forth in sections 21 and 22 of the Corporation act. 2 Comp. Stat., p. 1610. These sections provide as follows:

“21. Liability of stockholders on- non-paid-up stock.— Where the whole capital of a corporation shall not have been, paid in, and the capital paid shall be insufficient to satisfy its debts and obligations, each stockholder shall be bound to pay on each share held by him the sum necessary to complete the amount of such share, as fixed by the charter of the corporation, or such proportion of that sum as shall be required to satisfy such debts and obligations.”
“22. Assessments on stock; notice. — The directors of every corporation may, from time to time, make assessments upon the shares of stock subscribed for, not exceeding, in the whole, the par value thereof; and the sums so assessed shall be paid to the treasurer at such times and by such installments as the directors shall direct, said directors having given thirty days’ notice of the assessment and of the time and place of payment either personally or by mail or by publication in a newspaper published in the county where the corporation is established.”

The situation in the present case as disclosed by the complaint, is the usual contract of a subscribed for capital stock of a corporation. Counsel for the plaintiff contends that the defendant by accepting the stock agreed to pay the whole of the price thereof immediately and that an action for the agreed price or unpaid balance of the subscription may be instituted without any action by the board of directors under the sections of the Corporation act above quoted. If this were the'law actions such as in the present case would often lead to great injustice by those in control of the corporation. A single stockholder might be sued for the entire amount due upon his subscription and other stockholders exempted from action, so that one or a few of those subscribing for the capital stock might be made to furnish all of the capital embarked in the enterprise. The policy of the law is to make all stockholders pay an equal amount per share into the treasury of the company. This result has uniformly been obtained through the plan of calls by action of the board of directors for payment of percentages on the capital stock subscribed and notice to the stockholders of the amount to be paid and the time fixed for payment.

The following authorities in this state support this method of procedure: Grosse Isle Hotel Co. v. L’Anson’s Executors, 42 N. J. L. 10; Bradclock v. Railroad Co., 45 Id. 363; Storage Co. v. Assessors, 56 Id. 389; McDermott v. Woodhouse, 87 N. J. Eq. 615. Mr. Justice Depue, in Storage Co. v. Assessors, supra, stated the law tersely in these words: “A subscription to stock imports a promise by the subscriber to par7 the face value of the shares of stock subscribed for, in compliance with assessments lawfully made, for the recovery of which the corporation may maintain a suit at law.”

Counsel for the plaintiff contends that these cases have been overruled by the case of Robson v. Fenniman Co. 83 N. J. L. 453, where Chief Justice Gummere, speaking for the Court of Errors and Appeals, said: “It is contended that the plaintiff’s obligation to pay his subscription did not arise until demand had been made upon him by the company to do so, and that the proofs in the case do not disclose that any such action was taken by the defendant. We cannot concede that the plaintiff’s obligation to pay his subscription did not become binding until demand for such payment was made upon him. McCarter, Receiver, v. Ketcham, 74 N. J. L. 825, would seem to be an authority to the contrary. But, assuming the contention to be well founded, we consider the claim made by the defendant by way of set-off a sufficient demand to establish the plaintiff’s liability.”

This language was applicable only to the special features of the case under consideration in which the question involved was one of salary due an officer and not payment on capital stock subscribed for, and is not, in my opinion, a repudiation of the principle that the amount of a stock subscription cannot be recovered from stockholders until after a regular and lawful assessment has been made by the board of directors.

If a corporation had purchased its own shares of stock, which had been fully paid, and then resold them under a contract which required full payment upon delivery of the shares, a suit could be maintained for the full purchase price. But the complaint in this case alleges no such facts.

The complaint will be stricken out.


author: Per Curiam.

text:
    STEPHEN A. D. JONES, PLAINTIFF-APPELLEE, v. ROGER HARPER, HARRY C. HARPER AND WALTER HARPER, DOING BUSINESS AS HARPER BROTHERS, DEFENDANTS-APPELLANTS.
    Decided December 21, 1923.
    Negligence — Motor Vehicle Accident — Driving on Wrong Side of Road Does Not Per Se Constitute Actionable Negligence, But a Circumstance to Be Considered With Other Circumstances. Unless it Appears to Have Some Casual Relation to the Accident it Cannot Be Made Basis of Presumption of Negligence.
    On appeal from the First Judicial District Court of Bergen Count}'.
    Before Justices Kalisch and Katzenbach.
    For the appellant, William H. D. Cox (William B. Harley, of counsel).
    For the appellee, Benjamin B. Bufett (Edward A. Kenny, of counsel).
   Per Curiam.

According to the complaint filed in the action brought by the complainant in the court below against the defendant co-partnership the plaintiff and his wife were, on the 7th day of August, 1922, the owners of an automobile, which, on the day in question, while being operated and run by tlie plaintiff’s wife along Grand avenue, a public street in Englewood, came into collision with defendant’s motor truck, operated by one of their servants, whereby the plaintiff’s wife was injured and the automobile damaged. The case was tried before the court, sitting with a jury, who found a verdict for the plaintiff against the defendants for $362.04, and on which •verdict a judgment was entered, from which judgment the defendants have appealed to this court.

Prom the testimony it appears that the plaintiffs auto was proceeding north on Grand avenue, to the right of the middle of the road, at a speed of fifteen to twenty miles per hour. Mrs. Jones, the plaintiff’s wife, testified that as she approached Linden avenue (which crosses Grand avenue in such a way as to form an acute angle with the same) she observed a truck on the left side. She then proceeds to say: “I didn’t notice it particularly until.I got almost to Linden avenue, and I noticed it just going along slowly on the left-hand side, going in the same direction that I was going, and, of course, I didn’t pay any particular attention to it because it was unloading dirt and I noticed the piles of dirt there, and I supposed it was going to stay there; but all of a sudden it turned and started across in front of me, going up Linden avenue. * * * I was about two car lengths behind it when he cut across me. I wasn’t exactly two car lengths, but I know I 'was very close to it, and I put on my brakes as hard as I could, and at the same time I turned my wheel in order to try to go with it, and on one side of me, on the right-hand side, was a big telegraph pole, and if I had turned any further I would have gone into that, crashed into it. So 1 crasned into him with my left front wheel.”

At the close of the plaintiff’s case counsel of defendant moved for a nonsuit, on several grounds, and now relies in his brief on two of them only: 1, that the evidence showed contributory negligence; 2, that no negligence was shown on the part of the defendants, Harper Brothers, by their servant or agent.

