text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    MIKE PARDUR, PETITIONER, v. NEW JERSEY WORSTED MILLS, RESPONDENT.
    Injury to Knee — Not Considered Serious — Temporary Disability at First Awarded’ — Conditions Indicating a Permanent Disability, Second Hearing Was Had1 — Claim of Fifty Per Cent. Permanent Disability Not Sustained — Case Dismissed.
    On determination and finding of facts and rule for judgment.
   í¡í }¡s í|í * :¡í - :J«

Having heard and considered the testimony adduced by the parties, I do hereby find and determine as follows:

1. That on or about February 8th, 1924, the petitioner was employed by the respondent as a comber, at its plant in Garfield, New Jersey, at a weekly, wage of $23.05, and that at the time and place above mentioned, while engaged in the duties of his employment, the said petitioner slipped, striking' his right knee against a machine; that he did not report the said accident to the said emploj’er until February 11th, 1924, and continued to work at his emplo3rment until April 17th, 1924; that thereafter he was treated for his injury by the said respondent’s physician and returned to work on June 18th, 1924, and continued to work at the said respondent’s plant for some time thereafter; that on or about February 18th, 1925, an informal hearing was held before the Honorable William D. McMichael, at Paterson, New Jersejr, at which both parties presented their testimony, whereupon it was adjudged that the said respondent had furnished to the said petitioner medical and surgical treatment as and when needed, and it was further adjudged that the said petitioner’s injury had entailed a temporary disability extending from April 17th, 1924, to February 18th, 1925, excluding therefrom sucli periods as the said petitioner had actually worked, leaving as the period of temporary disability thirty-seven and three-seventh weeks at $15.37 per week, and that the said injury had also entailed a permanent disability of ten per cent, of the usefulness of his leg, or seventeen and one-half weeks at $15.37 per week.

2. That pursuant to the said determination, the said respondent has paid to the said petitioner all of the compensation so awarded him as aforesaid on account of the temporary and the permanent disability entailed by the said injury.

3. That the present formal petition was filed before the period allotted for the payment of the temporary disability had expired, but the respondent agreed that this proceeding should be in the nature of a review of the award made upon said informal hearing.

•1. That at the formal hearing heard before me as aforesaid, two physicians testified for the said petitioner, neither of whom had examined the said petitioner until the very morning of the said hearing, although it appeared that the said petitioner had been treated and examined by other physicians; one of the physicians so produced by the said petitioner testified that his opinion regarding the extent of the permanent disability entailed bjr the said injury was based solely upon subjective symptoms; that the petitioner was suffering from a chronic synovitis, and that if the said knee were aspirated the trouble would clear up. Both of the said physicians agreed that the said petitioner’s leg was otherwise in perfect condition, hut their opinion was that be had sustained a permanent disability of fifty per cent, of the said leg; the physician called by the said respondent had examined the said petitioner on many occasions since the date of his accident, had conferred with the physician who actually attended and operated upon him, and had examined the X-rays taken of the injured member; he testified that the petitioner now had a bursitis; that the said petitioner had theretofore been submitted to the very treatment suggested by one of tlie physicians who testified on his behalf; that the said petitioner’s condition had, if anything, improved since the date of the informal hearing above mentioned, and that- the permanent- disability in no event exceeded ten per cent, of the loss of the usefulness of the said right leg.

5. That from the petitioner’s own testimony it appears that he drives an automobile, and that he can stand for- a period of two hours on the injured leg before having to shift his weight.

6. That the disability, both temporary and permanent, entailed by the said accident does net exceed the periods allowed the said petitioner upon the informal hearing held as aforesaid, which award has been paid in full to the said petitioner by the said respondent.

It is thereupon, on this 6th day of July, 1925, ordered that the said formal petition be and the same is hereby dismissed.

Harry J. Goas, Deputy Commissioner.


source: Caselaw Access Project

author: Harry J. Goas, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    HARRY SILVERMAN, BY SARAH SILVERMAN, HIS NEXT FRIEND, PETITIONER, v. HARRY WARMAN, RESPONDENT.
    Injury to Foot — Question of. Employment — Complainant’s! and His Witnesses’ Testimony Contradictory and Unreliable- — Evidence That Complainant Was Not in Respondent’s Employ, But Was Helping Out an Employe of Respondent, Accepted.
   On determination and rule for .judgment.

This matter-coming on to be heard on petition, answer and proofs taken thereunder on June 23d, 1925, July 15th and August 4th, petitioner being represented by Samuel Green-stone, Esquire, and respondent by Charles W. Weeks, Esquire, and the court having heard the testimony and the argument of respective counsel finds and determines—

1. Petitioner alleges that while he was in the employ of the respondent the 1st day of November, 1923, he met with' an accident while driving a horse and wagon, as a result of which he was thrown from the wagon and his foot crushed. In support of this allegation he testifies that he worked at the request of the respondent for a period of three weeks before the happening of this accident, carting potatoes continuously during that time from one or two railroad yards to the place of business of the respondent. The testimony of the petitioner'is inconsistent with the other witnesses he produced to show the employment, in that they all testified they saw him load the wagon with produce at the place of business of the respondent and drive off from there with the loaded wagon. The demeanor of the petitioner and his other witnesses while on the stand, taken together with the several irreconcilable discrepancies in their stories, persuade me to believe that they were not telling the truth and that the petitioner was not employed by the respondent, as he said. In fact, T think that some of the testimony produced by the petitioner amounts to a deliberate misstatement of the facts., I am confirmed in the belief that petitioner and his witnesses are not telling the truth by the testimony of Mr, Todd, who was called on petitioner’s behalf, but do not feel that any useful purpose will be served by repeating the substance of Mr. Todd’s testimony in this determination.

2. The testimony produced on the petitioner’s case is denied almost iri foltt by the respondent and the witness George Hill, who worked for the respondent at the time of the happening of the accident. I believe the testimony of Hill as to the way and manner in which the boy came to be driving the wagon on the day in question is the truth, both from his demeanor on the stand, the inherent probability of his story, and from the fact that he has no interest in this ease whatsoever, as he is.no longer employed by the respondent. He was the stableman, and had charge of all the teams which the respondent owned, and he emphatically denies that the boy was employed in carting potatoes for three weeks before this accident, as testified to by the petitioner, and denies that on the day in question he was so engaged. Hill says that he was instructed to cart some potatoes, on the day in question, from the Lackawanna yard, at Orange street, to the petitioner’s place of business at Barclay street, in Newark; that he had been so1 engaged, for the greater part of the day, and about four o’clock he had two loads left at the yard; that he was anxious to get away earty that evening, and asked the boy if he would consent to follow him to the yard, driving a separate horse and wagon. This the boy consented to do, and while on the return trip the boy failed to follow Hill, and while taking a different route, met with an accident.

3. Prom all of the testimony, particularly that of Hill, which I believe to be true, I am constrained to the conclusion that the boy was not employed bj? the respondent, but was driving the wagon at the request of Hill for Hill’s personal convenience, and that there was no relationship of employer and employe existing between the petitioner and respondent at the time of the happening of this accident.

It is therefore on this 10th day off August, 1925, ordered and adjudged that the petition filed in the foregoing cause be and the same is hereby dismissed.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    MARIA COCO, PETITIONER, v. HANNAH WILBUR (MRS. WILLIAM L. WILBUR), RESPONDENT.
    Death From Accidental Shooting of Cranberry Picker — Was There An Accident — Was Accident in Course of Employment — What Compensation Should be Paid?
    SUMMARY OP PACTS.
    Mrs. Wilbur, the respondent, operates a cranberry bog.
    Joe Albín arranged with Mis. Wilbur to secure twenty-two pickers and bare them at the bog for work by Monday, September 8th, 1921. Tie engaged these pickers in Philadelphia and directed them to proceed with him on Saturday, the 6th, to the place where the ¡licking was to lie done.
    Mrs. Wilbur was to pay sixty cents per bushel, of which sum Air. Albín ivas to receive ten cents per bushel for securing the men and overseeing the picking and accounting.
    'The testimony shows that between three and fonr p. sl on Saturday, September 6th, Mr. Coco was shot, and died shortly after. When the decedent was first seen, immediately following the occurrence, he was in front of the toilet-house, and the attorney for the petitioner endeavored to establish that he was in the toilet when struck. One witness testified that about twenty minués prior to this occurrence he saw the watchman firing at the toilet. Apparently, he was using it as a target. Another witness states he saw the watchman attempting to leave the promises and stopped him. A third witness testified lie heard four or five shots over in the woods, possibly three-fourths of a mile away. This woods is in a gunning section.
    The pickers slept in quarters or shanties on the premises, and petitioner's attorney contends it was a necessary element of the relations between the employer and the pickers for them to be on the ground before the actual work of picking began, in order for them to prepare their living .quarters, and that the men were in the course of their employment from the time they left Philadelphia, or at least from the time they arrived on the premises.
    The respondent’s attorney insists that since these pickers were paid by piece work at a stated figure per bushel, and Mr. Coco was killed before he had picked a berry, he could not have been in the course of his employment, and that if he was, there is absolutely no way of fixing a compensation rate.
   OPINION.

Pour principal questions are involved in this case, namely:

(a) Was there an accident, and if so,

(b) Did it occur in the course of employment, and

(c) Did it arise out of the employment,.and if so,

(d) What compensation rate can be fixed?