The motion for a nonsuit was properly denied. The driver of the automobile being on the right side of the road, and, according to her testimony, was operating her automobile at a reasonable rate of speed, she was not under any legal duty to anticipate that the driver of the truck would suddenly cut across from the left side.of the road into the path of the oncoming automobile, at a time when it was within two cai' lengths or less from the place where the truck turned and was hit; so that, despite her efforts, she was not able to stop the automobile in time to avoid the collision. This was the posture of the case when the plaintiff rested, and it is quite manifest that it presented questions of fact which necessitated its submission to a jury for determination, under proper legal direction.

At the close of the entire case counsel of defendants moved for a direction of a verdict for defendants; which motion was properly denied.

The defense was that the defendants’ driver, before attempting to turn, put his hand out to indicate to those behind that he was about to make a turn, and at the same time he blew a whistle as a further warning, and, because the plaintiff’s wife was operating her car at an excessive rate of speed, she was unable to stop the car in time to avoid a collision.

Of course, the jury was not bound to accept the defendants' diiver’s version of how the accident occurred in preference to the version given by the plaintiff’s wife. The only effect of the driver’s testimony was to raise a question of credibility of witnesses, which was pre-eminently for the jury to determine.

The trial judge, in obedience to a request submitted by counsel of plaintiff, charged the jury as follows: “I will charge you further that if the defendants’ truck was moving on the wrong side of the street at the time or just prior to the collision then there is a presumption of negligence.”

This is unsound as a legal proposition and was harmful error.

The mere fact that one is driving on the wrong side of a road does not per se constitute actionable negligence. It is a circumstance to be considered with the other circumstances of the case and unless it appears to have had some casual relation to the accident — that is, that it was one of the producing causes — it cannot be made the basis of a presumption of negligence.

Judgment is reversed and a venire de novo is awarded.


author: Oliphant, S. C. C.

text:
    HOWARD M. SWAVELY, PLAINTIFF, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, DEFENDANT.
    Decided December 8, 1931.
    Before Oliphant, Circuit judge, sitting as Supreme Court commissioner.
    Por the plaintiff, George Pellettieri.

    Por the defendant, Katzeribach, Gildea & Rudner.

   Oliphant, S. C. C.

The plaintiff sues to recover the amount of two policies of life insurance issued by the defendant upon the joint lives of the plaintiff and his wife, Elizabeth Swavely. The policies total $5,000 and are identical in terms, the amount of the insurance being payable to the survivor as beneficiary.

The defendant in its answer sets up two separate defenses, one that the plaintiff cannot recover upon the policies in question because he willfully, deliberately and premeditatedly murdered his wife, Elizabeth Swavely, on or about November 7th, 1930, and the other, that the plaintiff was convicted of murder in the first degree in the Court of Oyer and Terminer of the county of Hudson and that his conviction makes his guilt of the murder of his wife res judicata. Upon the argument of this motion the defendant conceded that the second defense is untenable and withdrew it.

The plaintiff moves to strike out the defendant’s answer as frivolous, thus questioning the legal sufficiency of the defendant’s plea that the plaintiff willfully, deliberately and premeditatedly murdered his wife, and cannot, therefore, recover upon the policies which form the basis of the suit.

There appears to be no reported case in this state dealing with the question now raised, by the plaintiff. The case of Sorbello v. Mangino, 155 Atl. Rep. 6, cited by the plaintiff, does not support his position. In that case a bill was filed in the Court of Chancery to restrain the defendant “from asserting sole ownership to” certain land “and from conveying the same.” The defendant had owned the land as tenant by the. entirety with his wife and had been convicted of murdering her. Vice-Chancellor Fielder, who heard the case, held that the evidence offered was not sufficient to show the murder, unless the record of the conviction of the defendant could be used for that purpose. After discussing the statutes and authorities in this and other states, he decided that the record of conviction was not admissible as proof of the murder, and, therefore, that it was not proved that Mangino had murdered his wife. Thereafter the learned vice-chancellor discussed the authorities in other states dealing with the question of whether or not a murderer can take property as an heir or next of kin or tenant by the entirety of the person he had murdered, but reached no conclusion, and suggested that the legislature ought to set' this matter at rest once and for all.

While there is a difference of opinion among the courts of other states as to whether or not a murderer can inherit from his victim under statutes containing no exceptions, there is no such difference of opinion as to the effect of the murder of an insured person by the beneficiary named in an insurance policy. In fact, although the plaintiff’s counsel has shown great diligence, he has been unable to find a single case in which a beneficiary has been permitted to recover upon a life insurance policy when he has murdered the insured. Decisions to the contrary are innumerable. Many of them cite with approval the language of the United States Supreme Court in Mutual Life Insurance Company of New York v. Julia Armstrong, Admx., 29 L. Ed. 997; 117 U. S. 591, where it was said:

“It would be a reproach to the jurisprudence of the country, if one could recover insurance money payable on the death of the party whose life he had feloniously taken.”

In the case of Schmidt v. Northern Life Association, 83 N, W. Rep. 800, the Supreme Court of Iowa said:

“Indeed the unbroken voice of authority is to the effect that a beneficiary in an insurance policy who murders the insured forfeits his rights thereunder. * * * Any other rule would furnish the strongest temptation to crime and give to the party interested the most potent incentive to bring about the death of the insured, that he might profit thereby. The public has an interest in such matters over and beyond the individuals or societies involved, and courts are not bound to enforce or hold valid any contract which offends public morals, violates the law or contravenes public policy. Had the certificate contained a provision to the effect that benefits would be paid in the event the beneficiary took the life of the insured, it would clearly be opposed to public policy, and would not be enforced. If recovery were permitted by the beneficiary or her asisgnee in this action, it would be giving the same effect to the certificate as if such a clause was included in the contract.”

The Court of Appeals of Illinois, in Schreiner v. High Court of I. C. O. of F., 35 Ill. App. 576, said:

“It is wholly unnecessary to find in the policy or the certificate an exception in terms against the intentional killing of the insured by the beneficiary. Such an exception is introduced into the contract by the law, which, by civil power and coercion, seeks to enforce the divine command, Thou shaft not kill/ Ho court will lend aid to one who founds his cause of action on his intentional wrong.”

The following cases, among many others, lay down the same rule: Spicer v. New York Life Insurance Co., 268 Fed. Rep. 500; Robinson v. Metropolitan Life Insurance Co., 69 Pa. Supr. 274; Welch v. Travelers Insurance Co., 178 N. Y. Supp. 748; Goldstein v. New York Life Insurance Co., 231 N. Y. Supp. 161; Kascoutas v. Federal Life Insurance Co., 189 Iowa 889; 179 N. W. Rep. 133; Anderson v. Life Insurance Company of Virginia, 152 N. C. 1; 67 S. E. 53; Wickline v. Phoenix Life Insurance Co., 145 S. E. Rep. 743; Johnston v. Metropolitan Life Insurance Co., 85 W. Va. 70; 100 S. E. Rep. 865; Filmore v. Metropolitan Life, Insurance Co., 82 Ohio St. 208; 92 N. E. Rep. 26; Slocum v. Metropolitan Life Insurance Co., 245 Mass. 565; 139 N. E. Rep. 816; Metropolitan Life Insurance Co. v. Shane, 98 Ark. 132; 135 S. W. Rep. 836.

The leading text writers on insurance unanimously agree with the principle enunciated in these cases. 6 Cooley’s Briefs on Insurance (2d ed.) 5227; Richards on Insurance Law (2>d ed.) 81; Kerr on Insurance (1902) 685; 2 Couch’s Fncyclopedia of Insurance 1018; 2 Joyce on the Law of Insurance 1826; 2 Bacon on Life and Accident Insurance (4th ed.) 990.

I heartily agree with the views expressed in the cases and texts cited above. Nothing could be clearer than that to permit a murderer to collect insurance upon the life of the person he has murdered would be contrary to public policy. The underlying principle is obvious. It is the policy of the law to protect human life, and to that and to discourage rather than encourage, the unlawful taking of it.

The motion to strike out the defendant’s answer is denied.


author: Pee Cukiam.

text:
    ELIZABETH MULLER, PLAINTIFF-RESPONDENT, v. ABRAHAM BASKOWITZ ET AL., DEFENDANTS-APPELLANTS. GOCHEN MULLER, BY NEXT FRIEND, ET AL., PLAINTIFFS-APPELLEES, v. ABRAHAM BASKOWITZ ET AL., DEFENDANTS APPELLANTS.
    Submitted October term, 1931
    Decided December 10, 1931.

      Before Justices Campbell, Lloyd and Bodine.
    For the appellants, Edward A. Markley.

    For the appellees, Louis P. Brenner.

   Pee Cukiam.

The judgments in this case are the result of an action for damages for personal injuries to a child and the resulting expenses of the mother, caused by the falling of a child, four years of age, into a cellarway. The action was against the owner of the property.

The facts were that an employe of a tenant, in carrying certain goods and merchandise from the cellar of the building, caused the iron coverings of the cellarway to be laid flat on the sidewalk and the four-year-old child walked into the opening and was injured.

The charge of negligence as to the defendant-owners was, “said defendants carelessly and negligently permitted and allowed said opening to be open and unsafe for the public walking along the said streets, &e.”

Appellants urge that the judgments should be reversed—■ (1) because trial court refused to nonsuit or direct a verdict in favor of defendants because there was no evidence of negligence on their part which was the proximate cause of the injury; (2) because the trial court erred in instructing the jury—

“Then the court charges you, under the decisions rendered in this state, that the owners of premises of this kind, which have openings on the sidewalk appurtenant to the premises, are responsible by reason of the facts that they are in control of those premises and in control of those open spaces or cellarways, or entrances into cellars that have some connection with the premises under consideration. And—

The court desires to instruct you that a highway or a sidewalk on a highway is supposed to be safe to anybody with a right to use them. You have a right to determine from the evidence whether or not the child, in exercising its right on the sidewalk, had the right to presume that everything was safe so that he could walk across the doorway if he so desired.”

We conclude that undoubtedly there must be a reversal of these judgments.

It most conclusively appears that the happening was not caused by any structural defect in the cellarway or that it was the result of the neglect of the defendants because of any control over the way.

Under such circumstances the defendants below were entitled to either a nonsuit or a direction of verdict in their favor.

Likewise there was error in the first instruction complained of and while the second instruction is properly a general exposition of the law it had no application to the present case because of the facts.

No citation of authorities is necessary; the principles involved are entirely too fundamental.

The judgments under review are reversed, with costs.


author: Lawkence, S. C. C.

text:
    MYRTLE C. VAN KEUREN, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF EDWARD D. VAN KEUREN, DECEASED, PLAINTIFF, v. ERIE RAILROAD COMPANY, A CORPORATION; BENJAMIN J. BLAKNEY AND THEODORE ROMAINE, DEFENDANTS.
    Decided December 8, 1931.
    Before Lawrence, Circuit Court judge.

      Por the rule, Hobart & Minará {Ralph E. Cooper).

    Contra, Alexander Eimpson.

   Lawkence, S. C. C.

Defendants argue for a new trial on several grounds, chiefly that the verdict was contrary to the weight of the evidence, of decedent’s contributory negligence, and that the sum awarded is excessive. Certain exceptions taken during the trial to the court’s rulings, to the qualified admission of a written statement of the fireman on the engine, made shortly after the accident, and to the charge of the court were also discussed on the argument and in the brief.

The factual situation as disclosed by the evidence may be generally stated to have been that Mr. Yan Keuren had gone to the station, in accordance with his custom, to take a late afternoon train for his home. He had a commutation ticket and his relation to the company as a passenger at the station with the right to transportation was admitted. The tracks and station are elevated above the adjacent street. To reach them, the passenger mounts a stairway to the south platform where the ticket office and waiting rooms are located, immediately in front of which runs an eastbound track. Opposite is a westbound track and a platform for passengers getting on and off trains going in that direction. To get to the north platform, it is necessary to cross these tracks, a plank walk being provided and maintained by the company for that purpose.

At the time of the accident, Mr. Van Keuren, who had been standing on the south platform, was seen to start across the tracks on this walk and had reached the north rail of the westbound track when he was struck in the back by the end of the brake beam on the right side of the engine of the approaching train and thrown on to the north platform against a concrete post, the impact breaking it. The engineer testified that he was on the right side of the engine and did not see Mr. Van Keuren until he was struck; that the train was going twenty-five miles an hour, and that if necessary it could have been stopped within eighty feet, but that he did not apply the brakes until at the place where the accident happened, which was his custom, because he had no knowledge that anyone was attempting to cross the track. He had given, he said, the usual crossing signal about three hundred yards away and the engine bell was ringing.