With respect to (á), the New Jersey Supreme Court has defined an accident as "an unlooked for and untoward event not expected or designed.” In the present case no evidence was introduced to show that the injury was intentionally inflicted either hv the deceased or by any other1 person. The testimony that the watchman had previously been firing a gun cannot he accepted as proving that he fired the shot responsible for the injury to the petitioner’s husband. The testimony that the cranberry bog is in' a hunting section, together with the testimony that shots were heard in the woods at different times on the afternoon of this occurrence, when coupled with the further testimony that no one seems to have heard the shot which killed the deceased, although many persons heard him scream when hit, makes reasonable the conclusion that the bullet came from the woods, and was fired by some unknown person, and that it accidentally, struck this man. The event seems to have been without design, and unexpected, and to be in compliance with the definition as given by the court.

Concerning (b), the courts have established that an accident occurs in the course of employment when it happens while a man Is doing what the terms of his contract call upon him to do. To decide this question a scrutiny of the terms of the employment will be necessary. The contract provided in particular two tilings: The employe was to pick berries, and he was'obliged in the furtherance of this contract to accompany the respondent’s agent to the place of employment on Saturday preceding the Monday when the picking was to begin. It would appear that the employes were expected to remain until the completion of the harvest, as the testimony shows that no one was paid anything until the work was done, this course being adopted in the employer’s interests to hold the pickers on the premises. In return for the above the employe was to receive fifty cents a bushel for the berries picked, and lodging. The testimony does not disclose whether or not board was also to lie furnished. Lodging was furnished under the general terms of the contract, and had no relation to the rate per bushel or the number of bushels picked. The second phase of his contract, involving wages on piece-work basis, for the picking of berries, had not been reached under the very terms of that contract, but the first element thereof was entered upon when lie left Philadelphia and quarters had already been assigned him and furnished. To that extent, therefore, he was in the course of his employment when shot.

Regarding (e), “an accident arises cout of’ the employment when it is something the risk of which might have been contemplated by a reasonable person when entering the employment as incidental to it.” The risk of being shot while engaged in a rural district, where gunning takes place, is certainly not foreign to the situation met in this ease. If this man had not entered into this contract he would not have experienced this accident. The injury must therefore have arisen “out of” his employment.

With regard to (d), the act provides that hoard and lodging shall constitute a portion of the wage, and shall be valued at five dollars per week. Heretofore this bureau, in the absence of any provision indicating otherwise, has divided this sum into two parts, assigning three dollars as the value of,the board and two dollars for the lodging. This, in connection with the minimum provision of the act, would establish the compensation rate as two dollars per week.

Reference may be had to the case of Bryant v. Pissell, 86 Atl. Rep. 458, for the rules quoted above.

Tn view' of the foregoing analysis I am. of the opinion that an award should be made in favor of the petitioner, and the following order will therefore be entered.

ORDER.

A petition having been filed in this case under the provisions of the Workmen’s Compensation act, and a hearing having been held on January 24th, 1925, with due notice, at which hearing the petitioner was represented by Harvey P. Satterthwaite, and the respondent by Aaron Y. Dawes, I do find and determine as follows:

That Sebastiano Coco was, on September 6th, 1924, in the employ of the respondent, Hannah Wilbur.

That under the terms of his contract at the time he was shot the only remuneration he was receiving was that of lodging, and that the time had not yet arrived when he was to perform service for a financial consideration.

That the petitioner’s decedent husband experienced an accident arising out of and in the course of his employment, which accident was subject to section 2 of the Compensation law, and was not self-inflicted nor1 due to intoxication, and of which the employer had knowledge within the period prescribed by law.

That the value of the wage at the time of the accident was' two dollars per week.

It is therefore on this 21st day of March, 19.25, ordered that judgment final be entered in favor of the petitioner, and that the respondent pay to the petitioner the sum of $150 on account of funeral expenses, and compensation at two dollars per week tor a period of three hundred weeks, amount-* ing to $600, of which amount $56 is due as of March 20th, 3 925. Following this date further payments will be made at two dollars per week for the remaining two hundred and seventy-two weeks.

The respondent will also pay to the petitioner’s counsel the sum of $150 for his services in this cause.

W. E. Stubbs, Deputy Commissioner of Compensation.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    ALFONSO CORDASCO, PETITIONER, v. M. WEISS & COMPANY, RESPONDENT.
    Injury From Fire During Lunch Hour — Employes Permitted to Remain on Premises During Lunch — Smoking Prohibited —Lighted Match, Thrown by Smoker, Caused Fire — Case Dismissed.
    On finding of facts and rule for judgment.
   A petition having been filed under the Workmen’s Compensation statute, alleging an injury arising out of and in the course of his employment, the petitioner, represented by counsel F. D. Massncci, and the respondent, represented by James Skeffington, attorney, and due notice having been given the matter, being heard on February 3d, 1925, before Honorable Deputy Commission Harry J. Goas.

The petitioner, in his testimony, alleges that in attempting to extinguish a fire at the plant he received burns which caused his disability. He further alleged that this occurred during a lunch period, and that it was his custom to remain at the plant during the lunch hour.

The respondent produced testimony by several witnesses, including foreman and manager of the respondent’s plant, showing that while these men were not prohibited from remaining at the plant during the lunch hour, they were permitted to do só: Further testimony showed that the plant

was so situated that it would not be impractical for the men to procure lunch outside of the plant conveniently and within the period prescribed for the lunch hour by the respondent.

Further testimony indicated that the petitioner was smoking, which was in direct disobeyance of the instructions and rules of the plant, and, in lighting a cigarette, threw the match so as to ignite some inflammable material, subsequently resulting in his present disability.

This was a voluntary act, in my opinion, on the part and in the course of his employment with the respondent within the purview of the Workmen’s Compensation law of this state.

On a thorough consideration of'the facts as presented in evidence at the time of hearing, and consideration of the briefs filed on behalf of the petitioner and the 'respondent, I find that the petitioner has failed to establish an accidental injury arising out of-and in the course of the employment.

It is therefore ordered this 17th of March, 1925, that the above petition be and is hereby dismissed.

Harry J. Goas, Deputy Commissioner.


author: Harry J. Coas, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    ANTONIO CIARLEGIO, PETITIONER, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, SUCCESSORS TO PUBLIC SERVICE GAS COMPANY, RESPONDENT.
    Hernia — Four of the Five Statutory Requirements in Such Cases Met, But the Fifth, Compulsion to Quit Work Immediately, Not Established' — Case Dismissed.
    On finding of facts and order for dismissal.
   'filie above-entitled matter came on for a hearing before Honorable Harry J. Goas, deputy commissioner, at the Department of Labor Building, Church and Ellison streets, in the city of Paterson, county of Passaic and State of New Jersey, on the 19th day of February, 1925, the petitioner being represented by Henry Marelli, Ms attorney, and the respondent by its attorney, James O. Boyd.

From the evidence submitted it appears that the petitioner was lifting a bag of iron fittings in a tool box, which was mounted on wheels, and felt a pain in his right side, and that he continued to work for six or seven minutes until the loading of the tool box was completed and then proceeded, with the help of other laborers, to push the tool box for about a mile to the corner of Twelfth avenue and Nineteenth street, in. the city of Paterson. Upon arriving at’ Twelfth avenue and East Nineteenth street he proceeded to dig a trench to locate a broken gas pipe. He then, at the usual quitting time, five o’clock, went to his foreman and told him he would be unable to return in the morning as he had a severe pain in his side. He went to his doctor the next morning, who said he had a hernia^ and then reported hack to the shop to the. foreman, also notified the foreman that he had a hernia, and alleges he sustained a hernia as a result of lifting the bag of fittings at the corner of Beech and Essex streets, in the city of Paterson, at three o’clock in the afternoon of July 11th, 1924.

Under Pamph. L. 1919, p. 204, ch. 93, ¶ 11, subdivision 10: “Hernia is a disease which ordinarily develops gradually, being very rarely the result of an accident. , Where there is real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall, compensation will be allowed. All other cases will be considered either congenital or of slow development, and not compensable,, being a disease rather than an accidental injury, unless conclusive' proof is offered that the hernia was immediately caused by such sudden effort or severe strain that—

■ “1. The descent of the hernia immediately followed the cause.

“2. That there was severe pain in the hernia region.

“3. That there was such prostration that the employe was compelled to cease work immediately.

“4. That the above facts were of such severity that the same was noticed by the claimant and communicated to the employer within twenty-four hours after the occurrence of the hernia.

“5. That there was such physicial distress that the attendance of a licensed physician was required within twenty-four hours after the occurrence of the hernia.”

In the case at bar the petitioner met with four of the requirements out of the five, but failed to meet the third requirement as outlined in the act, which requirement is that “there should be such prostration that the employe was compelled to cease work immediately.” It is admitted the petitioner continued to work at the same employment for six or seven minutes after he felt the pain, and that he then continued to do the next job he would b& required to do, which was to push this tool box on wheels for a distance of nearly a mile, and that he continued to dig a trench and worked up to the usual quitting time, which was five o’clock.

In the case of Rosario v. Heller Brothers, 2 N. J. Mis. R. 951, the facts of which were that the plaintiff sat down and held his side, stating he was unable to continue to work owing to the pain, and was taken to the hospital, where he was examined and. operated upon, the Supreme Court held that on that state of facts, that did not constitute prostration under the Workmen’s Compensation act and reversed the findings of the workmen’s compensation bureau.

In view of the decision in the Rosario case, we are of the opinion that this case should he dismissed, as there was no prostration such as would compel the emploj^e to cease work immediately.

It is therefore, on this 20th day of March, 1925, ordered that judgment final enter in favor of the respondent and against the petitioner, and that the petition be dismissed and the prayer of the petitioner denied.

Harry J. Coas, Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    ADAM GROSSARTH, PETITIONER, v. JACOB BECK, RESPONDENT.
    Leg Injury — Petitioner in Employ of Respondent For Three Days Before the Day of Accident, But Respondent Claims the Employment Terminated That Day — Petitioner Was in the Shop at Time of Accident, Bift Respondent Claims Was Not Employed — Burden of Proof on Petitioner to Prove Employment.
    For the petitioner, John 11. Pur sel.

    For the respondent, William G. Gebhardt.

      SUMMARY OP TESTIMONY.
    This is a case in which the petitioner, .Adam Grossarth, seeks compensation for -injury to his leg, which he alleges he received while in the employ of Jacob Beck, the respondent. According to his testimony he had been working for Mr. Beck, Monday, Tuesday and Wednesday preceding the Thursday on which he was hurt, and that he was working on Thursday and expected to continue throughout the day. He states that he had already fixed shoes on two horses brought to- the shop, and was engaged in fixing an iron tire for a wheel of a wagon belonging to R. W. Burch when he fell and broke his leg.
    The respondent contends that on Wednesday evening he paid the petitioner the nine dollars due him for the three days’ work, because the petitioner said he wanted to quit in order to go home and fix his automobile. The petitioner denies that he was paid, or that he said he wanted to go home. He usually lived with the respondent when working for him. The respondent says the petitioner did not work for him on Thursday.
    According to a witness, Mr. Burch, Grossarth was not at the shop, which was not yet open, when he come to have a tire fixed. He states he said nothing to- Grossarth about doing any work for him, and he saw no horses at the shop- that morning.
    .Floyd Warner testified that he arrived at the shop before it was opened, and that he got Mr. Beck to make him some iron hoops. Mr. Grossarth said he was not working. Warner states.he saw no horses, nor did he see Grossarth do any work.
    Lance • Cowél testified that Grossarth asked him to let him ride up with him, .and that Grossarth said he was not going to work that day. It seems that Cowel’s home is not very distant from Grossarth’s.

      Mr. L. Kent states that Grossarth told him he was going up with Cowel and that he “had no business doing it,” referring to his act which caused his injury. Kent also states he had no horses shod.
   OPINION.

From the foregoing 1 am of the opinion that Mr. Grossarth had worked for Mr. Beck the first three days of the week, and had lived with him. That on Wednesday evening he expressed a desire to return home, and that on Thursday morning he went to Beck’s blacksmith shop, where he had worked, to wait until Mr. Cowel started for home, intending to ride up with him. That while so waiting Mr. Beck undertook to fix the wheel tire for Mr. Burch, whereupon Grossarth interested himself in the operation to the extent of volunteering to try to extract an old tire from a scrap heap, in doing which he slipped and fell, injuring his leg.

Whether or not this he a true picture of the situation I am unable to find that Mr. Grossarth has established that he was in the employ of Mr. Beck at the time of the accident. The burden of proof rests on the petitioner, and the evidence fails to establish his contention that a contract of hiring was in force at the time.

It is therefore on this 30th day of March, 1925, ordered that this cause be and it is hereby dismissed.

W. E. Stubbs, Deputy Commissioner of Compensation.


author: John J. Stahl, Referee.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    JOSEPH SULLIVAN, PETITIONER, v. EDWARD F. CLARK, RESPONDENT.
    Injury From Frost Bite — Compensation Does Not Ordinarily Attach to Injuries Resulting From Acts of God — Circumstances May Make Such Injuries Come Under the Law as Excessive Exposure — Compensation Awarded.
   On petition for compensation. On finding of facts and determination. On rule for judgment.

A petition having been filed in the above-stated cause, praying for the compensation to which the petitioner may be entitled by virtue of the terms and provisions of an act entitled, “An act' prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, and the. several acts amendatory thereof and supplemental thereto, and a time and place for the hearing of said petition having been fixed, and it appearing to the referee that the said petition and order fixing the time and place of said hearing have been duly served upon the respondent, and the respondent having filed an answer to said petition, and the matter having been heard before John J. Stahl, referee, at the workmen’s compensation bureau chambers, 571 Jersey avenue, Jersey City, New Jersey, on July 18th, 1924, and continued on September 5th, 1924; September 11th, 1924; October 3d, 1924; October 10th, 1924; October 14th, 1924, and December 2d, 1924, in the presence of Frank W. Iieilenday, Esq., of counsel with A. A. Melniker, attorney for the petitioner, and James J. Farley, Esq., attorney of the respondent, and the parties having produced witnesses and having submitted their proofs, and counsel having been heard thereon, and the proofs and arguments having been duly considered, together with testimony .adduced—

1 do find and determine as follows from the evidence as follows :

The case at bar involves one of frost bite or freezing, and whether the same constitutes an accident arising out of and in the course of employment, within the purview of the Workmen’s Compensation act. The facts in evidence were that the petitioner, Joseph Sullivan, employed as a chauffeur of a newspaper delivery truck by the respondent, Edward P. Clark, while driving the said truck in the performance of his duties during the early morning hours of January 27th, 1924, by the severe cold and exposure to the same, suffered frost bites of both feet. As a general principle, the Workmen’s Compensation act assumes to provide compensation for industrial accidents only; those growing out of the employment and caused by the industry. Those caused by the employment and produced by the industry are compensatory. It does not apply to- injuries resulting from those forces of nature described in the common law as vis major, or the acts of God; such acts or forces as are wholly uncontrollable by men. However, it is not intended to- bold that injuries from frost bite can in no-'case be clue to an accident arising out of and in the course of the employment. It has been rightly said that they can be. Burke v. Ballentine, 38 N. J. L. J. 105. In the Burks case it was said that if there is some circumstance peculiar to the employment which subjected the workman to greater danger from the severity of the elements than would ordinarily he incurred by others not engaged in that particular employment, the accident does arise out of the employment. Burke v. Ballentine. supra. To suffer from frost bite is a risk known to all, and independent of employment, yet, the circumstances of a particular employment might make the risk not a general one, but one sufficiently exceptional to justify its being held that the accident from such risk was an accident arising out of the employment.

Prom the evidence adduced in the present case, I am of the opinion that the petitioner, Joseph Sullivan, during the course of: liis employment on January 27th, 1924, was subjected to greater clanger from the severity of the weather, and because of this extra hazard, suffered from frost' bite of both feet, which I hold constitutes an accident arising out of and in the course of his employment. I, therefore, find as a fact:

1. That the petitioner, Joseph Sullivan, was employed by the respondent, Edward P. Clark, on January 27th, 1924, and for a period of three years prior thereto, as a. chauffeur, and that his duties, among other things, consisted of driving an open Mack truck and making early morning delivery of newspapers; that the said employment was subject to the provisions of section 2 of the Workmen’s Compensation act, otherwise known as the elective schedule of compensation.

2. That the- petitioner received wages from the respondent at the time of. his injuries at the rate of $24 per week, which included his flat weekly salar3r, plus $3 extra for night driving.

3. That on the aforesaid 27th day of January, 1924, the petitioner met with accident arising out of and in the course of his employment as hereinbefore described; of which accident respondent had due notice within the statutory period, as described in paragraph 15 of the aforesaid act.

4. That as a result of said accident, the petitioner suffered a temporary disability lasting from January 27th, 1924, to December 2d, 1924, and that the petitioner has a permanent disability of five per centum of the total, caused by the involuntary contraction of the tendons of the toes of both feet, aggravated or otherwise brought on by the frost bite.

5. That the petitioner is entitled to the medical expenses and hospital services in the sum of $100, as provided by paragraph 14 of the aforesaid act; the petitioner is limited to this amount because of his failuré to furnish or file in due time an application or petition for extra medical allowances as provided in paragraph 14.

6. That the petitioner’ attorney is entitled to an allowance of counsel fee which I fix in the sum of $200, and assess the same against the respondent. ■

7. That the petitioner is entitled to compensation for a period of forty-four and two-seventh weeks at the rate of $16 per week for temporary disability, and twenty-five weeks at the same rate for permanent disability, based on five per cent, total permanent disability.

8. Costs of stenographic attendance will he allowed the petitioner.

* * * * * * $ $ $

John J. Stahl, Referee.


author: Harry J. G-oas, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    ADOLF GUTMAN, PETITIONER, v. ADOLPH SCHREPFER, RESPONDENT.
    Cut on Hand — Infection Set In — Question of Relationship of Employer and Employe — Casual Employment Claimed — Contract Work Changed to Day Work — Compensation Allowed.
    On findings of fact and rule for judgment.
   A formal petition for compensation under the Workmen’s Compensation act was duly filed herein, process was duly served, and thereafter the matter duly came on before me for trial at Paterson on January 29th, 1925. The petitioner appeared by Kent & Kent (Samuel Kent, of counsel) ; the respondent appeared by Isidore Rabinowitz, Esq.