The fireman, who was on the left side of the engine, and who could not apparently be produced as a witness at the trial, had made a written statement shortly after the accident which was put in evidence. The substance of it was that the train was going twenty-five to thirty miles an hour, and when the engine was about one hundred and fifty feet away, he saw a man start across the eastbound track, “using the wooden platform which crosses the tracks at that point;” that the man was walking and “in his opinion” had plenty of time to get over; the first that he knew that “he had not made it” was when the engineer put on the emergency application of air and the train came to a stop. He (the fireman) had said nothing to the engineer “about the man crossing over, it being common practice for the people to run over from one side to another in front of train and engines,” reiterating that “in my opinion the man had plenty of time to cross.” He further stated that the usual crossing signal had been given and that the engine bell was ringing. This written statement was allowed to go to the jury, with the cautionary statement of the court, in effect, that a mere expression of opinion was not evidential of a fact to be proven, but that if the statement as a whole, in other respects, was found to be a narrative of what the fireman had seen, such weight and credence should be given it as the jury felt it deserved and as though he had been produced and examined as a witness at the trial. Other witnesses on the north platform or in the vicinity testified as to features of the accident observed by them, not materially differing from the statement of the occurrence given above.

A review of the evidence leads to the conclusion that the negligence charged in the operation of the train at the time was clearly a jury question, likewise the alleged contributory negligence of Mr. Yan Keuren. It is said that the rule of duty at a public crossing has no application to a case where, by the arrangement of the company, it is made necessary for passengers to cross a track in order to reach the station or the cars. Pertinent authority on the points here raised will be found in Bradley v. Erie Railroad Co., 106 N. J. L. 51, and the cases cited, including Jewett v. Klein, 27 N. J. Eq. 550. In the circumstances, it cannot be said that the jury erred in its verdict, either on the issue of negligence or contributory negligence. In any event, it is not so clearly against the weight of the evidence as to justify disturbing it.

It is next urged that the amount awarded is excessive. This appears to be so. Mr. Yan Keuren at the time of his death was sixty-seven years of age, with a life expectancy of ten years. He earned $3,600 a year, two-thirds of which went to the home and one-third to him. Calculating the financial advantage which would have accrued to the widow and next of kin, on this basis, had he not been killed, the maximum possible verdict would approximate the sum of $15,000. If, therefore, plaintiff consents to a reduction to this amount, the rule to show cause will be discharged, otherwise it will be made absolute.

In conclusion, it is to be observed that there was no evidence in the case justifying the inclusion of Theodore Komaine as a party defendant. He appears to have been the conductor of the train involved and was in nowise connected with the accident. This was conceded on the argument of the rule and the verdict should be set aside as to him.


text:
    THE BETZ MARKET, PLAINTIFF-RESPONDENT, v. GEORGE H. HILLMAN, Jr., DEFENDANT-APPELLANT.
    Submitted October term, 1931
    Decided December 10, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Jacob Vm Der Clock and Samuel Bosenfeld.

    For the appellee, Blmer Friedbauer.

   Per Curiam.

The action was to recover for provisions. The account was opened by the wife of the defendant below in 1928 and was continued until May 6th, 1930, when the defendant notified the plaintiff not to extend any further credit on his account. The goods were delivered from time to time to defendant’s home and payments were made, on account, until on May 6th, 1930, there remained an unpaid balance of $177.18.

The judge of the District Court, sitting without a jury, found in favor of the plaintiff below and from the resulting judgment the defendant below appeals.

Three grounds for reversal are urged.

1. That the court erred in permitting the offer in evidence of delivery slips.

From the state of case settled by the trial judge it appears—

“Plaintiff then testified that these delivery slips were his only records and the original records and that he kept no books, whereupon the court received, the slips in evidence sH * H5 >!< w

Under such circumstances we think they were properly admitted.

2. Error in refusal to nonsuit.

This motion was made upon the ground that there was no proof that the provisions were “necessaries.”

We are unable to understand how there can be any doubt that provisions used for food are not within the class of “necessaries” which the husband as the head of the family is legally required to provide and pay for.

3. The judgment is contrary to the weight of the evidence. This is not a proper ground of appeal.

The judgment will be affirmed, with costs.


text:
    DORSEY HAYES, PLAINTIFF-RESPONDENT, v. BROGAN CADILLAC-LaSALLE COMPANY, DEFENDANT-APPEL-LANT.
    Submitted October term, 1931
    Decided December 10, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Alex M. MacLeod.

    For the appellee, Feder & Binzler.

   Per Curiam.

The action was for personal injuries and damage to wearing apparel resulting from a collision of automobiles on July 28th, 1930, at the intersection of Lexington avenue and Harrison street in Passaic. The cause was tried without a jury and resulted in a judgment in favor of the plaintiff below for $378. This was the second trial of the issue. At the first trial there was a judgment of $200 for the plaintiff. This was set aside and a new trial ordered, with the result above stated.

Prom the second judgment the defendant appeals filing sixteen specifications of determinations with which it is dissatisfied; twelve of these are directed at alleged erroneous rulings upon evidence and are argued under points one to six in appellant’s brief. These, we conclude, raise no question of prejudicial or harmful error.

Specification thirteen is directed at error in refusing to nonsuit and is not argued, and is therefore abandoned. ifum7 ber fourteen is directed to error in refusing to direct a verdict in favor of appellant. This is not argued. In fact the record before us does not show that any such motion was made. Number fifteen alleges error in giving judgment for plaintiff and number sixteen error in not giving judgment for defendant.

The point raised under these specifications is that there was no evidence showing that the driver of the Cadillac car was the agent or servant of the appellant.

The facts relied upon by the plaintiff below were that the defendant-appellant was the owner of the Cadillac car which it had taken in trade from Dr. Henna. The driver of this car, at the time of the collision, Walters, a nephew of Dr. Henna, was shown inclined to purchase the car from the defendant, and sought through its president, Brogan, the privilege of using the car over a week-end “on approval,” or for the purpose of satisfjdng himself whether or not he desired to purchase it. This request was denied b3r Brogan, but later, through the efforts of Dr. Henna, one McCord, also an officer of the defendant company, the privilege was granted and the car delivered late on the Saturday afternoon before the happening, at the residence of Dr. Kenna, and from there taken, by someone, at the instance of Dr. Kenna and delivered later, on the same day, to Walters in Jersey City, who took the car and drove it to the shore. On the return from the shore, on the following Monday, July 28th, Walters, driving the car, the happening in question took place.

It further appears that the day following the happening, July 29th, Walters completed with defendant-appellant the arrangements for purchasing the car, giving his check dated July 28th, for the first payment and all papers relating to the transaction were ante-dated to the Saturday prior to the happening and the time when he took possession of the car. Walters also paid a bill of $77 to defendant-appellant for repairs to the car made necessary because of damage to it as a result of the collision. When the car was delivered by appellant to Dr. Kenna, and during the time it was operated by Walters, it had attached dealer’s registration plates of the defendant-appellant.

We are unable from such proofs to find anything to charge appellant with the operation of the vehicle or to make the operation by Walters imputable to the appellant.

While the presumption of law was that Brogan CadillacLaSalle Company, as owner of the car, was in possession and operating it, the evidence conclusively shows that this presumption was overcome by the uncontradicted proofs to the contrary.

Doyon v. Auto Co., 98 N. J. L. 540, relied upon by respondent is not in point or applicable, nor is Gavin v. Cohn, 5 N. J. Mis. R. 296.

There being no proof to support the judgment under review, it is reversed, with costs.


text:
    LEWIS RICHMOND, PLAINTIFF-RESPONDENT, v. CONSERVATIVE CREDIT SYSTEM OF NEW JERSEY, DEFENDANT-APPELLANT. BARNEY RICHMOND, PLAINTIFF-APPELLEE, v. CONSERVATIVE CREDIT SYSTEM OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted October term, 1931
    Decided December 10, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the appellant, Jacob 8. QUchemhaus and Hugo Woerner.

    For the appellees—no briefs.
   Per Curiam.

These were actions by makers of notes to the appellant, a. small loan company, for the purpose of recovering the amounts paid thereon because such notes were void as containing requirements, demands and exactions in violation of the statutes regulating such companies. Pamph. L. 1914, p. 75, as amended Pamph. L. 1928, p. 497.

Each note did contain the following:

“And on default in the payment of the whole or any part of this note, of any renewal of same, we the undersigned, jointly and severally further agree to pay interest at the rate of three per cent, per month from and after the date of such default; and upon the entry of judgment for the whole or any part of this note or any renewal of same, we, the undersigned, jointly and severally, further agree to pay all reasonable costs, including attorneys’ fees that may be incurred in collecting the whole or any part of this note * * * said attorneys’ fees to be fixed at $15 plus one per cent, of the amount of such judgment; provided such note * * * shall not be construed to charge us * * * or obligate us * * * to pay any interest, charges, bonus, fees, expense or demands of any nature whatsoever in excess of that now allowed by chapter 49 of the laws of New Jersey, 1914, or any amendment thereof known as the Uniform Small Loan law.”

The trial court, sitting without a jury, found in favor of the plaintiff in each action, and from the judgments entered upon such findings the defendant below appeals.

It is urged for reversal—■

1. That defendant did not violate the statute either in the notes or statements.

It is insisted that all that is required is substantial compliance with the act and that this is conclusively established by the proofs—

In support of such contention Sartor v. Englewood Finance Co., 9 N. J. Mis. R. 675, is cited.

But this has no application to the situation presented by the case before us. We are controlled by Consolidated Plan of New New Jersey v. Shanholtz, 7 N. J. Mis. R. 876, and Morris Plan Corporation v. Schwartz, 8 N. J. Mis. R. 417.

2. That violations of the act must be willful.

This is without merit. Consolidated Plan of New Jersey v. Shanholtz, supra.

3. That sections 5 and 6 of the statute are not reasonable regulations under the police power of the state.

This we find to be without legal substance.

It is further urged that the statute violates the state constitution in that—

1. Its object is not expressed in the title.

2. It is special.

We find nothing in the arguments advanced under these points calling for our comment.

The statute is not, for these reasons, unconstitutional.

4. The statute violates the constitution of the United States because it results in a deprivation of property without due process of law and it impairs the obligation of contracts. We do not find this to be so.

The judgments under review are affirmed, with costs.


text:
    TOWNSHIP OF PENSAUKEN, PROSECUTOR, v. STATE BOARD OF TAXES AND ASSESSMENT ET AL., DE-FENDANTS.
    Submitted October 16, 1931
    Decided December 10, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    For the prosecutor, Albert E. Scheflen.

    For the defendants, Howard L. Miller.

   Per Curiam.

This writ brings before us for review the judgment of the state board of taxes and assessment, of January 27th, 1931, reducing the assessment for taxing purposes for the year 1930 of the property of Wm. Cramp & Sons Ship and Engine Building Company, located at Petty’s Island, Pensauken township, county of Camden, from a total of $63,400 as fixed by the county board of taxation, being $62,400 upon land and $1,000 on improvements, to a total of $50,000 being $49,000 on land and $1,000 on improvements.

The township assessor had made a total assessment of $90,200; $83,200 on land and $7,000 on improvements. From this the owner appealed to the county board of taxation, receiving the reduction before referred to and from this judgment of the county board both the owner and the township of Pensauken appeaLed to the state board.

Three reasons are advanced and argued by the prosecutor why the judgment under review should be set aside—•

1. The findings of the defendant, state board of taxes and assessment, upon which judgment has been entered, reducing the assessment of the defendant taxpayer, are not supported by the weight of the evidence.

2. The unsupported testimony of H. B. McCollum, a witness for the defendant taxpayer, does not justify the reduction made by said board in the valuation placed on said land for the year 1930.

3. The findings and judgment of said board are against the clear weight of the evidence produced before it.

Thus the question presented is, solely—is the finding of the board supported by the weight of the proofs before it?

Our consideration of the proofs brings us to the conclusion that by a clear preponderance thereof the findings of the board were justified.

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


text:
    JAMES A. McGIMPSEY, PLAINTIFF-APPELLANT, v. SECURITY BUILDING AND LOAN ASSOCIATION, DEFENDANT-RESPONDENT.
    Submitted October 16, 1931
    Decided December 10, 1931.

      Before Justices Campbell, Lloyd and Bodine.
    Bor the appellant, Vincent S. Haneman.

    Bor the appellee, Herbert B. Voorhees.

   Per Curiam.

The plaintiff, owner of real estate, borrowed from the appellee the sum of $10,000 and gave it his bond secured by a mortgage upon his lands. As further security for such loan, the bond and mortgage required the mortgagor to insure his life in the sum of $10,000 and assign the policy to the mortgagee, and part of the monthly payments included the premium upon such policy. Such a policy was issued by the John Hancock Mutual Life Insurance Company and this policy was duly assigned to the defendant-appellee.

Hpon default under the mortgage the defendant below foreclosed and purchased the property under such sale September 5th, 1929, for $100. The decree was for $10,504.34, leaving a deficiency of $10,404.34.

The property was sold by appellee April 1st, 1930, for $11,500. At that time the total amount due appellee was $11,899.44. Deducting from this the selling price of $11,500 left a deficiency of $399.44. After the foreclosure sale and on November 16th, 1929, the appellee applied for and obtained from the insurance company the cash surrender value of the life insurance policy before referred to amounting to $425.