I hereby find and determine as follows:

1. The petitioner, Adolf Gutman, was an all-around mechanic.

2. He owned no business of his own, nor was he engaged in any business of his own.

3. He had no business address, and resided at his home at 116 Alabama avenue, Paterson, New Jersey.

4. On or about July 11th, 1924, he had a talk with Adolph Sehrepfer, the respondent, at the latter’s place of business, which is a store at No. 80 Main street, Paterson, concerning certain painting work to be done at the latter’s home at No. 383 East Thirty-first street, Paterson. Certain specific work, pertaining to the painting of certain window frames, was discussed, at which time the petitioner agreed to do the work for fifty and 00/100 dollars ($50), with the understanding that all paints and materials were to be bought and paid for by the respondent. This arrangement was satisfactory to the respondent, and, accordingly, on July 11th, the petitioner commenced work. The respondent resided at this address with his family. During the course of work, on the first day, several changes and additional work were requested by the wife of the respondent. The petitioner then communicated with the respondent and informed him of the additional work that was requested, and it was then and there agreed between the petitioner and the respondent that the original understanding that petitioner be paid $50 for his work be terminated and canceled, and that the petitioner continue to work and that he be paid wages at the rate of nine and 00/100 dollars ($9) per day, amounting to forty-nine and .50/100 dollars ($49.50) for a five and one-half day week. This arrangement was satisfactory to the petitioner, and he continued to so work, reporting at eight o’clock in the morning, taking off an hour for lunch time, and working till five o’clock in the afternoon. The house was owned by Mr. Sehrepfer. Mr. Gutman ordered some of the paint, the balanee was ordered by Mr. Sehrepfer, but all bills were sent to Mr. Sehrepfer and were paid by him. None of the paint or materials were billed to Mr. Gutman, nor were any of these items charged to Mr. Gutman, nor were they paid for by him, nor was any charge or claim made by Mr. Sehrepfer against Mr. Gutman for any of these items.

Mr. Gutman had complained to Mr. Sehrepfer that it was very difficult to do the work alone, whereupon Mr. Sehrepfer engaged one William Meyerhofer to work also. Mr. Meyerholer was employed directly by Mr. Schrepfer, who paid him weekly wages for his work. During the course of the employment aforesaid, and while so working, on July 21st, the petitioner was opening a can of paint that was to be used in connection with the work, when he cnt the second finger of his right hand with the jagged edge of the tin container. The wife of the respondent was in the honse, and, in fact, applied home treatment to the cnt. Mr. Schrepfer also knew of the happening of the accident. Petitioner, however, continued to work, because at that time the injury was not at all serious. Both petitioner and Mr. Meyerhofer continned doing painting work and other general work in and about the house. Both Mr. and Mrs. Schrepfer at all times gave specific instrnctions as to what work was to be done and how it was to be done, and both of them absolutely controlled and supervised the manner and method of the work. At one time, Mr. Schrepfer threatened to fire both of the men for the reason, as he claimed, that they were not working fast enough and were not earning their wages. After the painting work was completed, Gutman and Meyerhofer were put to work taking out a rotted cross-beam in the cellar of the house and replacing the same with a new beam. Mr. Schrepfer purchased the beam and had it delivered to the house. After this work was finished, the men were put to work repairing the parquet floors in the home. After some work was clone on the parquet floors, Mr. Gutman was sent by Mr. Schrepfer to do some work in the Schrepfer store on Main street, and continued to work under the direction and supervision of Mr. Schrepfer. Payment of the wages of both men was made by Mr. Schrepfer by checks, which were issued regularly and, approximately, weekly. It is true that the first check issued to Mr. Gutman was for more than the sum that represents a week’s wages, but I am satisfied that this check was the first one issued to him and was in payment of Avages covering a period of approximately tAvo weeks. Mr. Schrepfer testified that the first check issued represented full payment to Mr. Gutman for work done upon an express contract. In the face of this conflicting testimony, I am satisfied that there was no express or independent contract existing at the time, and that this check was issued in payment of wages due.

6. Mr. Gutman continued to work until some time in September, .when he was forced to abandon all work on account of the serious condition that had developed in the finger.

7. A further factor has dispelled whatever doubt I may have had regarding the relationship of employer and employee in this matter. Mr. Schrepfer himself testified, on examination by his own attorney, that he had instructed his attorney (Mr. Rabinowitz) to make an offer of five hundred and fifty and 00/100 dollars ($550) to the attorneys for the petitioner in settlement of the action. This offer was made in court at a prior hearing in the presence of the referee then sitting. This offer of payment was made without any qualification or limitation. The permissible inference is therefore that the respondent recognized the relation of employer and employe, and it will not be presumed that - this offer of five hundred and fifty and 00/100 dollars ($550) was by way of a gratuitous offer. The respondent raised the. proposition upon the trial that the employment, if such was the relationship, was casual, and not such as is contemplated under the Compensation act. The employment continued for a considerable period, continuously, up to the- time of the accident, and for a considerable period following the happening of the accident. The employment was not, therefore, casual.

8. I am further aided in making my findings in this matter after seeing and observing the demeanor of the witnesses for the respective parties upon the witness-stand.

9. Following the laceration of the finger in the accident, an infection set in. The finger became very much swollen at the second phalange. The phalangeal joint at this point is totally and permanently obliterated on account of the ankylosis that has developed. The finger, therefore, is stiff and straight. It is true that he has slight function at the metacarpal-phalangeal joint, which is the point where the finger joins the hand, but on account of the loss of use and function of the middle joint of the finger, the extent of use and function of the finger is. nil; in fact, on account of the stiffened condition and the fact that the finger is straight and protrudes away from the direction in which the rest of the fingers bend, petitioner has a condition which is worse than if the finger had been amputated entirely. It is my opinion that the condition of the petitioner’s hand will be benefited by having the finger amputated, but that is a matter which, of course, rests with the petitioner. Petitioner received extensive treatment from approximately the date of the accident down to and including the present time. Even after the permanent stiffness developed, he continued to receive treatment in an endeavor to diminish the swelling at the joint. This swelling has been diminished to a considerable extent, although the joint at this point is still abnormally large. I feel that a period of ten (10) weeks is sufficient to cover his period of temporary disability.

10. I find that the reasonable value of the medical services rendered to him is one hundred dollars ($100).

11. I find, therefore, that the petitioner was injured in an accident arising out of and during the course of his employment; that respondent had due knowledge and notice of the accident; that petitioner’s wages at the time were forty-nine ami 50/100 dollars ($49.50) per week; that he was temporarily disabled for a period of ten (10) weeks; that he has suffered one hundred per cent, permanent loss of use of the second finger of the right hand.

❖ i¡:

Harry J. G-oas, Deputy Commissioner.


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    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    JOSEPH KRAPOWITCH, PETITIONER, v. PUBLIC SERVICE RAILWAY COMPANY, RESPONDENT.
    Injury to Eyes — Extent of Injury, Whether Permanent and to What Degree.
    On petition for compensation. On finding of facts, determination and rule for judgment.
   This is a workmen’s compensation case brought under chapter 95 of the laws of 1911, and the supplements and amendments thereto, and was held before the Honorable Harry J. Goas, deputy commissioner of compensation, at No. 9 Franklin street, Newark, New Jersey, on Wednesday, the 10th day of September, 1924, the petitioner being represented by Samuel Press, his attorney, and the respondent by its attorney, James O. Boyd.

From the facts presented at the hearing it appears that the petitioner, Joseph Krapowitch, who resides at No. 21 Warren street, Newark, New Jersey, was employed by the respondent to work on an electric motor, and on February 15th, 1924, some sand fell on the commutator • of the said motor, causing a bright flash which temporarily blinded the petitioner. .

All the facts as to the happening of the accident were admitted by the respondent, the only question at issue being whether the petitioner sustained a permanent injury to the eyes or any permanent disability whatsoever as the result of the accident.

The petitioner, who was thirty-four years of age, was employed as an electrician and worked in a pit on the motors of trolley cars, and on the day when this flash occurred he was sent to Dr. Holmes, the company physician. The doctor said that he found an inflamed condition of the eye, which he treated, and after the inflammation subsided he found that the petitioner had a defect in vision, which was in no way connected with the accident, and for which he prescribed glasses.

Tbe only other medical testimony as to whether or not the petitioner had suffered a permanent loss of function of the eye was the testimony of Dr. Samuel Hirschberg, who testified on behalf of the petitioner. The doctor, after a lengthy direct and cross-examination, testified (on p. 45), that the petitioner has twenty-seventieth vision in the left eye and twenty-fortieths vision in the right eye without the aid of glasses, and with the aid of glasses his vision is pretty nearly normal in both eyes. On page 48 of the testimony, in answer to the question: “Q. What is the’ name of the condition that canses this refractive error? A. Myopic astigmatism. Q. That.was not caused by the accident, was it? A. I doubt it.” So, that it would seem from the doctor’s testimony that it was the doctor’s opinion 1hat,the myopic astigmatism, which was causing the defectivo vision, was not due to the accident.

Tinder the case of Bryant v. Fissell, 84 N. J. L. 73; 86 Ail. Rep. 458, the burden of proof is on tbe petitioner to prove that he is suffering as the result of an accident arising out of and in the course of his employment.

In this case the petitioner’s own doctor testified that he would not say that myopic astigmatism was due to the accident, and, in the case of Reimers v. Proctor Publishing Co., 89 Atl. Rep. 931; 85 N. J. L. 441, it was held that where the doctors refuse to state that death was caused by tbe accident there is no basis for an inference to that effect by the court, and we feel that in the case at bar, where the petitioner’s doctor refused to state that the disability to tbe eyes was tbe result of the accident, and bearing in mind that the respondent’s doctor, who- treated the petitioner immediately after the accident, states positively that the present-condition of the eyes of the petitioner is not due to the accident, we feel that the petitioner has failed to sustain the burden of proof required by law and that the case should he dismissed.