Thereupon appellant brought suit to recover from appellee this amount of $425 and the court below found in favor of the defendant below and rendered judgment accordingly. Brom this judgment the plaintiff below appeals and appears to urge in support of a reversal that appellee was not entitled to the cash surrender value of $425 unless—

1. It brought suit and recovered a judgment for deficiency.

2. Because it elected to take the property as security for its debt.

But we think neither of these grounds is tenable. The policy of insurance by reason of the form of its assignment, was collateral security of similar tenor and effect to that usually taken as security for a negotiable instrument. The mortgagee was entitled, therefore, to the proceeds thereof upon giving credit, upon the debt secured, for the amount secured therefrom.

Generally speaking the judgment of the court below was correct and well founded in law. However, the total loss to the defendant-appellee, from the agreed state of facts, seems to have been $399.44, exclusive of this sum of $425.

In strictness, therefore, the appellant was entitled to the difference between this amount of $399.44 and $425 or $25.56.

Inasmuch as the whole record of the case is before us, therefore, under the statute and rulings of this court the judgment below will be reversed and judgment will he entered in favor of the plaintiff below and against the defendant for $25.50, but without interest and without costs.


author: Eldkedge, C. 0. J.

text:
    ALBERT J. NESBITT, PLAINTIFF, v. THE BOARD OF MANAGERS OF THE NEW JERSEY AGRICULTURAL EXPERIMENT STATION, DEFENDANT.
    Decided December 10, 1931.
    For the plaintiff, Norman Harker.

    For the defendant, Robert Peacoclc, assistant attorney-general.
   Eldkedge, C. 0. J.

The plaintiff in this case brought suit against the defendant the board of managers of the blew Jersey agricultural experiment station, alleging that on October 5th, 1926, the defendant, by its servants, agents and employes operated an automobile in a negligent manner and caused injury to the plaintiff, for which injury he seeks tn recover.

The act of 1880 (Pamph. L. 1880, p. 137), creating the board of managers of the New Jersey agricultural experiment station provides that the said station shall be established for the benefit of practical and scientific agriculture and the development of unimproved lands. The direction of the institution was committed to the board of directors consisting of the governor, the board of visitors of the state agricultural college and the president and professor of agriculture of that institution. The board of directors had authority to appoint a director to have general management, and oversight of the experiments and investigations necessary to carry out the objects of the institution and also to employ competent chemists and other assistants to analyze soils, fertilizer and objects of agricultural interest. By a later act of the legislature, the board of directors were designated as a. board of managers. By an amendment passed in 1887 (Pamph. L. 1887, p. 24) the legislature of the State of Eew Jersey accepted and assented to appropriations and grants of money as made and provided for in an act of the Congress of the United States, approved March 3d, 1887, entitled, “An act to establish agricultural experiment stations in connection with the colleges established in the several states under the provisions of an act approved July 2d, 1862, and of the-acts supplementary thereto,” and by a further act passed in 1920, and amended in 1923, the board of managers is empowered to provide for instruction in poultry raising and to-that end to conduct poultry exhibitions and to charge admission thereto and to pay the expense thereof. This act provides that any excess of income over expenses for any particular show shall be held and used to defray the expenses of subsequent poultry exhibitions. Neither the original act nor the amendments thereof anywhere provide that the board of managers have the right to sue or be sued.

A motion is now made by the defendant to dismiss the complaint upon the ground that a suit cannot be maintained against the State of New Jersey, that the defendant is a state agency and hence a suit against it would be a suit against the state.

In the judgment of the court, this motion must prevail. That the state of New Jersey cannot be sued without its consent has been long established in this state.

In the case of Lodor v. Baker, Arnold & Co., 39 N. J. L. 49, the court, speaking through Mr. Justice Van Syckle, said: “With regard to the state courts, it requires no constitutional provisions to shield the state from suits by its own citizens, or by the citizens of another state. It enjoys this immunity as one of the essential attributes of sovereignty, it being an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts without its consent.”

See, also, American Dock, &c., Co. v. Trustees of Public Schools, 32 N. J. Eq. 428.

Both these cases were cited with approval as late as 1920, by Vice-Chancellor Buchanan, in Curtis & Hill & Co. v. State Highway Commission, 91 N. J. Eq. 421. After stating that an interpretation which would make a statute operative to affect a state is not to be given unless the legislature’s purpose to do so is clearly indicated, the vice-chancellor adds, “it is, I take it, essentially the same rule or principle which prevents the state from being sued by its citizens.”

If then a suit instituted against the board of managers of the New Jersey agricultural experiment station be in substance a suit against the State of New Jersey, the action will not lie. That this suit is, in substance, against the State of New Jersey, appears to the court to be beyond question.

The decision of Mr. Justice Parker, in Robert L. Stephens, Administrator, &c., v. The Commissioners of the Palisades Interstate Park, 93 N. J. L. 500, would seem to this court to control the present controversy. The board in the present suit, as was the park commission in that suit, is a state agency charged with a public duty. The governor of the state is a member of the board of managers. The expenses incurred in conducting and managing the station are paid upon warrant of the comptroller, out of state funds. The legislature makes annual appropriations for that purpose. An amendment to the act of 1880, passed in 1904 {Pamph. L. 1904, p. 47), provides, inter alia> that the station “be authorized each year to incur expenses not exceeding fifteen hundred dollars for printing the bulletins issued from the said station, containing analysis of fertilizers, fodders, seeds and soils, the results of investigations in feeding animals, in testing the adaptability of soils and manures, for the various cereal, fruit and vegetable crops and such other results and investigations as may be deemed by the board of managers to be of immediate usefulness to the citizens of the state.”

The only power granted the board, which could in the slightest be interpreted as the exercise of anything bút a public function, is contained in the amendment of 1923; granting the board the power to conduct poultry exhibitions and charge admissions thereto. Such exhibtions, however, are not for profit and any excess of income over the expenses in any one year is held for the purpose of defraying the expenses of subsequent exhibitions. These exhibitions, like the other activities of the board, are public functions not for profit but intended, to be “of usefulness to the citizens of the state.” In addition to all this, any judgment obtained in this matter would have to be paid out of the treasury of the State of New Jersey and hence a suit against the state. Nor the above reasons,' the motion to strike the complaint will be granted.


author: Eldredge, C. C. J.

text:
    DEVELOPMENT BUILDING AND LOAN ASSOCIATION, OF CAMDEN, NEW JERSEY, PLAINTIFF, v. HARRY NU-ROCK AND EDITH NUROCK, HIS WIFE, DEFENDANTS. DEVELOPMENT BUILDING AND LOAN ASSOCIATION, OF CAMDEN, NEW JERSEY, PLAINTIFF, v. HARRY NU-ROCK AND HARRY LUTZ, DEFENDANTS.
    Decided December 11, 1931.
    For the plaintiff, Aaron Heine.