It is therefore, on this 12th day of June, 1925, ordered that judgment final enter in favor of the respondent and against the petitioner, and that the petition be dismissed and the prayer of the petitioner denied.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    WALTER CLIFF, PETITIONER, v. BECKLY PERFORATING COMPANY, RESPONDENT.
    Petitioner Not Appearing at Hearing — Petitioner Not Acting in Capacity Claimed — Petition Dismissed.
    On determination and dismissal.
    Eor the petitioner, Samuel Greenstone.

    Eor the respondent, Richard IF. Baker.

   A formal claim petition having been filed in the above matter asking for compensation under the terms of the- Compensation law of this state, a2id an answer having been duly filed, the case came on for a formal hearing before me in Elizabeth on June 4th, 1925, at ten a. m., the petitioner being represénted by Attorney Samuel Greenstone and the respondent being represented by Attorney Richard W. Baker. On that date the attorney for the petitioner appeared and the attorney for the respondent, with the witnesses for the respondent, appeared, but the petitioner did not appear.

The case was held until two o’clock, when the attorney for the petitioner appeared with an affidavit from the petitioner’s wife, stating that the petitioner was called away to the plant where lie was employed as a machine operator, where he had to take the place of the foreman of the tool department, who was sick, and that unless he appeared the department would close down. On the strength of this affidavit the case was adjourned, over the objection of the attorney for the respondent, to June 18th.

On June 18th, 1925, at ten a. m., the case came on for a hearing, at which time the attorney for the petitioner was present bat the petitioner did not appear. The attorney for the respondent appeared and produced an affidavit from the superintendent of the plant of the Kenilworth Button Manufacturing Company, where the petitioner worked, which showed that the petitioner did not at any time act as a foreman of the tool department. Accordingly, a motion of the attorney for the respondent to dismiss the ca,se as not having been moved was not only granted as of the date of the hearing on June 18th, but was granted as of June 4th, when the adjournment was granted merely because of a production of an affidavit which proved to he false.

Accordingly, this case is hereby dismissed, with costs assessed against the petitioner.

Citarles E. Corbin, Deputy Commissioner.


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    The following memoranda were, on September 22d, 1925, entered in the matter of applications to relax the rules regarding Bar Examinations.
    IN THE MATTER OF THE APPLICATION OF W. ORVYL SCHALICK FOR LEAVE TO TAKE THE BAR EXAMINATIONS AT THE OCTOBER TERM, 1925.
    Decided September 22, 1925.
    Rule Regarding. Registration With One Not a Counseior-at-Law Not to be Relaxed.
   Memorandum by Part III:

The statement submitted by this applicant indicates that on September 1st, 1924, he registered as a student-at-law with a member of the bar who was not a counselor, -and served with him for about six months until the applicant became aware that rule 4-C, as amended, required service under a counselor and not merely under an attorney. He now asks that this rule be relaxed -because of his ignorance of it, and that he be permitted to take the examinations as though he had served a counselor for this six months.

The application must be denied. There was a general overhauling of these rules in June, 1923, some fifteen months before the applicant began his service under an attorney, and we are unable to see any proper excuse either for his ignorance or that of his preceptor. If this application were granted, it would be a precedent for an indefinite number of others. As the matter stands, the total service of the applicant, under the rule is only about six months, and that is not enough.


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    IN THE MATTER OF THE APPLICATION OF CHARLES MOLLOY TO FILE CERTIFICATE OF COMMENCEMENT OF CLERKSHIP NUNC PRO TUNC.
    Decided September 22, 1925.
    Neglect to File Certificates of Commencement of Clerkship— Prior to Amendment of Rule Court Was Disposed to be Lenient — Change Was Not Made to be Disregarded.
   Memorandum by the court:

The difficulty with this case, which we deem, insuperable, is that it comes under the amended rule 4-E as in effect August 1st, 1933. Prior to that date, the court was disposed to he lenient in cases of neglect to file certificates of commencement of clerkship, provided any reasonable ground was shown for permitting them to be filed out of time. By the amendment of June 15tli, 1933, rule 4-E was purposely made much more rigid and is now specific in providing that "no clerkship shall be deemed to have commenced until such certificate shall have been filed as aforesaid, and the period of clerkship shall be computed from the actual filing of such certificate and not otherwise.”

It should be needless to say that this change in the rule was not made to be disregarded and, while -the court regrets that by the oversight or neglect, whatever it may be, of the counselor with whom this applicant began his service, as he claims, on June '16th, 1934, the certificate was not filed until June 30th, we are unable to give that certificate any effect except from the date of filing, and we are also unable to accept at this time any other certificate out of time.

The application to file the certificate submitted is therefore denied.


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    IN THE MATTER OF THE APPLICATION OF EMIL HERRIGEL FOR LEAVE TO FILE CERTIFICATE OF COMMENCEMENT OF CLERKSHIP NUNC PRO TUNC.
    Decided September 22, 1925.
   Memorandum by the court:

This case is similar in its fundamental features to that of Charles Genzler, respecting which a memorandum is filed herewith. The present application is based upon a proper affidavit', and the application was made by a counselor. A qmle may be entered permitting the filing of certificate of commencement of clerkship mine pro tunc.


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    IN THE MATTER OF THE APPLICATION OF SIGMUND AUERBACH TO FILE CERTIFICATE OF COMMENCEMENT OF CLERKSHIP NUNC PRO TUNC.
    Decided September 22, 1925.
   Memorandum by Part III:

A careful examination of the papers submitted in this case satisfies us that the applicant has not shown himself to have complied with the rules relative to the service of clerkships. The application is therefore denied.


text:
    IN THE MATTER OF THE APPLICATION OF CHARLES GENZLER FOR LEAVE TO FILE CERTIFICATE OF COMMENCEMENT OF CLERKSHIP NUNC PRO TUNC.
    Decided September 22, 1925.
    Clerkship Begun Before the Amendment Was Made to Rule, and Where Applications Otherwise Meritorious Were Allowed— Application to be Made fay Counselor-at-Law Not by Applicant.
   Memorandum by the court:

On an application of this kind, when the case appears to be otherwise meritorious, the question to be settled is whether ,the service of the applicant, in fact, began before or after Aitgust 1st, 1923, on which date the amendment of June 15th, .1923, to rule 4-E, took effect. Prior to that date, the policy of the court had been to permit certificates of commencement .of clerkship to be filed out of time, on the theory that this was not a matter in which the public was particularly interested, as was the case with a notice of intention to take the bar examinations. Hence, this case is to be disposed of on the rule as it stood prior to June 15th, 1923.

The application in this case was made by the applicant personally and not by any counselor-at-law in his behalf. It should be made by a counselor-at-law, and should be based upon a proper affidavit, stating the facts fully. Upon the filing of such affidavit and application by a counselor, the court will be" disposed to consider the matter favorably if the facts are as they were stated by the applicant in person.


text:
    IN THE MATTER OF THE APPLICATION OF JOHN G. TRUSDELL TO BE ADMITTED TO EXAMINATION FOR THE BAR.
    Decided September 28, 1925.
   Memorandum by the court:

The papers in this case indicate that the applicant began his period of service of clerkship before the change in the rule relating to filing of certificates of commencement of clerkship and, consequently, he is entitled to the somewhat liberal treatment that has heretofore been accorded students under the rule as it stood originally. In view of the facts stated in the' petition, the certificate of commencement of clerkship may be filed nunc pro tunc.


text:
    IN THE MATTER OF THE APPLICATION OF R. M. CAPLIN TO BE ADMITTED TO THE BAR EXAMINATIONS OF OCTOBER TERM.
    Decided September 28, 1925.
    Applications Must be Made by Counselor-at-Law, Not by Student, and on Opening Day of Court.,
   Memorandum by the court:

This application is not made in fom required by the miles which prescribe that such application shall be made by a eounselor-at-law and in open court on affidavit or petition verified by affidavit. The court cannot undertake to consider these informal applications made orally and by students themselves at all sorts of times and places, and the proper conduct of the business of the court requires that matters of this kind shall be brought up in a regular and formal way.

Any application to be made in this case should be made on the opening day of the October term, and by a counselor-at-law, based upon papers drawn and submitted in due form.


text:
    IN THE MATTER OF THE APPLICATION OF G. FOR LEAVE TO TAKE THE EXAMINATIONS FOR THE BAR.
    Upon Failure to Pass Examination, Studies Must be Continued in Office of Counselor-at-Law, Not in a Law School.
    Decided September 28, 1925.
   Memorandum by the court:

The facts in this ease as stated orally and not by way of affidavit or in any formal way seem to be that this student failed at the examination last spring, and, consequently, under rule 6-C, he was required to serve a period of apprenticeship in the office of a counselor-at-law until the next examination. Instead of doing this, he seems to have gone to a law school and taken part of a course at that institution over the prescribed period, and wishes this to be counted in lieu of his service in a law office.

In this and in any other "cases of similar character, our ruling is that the rule specifically required service in a law office, and that it should he considered as meaning what it says; consequently, the application must be denied.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    HARRY D. BOICE, PETITIONER, v. BOARD OF EDUCATION OF MATAWAN, NEW JERSEY, RESPONDENT.
    Distinction Between Employe and Independent Contractor — Relationship of Master and Servant Not Determined by Manner of Payment, But by Control Exercised by Master.
    Por the petitioner, Stokes & McDermott.

    Por the respondent, Collins <& Corbin.