    For the defendants, Jacob L. Furer.

   Eldredge, C. C. J.

The points involved in the two above entitled cases are identical and will be disposed of together.

The plaintiff was the holder of two certain mortgages covering the property of the defendant Harry Nurock and others and instituted proceedings to foreclose the same. The foreclosures had proceeded to a point where the sheriff had made a sale of the properties to the plaintiff for fifty dollars each but no confirmation of the sales by the Court of Chancery had been obtained. Three days after the sales by the sheriff and before confirmation, the plaintiff took judgment in this court for the amounts of the deficiencies on the two bonds. The Court of Chancery has, up to the present time, refused to confirm the sale of the properties to the plaintiff and has ordered or will order a resale upon certain terms imposed upon the defendants.

Counsel for the defendants made application to the Supreme Court for a rule to show cause why the judgments in both cases should not be vacated and declared null and void. The rule was granted and, upon argument, orders dated November 2d, 1931, were made in the Supreme Court, opening the judgments, staying all proceedings and permitting the defendants to file answers to the plaintiff’s causes of action, within twenty days. The answers were filed within the time allowed in the orders and set up the sole defense that the judgment on the bonds having been taken before a confirmation of the sheriff’s sales in the mortgage foreclosures, were a fraud upon the defendants, were taken without legal right, and that no cause of action existed at the time they were taken.

Counsel for the plaintiff now moves to strike out the answers. The motion raises but a single question, namely, whether a judgment for deficiency, after a sheriff’s sale in foreclosure may be entered before a confirmation of the sale is made by the court. The answer to this question depends upon an interpretation to be given the statute concerning foreclosures and deficiency judgments. The procedure for the entry of a deficiency judgment is found in the act of 1880 as amended in 1881. 3 Comp. Siai., 48, p. 3421, j[ 50, p. 3422. These two sections of the statute provide as follows:

“48. Procedure on bond where debt is not satisfied by foreclosure; limitations. Section 2. That in all cases where a bond and mortgage'has or may hereafter be given for the same debt, all proceedings to collect said debt shall be, first, to foreclose the mortgage and if at the sale of the mortgaged premises under said foreclosure proceedings the said premises should not sell for a sum sufficient to satisfy said debt, interest and costs, then and in such case it shall be lawful to proceed on the bond for the deficiency, and that all suits on said bond shall be commenced within six months from the date of the sale of the said mortgaged premises, and judgment shall be rendered and execution issue only for the balance of debt and costs of suit.”

“50. Eeport and confirmation of sale. Section 4. That in all foreclosure proceedings hereafter commenced, the sheriff or other officer who may be directed to sell any mortgaged premises shall, after making such sale, report the same within five days thereafter to the court out of which an execution or order to sell is issued, stating the name of the purchaser or purchasers and the price obtained, and if the said court, or a judge thereof, shall approve of. such sale, they shall confirm the same as valid, effectual in law, and shall by rule of court allowed in open court, or by a judge thereof at chambers, direct the said sheriff or other officer to execute good and sufficient conveyance in law to the purchaser or purchasers for the mortgaged premises so sold; provided that no sale of mortgaged premises shall be confirmed by the court or further proceedings had until the court, or such judge, is satisfied by evidence that the property has been sold at the highest and best price the same would then bring in cash, and such evidence may be in the form of affidavits.”

In interpreting the sections of the statute above quoted, the court must keep in mind that they are in derogation of the common law and are therefore to be strictly construed. Callan v. Bodine, 81 N. J. L. 240.

Prior to the passage of the act of 1880, the plaintiff had two remedies. He might enforce his lien by foreclosure or bring suit on his bond. The act of 1880 above mentioned altered the plaintiff’s rights and in referring to that fact Mr. Justice Depue, in Baldwin v. Flagg, 43 N. J. L. 495, said:

“Its purpose and intent were obviously to confer upon the obligor named, in a bond secured also by a mortgage, a substantial advantage he did not have before the act was passed. Upon such an obligation, the obligee, prior to this act, had two remedies, the fruits of which were entirely different. He might enforce the lien of the mortgage upon the mortgaged premises by a suit for a foreclosure and also sue on the bond, and recover a judgment in personam, enforceable by an execution and levy on all the property of the obligor, real and personal. This suit he might bring as soon as the bond, became due and payable.”

This advantage accruing to the obligor, under the act of 1880, was likewise a disadvantage to the obligee and deprived him of a right he had prior to its passage.

Bearing in mind then that the statute is to be strictly construed, an examination of its terms and provisions may be made. The plaintiff’s rights with respect to the entry of a deficiency judgment are set out in section 48. He must first foreclose his mortgage and if at the sale of the mortgaged premises sufficient is not realized to satisfy the debt, then he may proceed on the bond, for the deficiency. Such suits on the bond, however, must be commenced within six months from the date of the sale.

It is to be noted that section 48 nowhere makes any reference to a confirmation of the sale. All suits on bonds for deficiency shall be commenced within six months from the date of the sale. That the sale referred to in the decree which terminates the right of redemption as well as in the act authorizing the decree of sale is the exposure of the property for sale by the sheriff, has already been decided in Union Building & Loan Association v. Childray, 127 Atl. Rep. 253, in which Vice-Chancellor Learning held that such sale meant, “the public exposure of the property for sale and the procurement of a purchaser by that means. Hot only is that 'public sale’ of the property a sale in the common acceptation of that term but at that time the equitable title to the property passes to the purchaser * * * thus the highest bidder as a purchaser at a sheriff’s sale facquires by the act of purchase a right to a conveyance * * * the order of confirmation confirms and has relation back to that sale.”

Apart from this interpretation of the statute respecting the meaning of the word “sale,” our courts have placed a similar interpretation upon it respecting the time limit for the entry of a deficiency judgment. It has been held that such a judgment must be entered within six months from the date of the actual sale by the sheriff, no allowance being made for the necessary lapse of time before the confirmation can take place, under the rules of the court. Taylor v. Van Nimwegen, 86 N. J. L. 80, and Carter v. Smith, 42 N. J. Eq. 348.

The courts having interpreted the statute in the manner above indicated, it is difficult to see why a different interpretation should be given respecting the entry of a deficiency judgment. Had our courts held that the sale referred to in the statute was not a sale until confirmed and that a deficiency judgment might be entered within six months after the date of the confirmation, the situation would have been different. If the contention of counsel for the defendants be correct, then it follows that the act of 1880 is in derogation of the common law rights of the plaintiff even to the extent of depriving him of any right whatever to recover for a deficiency under his bond. It is not by any means beyond the realm of probability that confirmation of a sale, through appeal or for other reason might be delayed beyond the six months period. If such were the case, under the authorities above cited, the plaintiff would be without remedy. It is the opinion of the court that no such intention Was in the mind of the legislature when the act of 1880 was passed.

The court has examined the authorities cited in the brief filed by counsel for the defendants and while their general statements support his contention, those statements are based upon decisions of courts interpreting statutes which differ from that of our own state. His statement taken from Ruling Case Law cites Parmlee v. Schroeder, 61 Neb. 553. The statute interpreted in that case provided that upon the report of sale the court should have power to decree a deficiency and direct payment of any balance due. The statute itself made the report of sale a condition precedent to the •decree directing j udgment for a deficiency. So, also, with the authority cited in Pomeroy’s Equity Jurisprudence and in Jones on Mortgages, statutes differing from our own are being interpreted by the courts of other states in which the procedure also differs from that of New Jersey.

The motion to strike the answers will be granted and an •order made accordingly.


text:
    STANDARD ACCIDENT INSURANCE COMPANY OF DETROIT, MICHIGAN, A CORPORATION OF THE STATE OF MICHIGAN, PROSECUTOR, v. FRANCIS V. D. LLOYD, JUDGE OF THE FIFTH JUDICIAL DISTRICT COURT OF THE COUNTY OF BERGEN; PETER A. GRANDE, CLERK OF THE FIFTH JUDICIAL DISTRICT COURT OF THE COUNTY OF BERGEN; HEDLEY DA COSTA, CHARLES SCHMIDT, ATTORNEY FOR HEDLEY DA COSTA; JAMES W. MERCER, COUNTY CLERK OF BERGEN COUNTY AND CLERK OF THE BERGEN COUNTY CIRCUIT COURT; FRED MEITSEL, AS AN INDIVIDUAL; THE EDGEMONT CONSTRUCTION COMPANY, A NEW JERSEY CORPORATION, AND KNAPP DEVELOPMENT COMPANY, A NEW JERSEY CORPORATION, AND FRED L. BLOODGOOD, CLERK OF THE NEW JERSEY SUPREME COURT, DEFENDANTS.
    Submitted May 15, 1931
    Decided December 10, 1931.
    Before Justices Tren chard, Daly and Donges.
    For the prosecutor, Louis Auerbacher, Jr.

    For the defendant Hedley da Costa, Charles Schmidt (Warren Dixon, Jr., of counsel).
   Per Curiam.

On August 28th, 1929, Hedley da Costa filed a lien claim against property in the township of Teaneck in the office of’ the clerk of Bergen county. Summons was issued out of the Fifth Judicial District Court of Bergen county on the-lien claim against Fred Meitsel and Edgemont Construction Company, builders, and Knapp Development Company, Incorporated, owner, on September 3d, 1929, and the certificate of the issuance thereof was filed in the Bergen county clerk’s office September 5th, 1929. Service of the summons was made on the defendants September 5th, 1929. None of the defendants filed an answer or took any other steps in the cause except that on December 20th, 1929, the above mentioned defendants with the prosecutor of this writ as surety, filed a bond in the office of the clerk of Bergen county for the purpose of releasing the premises against which the lien was filed, from the operation thereof. On January 31st, 1930, a rule for judgment was entered against Meitsel, Edgemont Construction Company and Knapp Development Company, being entered specially against the land described in the complaint. At this time neither the plaintiff nor his attorney had any actual notice of the fact that the bond had been filed.

On May 11th, 1930, the rule for judgment as entered was amended to include Standard Accident Insurance Company as a judgment defendant by reason of the bond filed by it as surety. This rule for judgment failed to state that the lands would be specially liable had the bond not been filed. On September 29th, 1930, an amended rule for judgment correcting the omission, which was contained in the original rule, was entered.

The power of the District Court to enter this judgment and make these amendments is the only point in controversy on this certiorari, as far as the prosecutor of this writ is concerned.

We think, as argued by the defendant in certiorari, that the District Court had jurisdiction of the subject-matter, and of the parties, therefore any alleged error by the District Court can be reviewed only by appeal.

The amount in controversy was $350. The land and building against which the lien claim was filed were located in Bergen county. Jurisdiction under a mechanics’ lien suit, where the amount in controversy does not exceed $500 is vested in any District Court of the county in which the land and building are situated. Mechanics’ Lien act, section 23;. 3 Comp. Stat.j p. 3307. The court therefore had jurisdiction of the subject-matter.

The prosecutor contends that the court did not have jurisdiction over it personally because no summons was served upon it, and because it was not made a party- to the original summons and complaint. This contention cannot prevail. Jurisdiction over the prosecutor as a defendant in the cause, was acquired by force of the Mechanics’ Lien act as amended. Pamph. L. 1917, ch. 68, p. 121; 1 Cum. Supp. Comp. Stat., p. 1853. This act provides that upon the filing of a bond for the purpose of releasing the land from the operation of the lien, the principal and surety thereon shall, upon such filing become parties in any action commenced, or to be-commenced, upon the lien claim. The bond in the present, case was filed in the Bergen county clerk’s office December 20th, 1929, and by reason thereof the prosecutor became a party defendant to the cause. The District Court, therefore, had jurisdiction both of the subject-matter and of the parties, and any alleged error committed by it could be reviewed only by appeal and not by certiorari.

The question of the right to a writ of certiorari directed, to the District Court, is covered by section 89 of the District Court act, which provides that “where the court has jurisdiction, no judgment in any District Court from which [as here] an appeal is given by this act, shall be removed by certiorari, for the correction of any supposed error thereon; * * * »

This provision of the act was considered in the case of Genuario v. Gaudenzio, 64 N. J. L. 157, wherein the court, said (at p. 158) : “The right of the prosecutors to review this judgment by certiorari depends upon whether the court below had jurisdiction of the subject-matter of the litigation and of the parties to it, for, if such jurisdiction existed, then the only method of review was by an appeal,” &c.

In this connection it is noted that the prosecutor contends that the District Court was deprived of the power to enter the final judgment as amended, by the Mechanics’ Lien act as amended by Pamph. L. 1910, p. 226, which provides that; any final judgment recovered in the District Court in a suit on a mechanic's lien, shall be docketed in the Circuit Court upon compliance with the conditions therein set forth. To this contention it is a sufficient answer to say that the judgment in question was not docketed in the Circuit Court. The attempt was to docket it in the Court of Common Pleas and that attempt was nugatory.

The writ of certiorari will be dismissed, with costs.