   In this cause, coming on to be heard under the Workmen’s Compensation act, the question to be determined is as to whether the petitioner was an employe or an independent contractor at the time he was injured. Under the statute an employe is one “who performs service for another for a financial consideration exclusive of casual employments, which shall be defined, if in connection with the business of the employer, as employment, ‘the occasion for which arises by chance, or is purely accidental.” The courts, however, have gone further than this by ruling that one is not an employe, but an independent contractor, “where an agreement provides for a result to be accomplished, but leaves to the person employed the choice of means and methods by which it shall be accomplished.” The court further held that the relation is “not that of master and servant.” Otmer v. Perry, 108 Ail. Pep. 369. The case above cited also quotes the following : “The relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or, in other words, not only what shall be done, but how it shall be done.” 26 Gyc. 966, and cases cited.

That the petitioner was not a casual employe will be clear from a reading of the definition above quoted. The work was not the result of an emergency arising by chance, but an operation foreseen and regularly provided for.

The facts in this case, as I determine them by hearings held in Asbury Park, Freehold and Matawan, are substantially as follows:

On or about August 25th, 1923, Mr. Smith, the president of the Matawan board of education, directed Albert A. Boyce, the school janitor (riot Harry D. Boice, the petitioner), to have the toilets at the school properly prepared for the ensuing year. The janitor had never performed this work, but had, in previous years, secured a Mr. Joseph M. Wenzel to clean the toilets. On this occasion Mr. Wenzel was busy, and Boyce went to Boice, the petitioner, who owns a team, who finally agreed to perform the work with the janitor. The petitioner claims that he always received one dollar per hour when doing work for the board. This included the use of the team. He testified that he was to receive this sum on this occasion, but did not make clear to me any definite arrangement as to how he was to be paid. His testimony in this ¡respect was vague and uncertain.

Mr. Boyce, the janitor, recited a very definite arrangement, covering the engagement. He and the petitioner were to do the work together, and the board would pay them $25, out of which barrels were to be purchased at a cost of $3, leaving $22 to be divided equally between the two men. This service was not required of Mr. Boyce as an element of his contract-as janitor, but an operation in which he stood on the same basis as the petitioner. I am unable to find, therefore, that he was an agent of the board overseeing the performance of the work,-but conclude that these two men were working under a partnership arrangement, to share equally the profits, and that they were independent contractors, inasmuch as the school board did not retain the right to direct the manner of doing the work, but were interested only in its accomplishment.

Assuming, in order to complete the analysis of this case, that the petitioner’s statement is correct, that he was to receive one dollar per hour for his team and work, I am unable ¡to see that a different conclusion could be reached, as the Otmer ease, above cited, involved a situation in which .the petitioner was being paid at the rate of one dollar an hour, and the Supreme Court held him to have been an independent contractor, even though the respondent terminated the agreement and again resumed it during the progress of the operation. The relation of master and servant is not determined by the manner of pajunent, but by the control exercised with regard to the manner of doing the work.

In the light of the foregoing, this cause must be and it is hereby dismissed.

W. E. Stubbs, Deputy Commissioner of Compensation.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    ANNE BOYD, PETITIONER, v. OSCAR ANDERSON, RESPONDENT.
    Domestic Service — Injury to Finger Temporary and Permanent— Respondent’s Failure to Appear.
    On petition for compensation, determination and order.
   ^ # # sfc ❖ % í*í ❖

The petitioner being represented by Lucille M. Jessurun, ,Esq., and the respondent being unrepresented, and-it appearing further that the matter was adjourned until June 25th, 1925, in order to give the respondent an opportunity to appear, and notice having been served upon the respondent of such adjournment, and the defendant having again failed to appear, the matter was again adjourned to July 1st, 1925, and notice of said adjournment having been duly served upon •the said respondent, the matter finally came to a hearing on July 1st, 1925.

Depositions cle bene esse of Dr. Jdseph Jacobson, who attended and treated the petitioner, were taken before Joseph B. Bloom, a master in chancery of New Jersey, on June 29tli, 1925, in pursuance of the Evidence act of 1900.

And it appearing further that by the evidence furnished by the petitioner, there is no dispute as to the defendant’s liability, and that the only question to be decided by the court was the question as to the, amount of temporary and permanent disability, 1 do find and determine as follows:

1. The petitioner, Anne Bo-yd, was on February 10th, 1925, in the employ of the responden!, Oscar Anderson, in the capacity of general houseworker, and said employment was subject to the section 11, chapter 93, public laws, of 1911, commonly known as the Workmen’s Compensation act, and the amendments and supplements thereto.

2. That on the aforesaid date, and while in said employ, the petitioner was endeavoring to open a faucet in the kitchen, and while so doing caught the index finger of her right hand between the top screw of the faucet and the body of the faucet, and sustained injuries consisting of ankylosis of the first .phalangeal articulation of the right index finger; said accident and injury arose out of and in the course of said employment, and there is no evidence that the accident and injury was intentionally self-inflicted, nor that intoxication was the proximate cause thereof.

3. The respondent had actual knowledge of said accident and injury within the time prescribed by the aforesaid act.

4. At the time of said accident and injury, the petitioner was receiving from the respondent a wage of $15 per week.

5. As a result of said accident, and injury, the petitioner has sustained disability partial in character and permanent in quality: Being sixty per cent, loss of the function of the index finger of the right hand, for which the petitioner is entitled to. be compensated for a period of twenty-one weeks at the rate of $10 per week, beginning March 28th, 1925, about which time the temporary disability ceased.

■ 6: The petitioner is entitled to compensation from-the respondent for temporary disability from February 21st, 1925, to March 28th, 1925., at the rate of $10 per week, and to compensation for permanent disability for twenty-one weeks, beginning March 28th, 1925, at the rate of, $10, per week.

7. The petitioner has received no moneys from the respondent, either for temporary disability or for permanent injuries, and there is now due the petitioner from the said respondent, for temporary disability the sum of $.60, and for ¡permanent disability the sum of $210, $200 of which has accrued and is now due and owing.

8. The petitioner in this proceeding expended the sum of $11 for medical services, to which she is entitled.

9. Petitioner is further entitled to an allowance of $50 for e counsel fee and all costs of this proceeding.

Wherefore, it'is'on this 6th day of July, 1925,- ordered that judgment final'b'e entered in favor of Anne Bovd, the petitioner, and against Oscar Anderson, the respondent, and that the said respondent do forthwith make payment to the petitioner of the sum of $60 for temporary disability, being for a period of six weeks, at the rate of $10 per week, and $140 for permanent disability, being for a period of fourteen weeks, which has now' accrued, at the rate of $10' per week, and the sum of'$11 for medical expenses.

It is further ordered that the said respondent, Oscar Anderson, pay to Lucille 'M.' Jessurun, attorney of said petitioner, the sum of $50 as an attorney fee, in accordance with the statute in such case made and provided.

And it iá further ordered that the aforesaid amount of compensation in arrears, the medical expenses-, the said counsel fee, and the'cost’s of this suit to be taxed, be paid forthwith -by the respondent.

. Hakry J. G-oas, Deputy Commissioner of Compensation.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    PHILIP PERROTTA, PETITIONER, v. UNITED PIECE DYE WORKS, RESPONDENT.
    Hernia — Failure to Show Immediate Prostration.
    On determination ancl dismissal.
   A formal claim' petition having been filed in the above matter, asking for compensation under the terms' of the Compensation law of this state, and an answer having been duly filed, the case came oil before me in Hackensack on June 25lh, at which time the petitioner himself was present, and the respondent was represented by Attorney Richard W. Baker.

The petitioner took the "stand and testified thát between nine-thirty and ten o’clock in the morning he felt a pain while lifting a spool of silk. He stated that he spoke to a fellow-employe about it, but tried to .complete his job of setting up this reel, which normally takes between one hour and one hour and a half to do. l.Te stated that he was unable to complete the job, and about eleven o’clock he reported to his foreman that he had such bad pain that ho could not continue working. He. stated that his foreman told him to keep on working until twelve o’clock and then he could go home.. .He testified that he attempted to do this, but at eleven forty-five the pain was so bad that he had to stop and go home, and that he went to the doctor that afternoon.

After the petitioner testified in regard to the case the attorney for the respondent moved that the. case be dismissed as not complying with the five requirements of the hernia,section of the Compensation law.

Accordingly, I find and determine that the,petitioner has failed to prove a hernia under the terms of the Compensation law. in that he failed to show prostration so that he was forced to cease work immediately, and, accordingly, I order that the case be dismissed without cost to either party.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    WATSON B. GASKILL, PETITIONER, v. CLARENCE MASON, RESPONDENT.
    Disregard of Employer's Instructions' — Amputated Leg — Agreement to Contribute to Purchase of Artificial Leg — Alleged Agreement Regarding Board — Notice Not Legally Given Nor Petition Filed.
   :¡: i\i ;¡; # t\i

1 do find and determine from the evidence as follows: That on April ñth, 1921, the petitioner was in the employ of the respondent, and was injured by being thrown from a wagon, causing a fracture of his leg, which had to be amputated. The respondent contends that inasmuch as the petitioner violated his instructions by driving down Main street hill, in Mount Holly, which he was told not to do, he is under no obligation with regard to the Compensation, law. In view of the decisions, this claim is of doubtful merit.

According to the testimony, there was a written agreement between the parties covering a payment of $100, which money seems to have been intended for the purchase of an artificial limb. This agreement definitely stated that any legal liability was expressly denied. It cannot, therefore, be held to be an agreement under and recognizing the jurisdiction of the Compensation law. Even if this be admitted, its date as of July 2d, 1921, precludes the possibility of a hearing at this date.

The petitioner’s attorney claims that the agreement on the part of the respondent to board the petitioner because of his permanent injury constitute? an agreement permitting a review of ins case, inasmuch as the injured never received any compensation for his permanent disability. This also is not an agreement under the terms of the statute, which at no point provides that board shall be furnished as compensation. It still further appears that the petitioner did not, within the last year, prior to the filing of the petition, board with the respondent.

There being no signed agreement for compensation, nor a petition filed with the bureau within one year of the date of the accident, this cause must be and it hereby is dismissed.

W. E. Stubbs, Deputy Commissioner of Compensation.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    MARGARET EINHALZ, PETITIONER, v. CALCO CHEMICAL COMPANY, RESPONDENT.
    No Proof of Notice — No Proof of Accident.
   The above came on for trial on Thursday, July 16th, at Somerville, New Jersey, before Hon. Charles E. Corbin, deputy commissioner, in the presence of John P. Cullen, attorney of the petitioner, and Frank G. Turner, attorney of the respondent.

The petitioner and witnesses, on her behalf, duly testified, and it appeared Blazar Einlialz died on September 11th, 1924. Age of about thirty-two years and seven months. Left him surviving the following dependents: His widow, Margaret Einhalz, thirty-two years 'of age, and three children — Lawvence, ten years of age; Mary,- nine- years of age, and Agnes, four years of age, who were dependents of the deceased. At the time; of his death he was not in the employ of the respondent, but was employed by a steel company at or near Dunellen, New" Jersey. Up until August 23d, 1924, from August 5th, 1924, he had been in the employ of the respondent. Average wages were about $21 per week.

There was-no proof of notice to-the respondent, and no proof of any accident -arising out of and in the course of the employment of the deceased. During his employment by the respondent the deceased has been employed as a general laborer, and he was-not'employed as a worker in chemical products; There was no proof-that the death of the deceased was caused by an occupational disease growing out of and in the course of his employment within the- terms of the statute in such case made and provided.

At the close of the petitioner’s case the attorney of the respondent moved to dismiss the petition.

It is therefore, on this 19th day oí August, 1925, ordered that the petitioner’s petition be and the same is hereby dismissed. ■ '

Charles E. Corbin, Deputy Commissioner.


author: IIauey J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    MARY KITKA, WIDOW, PETITIONER, v. STANDARD UNDERGROUND CABLE COMPANY, RESPONDENT.
    Cerebral Hemorrhage — Medical Testimony Merely Shows Possibility That Its Cause Was An Accident: — Burden of Proof Not Sustained.
    On determination and dismissal.
   A formal petition having been filed in the above matter, asking for compensation under the terms of the Compensation law of this state, and an answer having been‘duly filed, the same came on for hearings before me in Perth Amboy on April 14th, 1925, and July 3d, 1925, the petitioner being represented by Attorney Joseph P. Deegan and the respondent by Attorney Richard W. Baker. On behalf of the petitioner, Mr. Rosko, the petitioner, Mrs. Marko, Mr. Koelesai, Mr. Gregg, Mr. Mazur and Dr. Smith were called to testify. On behalf of the respondent, Mr. Hurley and Doctors Ramsey and Lund were called to testify.

After carefully going over the testimony in the case I hereby find and determine that the petitioner has failed to show that the decedent died because of an injury by accident arising out of and in the course of his employment with the respondent. 1 find that the petitioner has failed to show that there was any accident, and has failed to show that the cerebral hemorrhage, from which the petitioner died, was either caused or aggravated by any strain alleged to have been received in his employment. Tlie only medical testimony produced. by the petitioner was that it was merely a possibility, and that in the opinion of the doctor he did not know what Aid cause the hemorrhage to develop. I thereby find that the petitioner lias failed to assume the burden of proving his case either as to there being an accident or as to the accident causing the death.

Accordingly, the ease is hereby dismissed, without costs to either party.

IIauey J. Goas, Deputy Commissioner.


author: Harry J. Go as, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    SALVATORE RUSSO, PETITIONER, v. D. W. McGEE CONSTRUCTION COMPANY, RESPONDENT.
    Extent of Disability — Re-examination at End of Year Suggested —Partial Permanent Disability Now Apparent.
    On determination and rule for judgment.
    For the petitioner, Gaetano M. Belfatto.

    For the respondent, Raymond E. Taylor,
   # £ * i|: . * ❖ . ❖ *

The only question at issne in the case was the extent of the permanent disa.bilit}-, all other facts being admitted.

From the evidence offered in behalf of the petitioner it would appear that the ¡Detitioner at the present time is totally disabled; from the evidence offered by the respondent it would appear that the petitioner is partly disabled, and in all likelihood would improve, and that in the course of time he may become normal.

It is my determination that in view of the foregoing the best interest of the petitioner would be served if permitted to be re-examined shortly after the expiration of one year from the date hereof.

It is my determination that the petitioner at the present time is permanently disabled to the extent of twenty-five one hundredths, and that said -permanent- disability .began to run on July 16th, 1924.

It is on this 6th day of July, 1925, ordered that the respondent pay to petitioner one hnndred and twenty weeks at the rate of $17 per week for permanent disability, to be computed from July 15tb, 1924, and that all payments made to petitioner since that day shall be credited to said respondent on account of said permanent disability. It is also ordered that the petitioner pay $50 to his attorney for his services.

Harry J. Go as, Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    JOHN MAGOLDA, PETITIONER, v. CENTRAL ICE AND COLD STORAGE COMPANY, RESPONDENT.
    Appendicitis. — Illness Not Shown to Result From Injury.
    On determination of facts and rule for judgment.
   And now, to wit, August 12th, 1925, the above cause coming up for hearing on claimant’s petition for compensation and respondents answer thereto, at Millville, New Jersey, due notice of said hearing having been given to the parties, and after the taking of testimony on behalf of both parties, it appeared that claimant was seized with an attack of appendicitis while handling a case of fruit in the course of his employment, that the relation between the claimant’s disability and the alleged injury was not established beyond a possibility, and, whereas the law requires such relationship be shown to be probable, T am therefore obliged to, and do thereby, dismiss the claimant’s petition, and render judgment in favor of the respondent.

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    DORA SCHURBY, PETITIONER, v. MARY SATSKY AND MEYER SATSKY, RESPONDENTS.
    Domestic Employment — Testimony Warranting Compensation Lacking.
   This matter having come on to be heard before Lucille M, Jessurun, attorney of petitioner, and Jacob W. Silverman, attorney for respondents, before me on the 13th day of July, 1925, on petition and answer, at the office of the commissioner of Newark, New Jersey, the evidence having been heard and ,the matter having been duly considered.

The .evidence adduced by petitioner, to wit, her own testimony, which was followed by her own physician, Dr. Leo Y. Granger, is greatly inconsistent, conflicting and irreconcilable, and therefore unworthy of any, credit or belief. Assuming that an accident did happen on the 25th day of February, 1925, while petitioner, Dora Schurby, was regularly employed as a general -houseworker by the respondents, Mary Satsky and Meyer Satsky,. within the scope of such employment, there was no medical testimony adduced by petitioner which would warrant a finding for -temporary compensation. The entire facts adduced by petitioner and her witness, before me, are-insufficient to substantiate a finding in her behalf.

It is therefore, on this 13th day of July, 1925, upon motion of -Jacob W. Silverman, attorney of respondents, ordered, and T do adjudicate, that the petitioner is without right of - recovery in this court, and that her petition he and the same is hereby dismissed.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    SAMUEL H. CROSBY, PETITIONER, v. BRITISH-AMERICAN METALS COMPANY, RESPONDENT.
    Voluntary Nonsuit — Subsequent Petition Filed After Expiration of Statutory Limit of Time — Petition Dismissed.
    Ou determination and dismissal.
   A formal claim petition having been filed in the above matter, on April 30th, 1925, asking for compensation under the terms-of the Compensation law of this state because of ail accident that was alleged to have happened' on January 24th, 1924, and an answer having been duly filed, the case came on for a hearing before me in Elizabeth, on June 18th, on motion of the attorney for the respondent to dismiss the ease as being barred by the statute of limitations. The petitioner was represented by Attorney William Y. Herer, and ilie respondent by Attorney Eichard W. Baker.

It developed that a formal petition in this case had previously been filed and a hearing held on the same before me in Plainfield, on November 11th, at. which time, at the end of the petitioner’s ease, the attorney for the petitioner asked for a voluntary nonsuit, which was granted. Accordingly, the attorney for the petitioner now argues that the statute of limitations does not apply because a formal claim petition had been filed within one year after the alleged accident. The attorney for the respondent argued that as a voluntary non-suit was taken in the case of: the first petition that was filed, the case reverted to its original status just as though no petition had ever been filed. Accordingly, under the authority of the case of DeLucca v. Vezzetti, 3 N. J. Mis. R. 387, the case is hereby ordered dismissed, as the petition was not filed within one year after the accident and, accordingly, is barred by the statute of limitations.

Charles E. Corbin, Deputy Commissioner.


author: Per Curiam.

text:
    FRANK B. EATON AND LILLIAN EATON, RELATORS, v. VILLAGE OF SOUTH ORANGE AND IRA T. REDFERN, BUILDING INSPECTOR OF THE VILLAGE OF SOUTH ORANGE, DEFENDANTS.
    Submitted June 9, 1925
    Decided October 1, 1925.
    Zoning — Retail Stores in Restricted Territory — Inadequacy of Fire Protection — Building Line at Specified Distance From Street — First Point Determined in Ignaciunas v. Risley, the Second by Ingersol! v. South Orange — Nothing Found in Circumstances in Present Case Regarding Building Line Affording a Valid Exercise of Police Power — Peremptory Writ of Mandamus Awarded With Provisions For Moulding Pleadings in Case of Appeal.
    On rule to show cause why a writ of mandamus should not issue.
    Before Justices Then chard, Katzenbach and Lloyd.
    For the relators, Howe & Davis (Edward L. Davis, of counsel).
    For the defendants, Bilcer t(5 Biker (Thomas E. Fitzsimmons, of counsel).
   Per Curiam.

The relators, Frank B. Eaton and Lillian Eaton, his wife, are the owners of a tract of land at the comer of South Orange avenue and Prospect street, in the village of South Orange. The frontage on South Orange avenue is about one hundred and twenty-five feet, and on Prospect' street about one hundred and ninety-three feet, but the comer of the street is not a right angle, but an acute angle of about sixty-five degrees, so that the southerly side line of the lot is only sixty feet and the westerly side line one hundred and forty-seven feet.

The relators desire to erect upon this lot a two-story building having fourteen stores and one apartment for the use of a janitor on the first floor and nine apartments on the second floor, at a cost of approximately $75,000.

On March 28th, 1925, application was made for a permit for the erection of such building, which application was accompanied by plans and specifications, and a. tender was made of the legal fee. The plans and specifications complied with the building code of South Orange, and have been approved by the tenement house commission of Yew Jersey.

The permit was refused hv the building inspector on the ground that while the zoning ordinance in force in South Orange permitted the erection of an apartment-house on this property, it did not permit the erection of stores, and it also required that the front line of the building would have to be set back twenty-five feet from the property line on South Orange avenue and fifteen feet from the property line on Prospect street. Prospect street at this point is fifty feet wide, and South Orange avenue is eighty feet wide.

The legal question presented is whether the restriction of the use of the property by the relators imposed upon them by the terms of the ordinance, without making compensation to them, is valid.

So far as the right to forbid the erection of retail stores is concerned, the question is settled by the cáse of Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 2 N. J. Adr. R. 852. With respect to the contention that the restriction is justified bv the fact ( assuming it to be a fact for present purposes) “that the present fire department' is inadequate to take care of apartment-houses of the type proposed,” a sufficient answer is found in the decision of this court in Ingersoll v. South Orange. 3 N. J. Mis. R. 335.

The remaining question is whether or not the provision for a set back from the street or property line is a valid exercise of the police power. That provision is;

“In residence ‘A’ and residence cO’ districts, no part of a building shall be higher above the curb level than the distance it sets back from the street line of tire street on which it faces, and the front yard set-back distance to the main front wall shall not be less than twenty-five feet, except that on a corner lot the sot-back distance from one street line may be reduced to not less than fifteen feet.”

We think that there is nothing in the circumstances of the present-case as presented from which we would be justified in finding any valid exercise of the police p>ower in the exactment of the provision of the ordinance in question.

Such we think to be the result of a consideration of the principles laid down in the case of Passaic v. Paterson Bill Posting Co., 72 N. J. L. 285, -which held that a city ordinance requiring that sign or bill boards shall be constructed not less than ten feet from the street line is a regulation not reasonably necessary for the public safety, and cannot be justified as an exercise of the police power.

The fact that there is “considerable traffic,” “automobile and otherwise,” at the intersection of the streets on which the property in question fronts does not justify the restriction in question.

.. A peremptory writ of ntandamus will be awarded. In case an appeal is desired an application 'will be entertained for an order for the moulding of the pleadings.


author: Pee Curiam.

text:
    FRANK H. SONNTAG, RELATOR, v. GEORGE SCHMIDT, BUILDING SUPERINTENDENT OF THE TOWN OF IRVINGTON; JOSEPH DIEBOLD, ASSISTANT BUILDING SUPERINTENDENT OF THE TOWN OF IRVINGTON, AND THE TOWN OF IRVINGTON, DEFENDANTS.
    Submitted June 9, 1925
    Decided October 1, 1925.
    Zoning — Small Addition to Garage In Rear of Residence For Bottling Milk — Facts Do Not Indicate a Situation Injurious to Health as Defendant Claims, and Case Clearly Within Ignaciunas v. Risley — Peremptory Writ, With Provisions For Moulding Pleadings in Event of Appeal.
    On rule to show cause why mandamus should not issue.
    Before Justices Trenohard, Katzenbach and Lloyij.
    For the relator, Frederic ¡Stoddard.

    For the defendants, Citarles If. Stewart.

   Pee Curiam.

This matter comes before the court on a rule to show cause why a writ of mandamus should not issue directing the defendants to issue a building permit to the relator for the erection of an addition to an existing building on the relator’s property on Union avenue, in,the town, of Irvington, which permit was refused on the ground that the use contemplated for the building is a violation of the local zoning ordinance restricting the properly in question against business buildings. By stipulation and otherwise, it appears that the relator is the owner of a lot on the east side of Union avenue, in the town of Irvington, about ninety-eight feet north of Mt. Yernon avenue, having a frontage of about forty-eight feet on Union avenue and a depth of about two hundred and eightv-five feet, on which is situate the house where relator lives. In the rear of his house is a garage building to which relator proposed to erect an addition five feet by seven feet to be used by him to bottle milk and to wash milk bottles. The local zoning ordinance, places the premises in a “B” residence zone. Belator applied for a permit to erect the addition to the assistant building superintendent of the town of Irvington on January 9th, 1925. The application was in proper form, the fees were tendered and the same complied in all respects with the building code, but was rejected and a permit refused solely on account of the zoning ordinance. This refusal we think was unlawful, under the authority of Ignaciunas v. Risley, 98 N. J. L. 712; affirmed, 2 N. J. Adv. R. 853.

The contention now is that the bottling of milk and washing of milk bottles on the premises is injurious to the health, safety or general welfare of the public of the town of Irving-ton. With respect to this contention it is worthy of remark that the assistant building superintendent (the official who dealt with this application and, admittedly, had authority to deal with it) testified, in effect, that he did not refuse it because he regarded the business injurious to health, safety or general welfare, and, in fact, he considered that it was not. He refused it because the ordinance zoned the premises against, business.

'Looking at the evidence laid before us we see nothing to establish the contention of the defendants, and we certainly cannot assume that the business in question, if lawfully conducted, will be injurious to health, safety or general welfare.

A peremptory writ of mandamus will be awarded. If defendants desire to appeal, an application for an order for the moulding of the pleadings will be entertained.


text:
    JULIUS M. KAYCOFF, RELATOR, v. WILLIAM T. KALTENBACH, BUILDING INSPECTOR OF THE CITY OF ELIZABETH, DEFENDANT.
    Submitted June 9, 1925
    Decided October 1, 1925.
    Zoning — Stores in Residence District- — Case Within Rule in Ignaciunasi v. Risley- — -Defendant’s Contention That Since Relator Was Refused Permission by Board of Adjustment, After Having Been Refused by Inspector, He Had Lost His Remedy by Mandamus, Unsound — Obvious Purpose of Creation of Board Was to Make Special Exceptions and Present Proceeding is Not on the Theory That a Special Exception is Desirable, But That the Attempted Restriction of Relator’s Property is Unlawful.
    On rule to show cause why mandamus should not issue.
    Before Justices Trenchard, Katzenbach and Lloyd.
    For the relator, Michael H. Feldman.

    For the defendant, Joseph, T. Hague.

   Per Curiam.

This rule directs the building Lnsjiector of the city of Elizabeth to shew cause why a writ of mandamus should not issue commending him to issue a permit to relator for the erection of a two and one-lialf story frame dwelling for stores and dwellings at the corner of Summer street and Grier avenue, in Elizabeth.

The return discloses that the relator, being the owner of a plot of land at the southerly corner of Summer street and Grier avenue, and known on the tax maps as Nos. 722, 724, 726, 728 Summer street, Elizabeth, New Jersey, desiring to construct a building thereon, prepared plans disclosing a two and one-half story frame building, of which the first or ground floor was to be occupied by two stores and rooms in the rear thereof, and the second floor laid out as living quarters for two tenants; that the sole reason the permit was refused was because the city of Elizabeth has adopted a zoning-ordinance, under which the premises of the relator are placed in “Residence District E,” in which district stores are not permitted. There being nothing before the court to show the building of the character contemplated by the relator to be against public health, safety or public welfare, the ease falls squarely within the principle laid down in Ignaciunas v. Risley, 98 N. J. L. 712 ; affirmed, 2 N. J. Adv. R. 853; Holding Corp. v. Hague, 2 N. J. Mis. R. 75; Plaza Apartment v. Hague, Id. 76; Huppert v. Hague, Id. 348; Realty and Construction Co. v. Jelleme, Id 356; While v. Bower, Id. 357; King v. Favier, Id. 358; Hench v. East Orange, Id. 510; State v. Bigelow, Id. 711.

Eut the defendant contends that because the relator, after the inspector’s refusal, “petitioned” the hoard of adjustment, established in the city pursuant to chapter 146 of laws of 1924, and was again refused permission, he has lost his remedy by mandamus, which he is now pursuing. We think not. The obvious purpose of the act of 1924 was to confer upon the board of adjustment power to, “in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to Ihe terms of the ordinance,” &c.

The present proceeding proceeds,-not upon the theory that a special exception is desirable and justified, but upon the assumption of the position, which is well taken, that the attempted restriction affecting relator’s property'is unlawful.

A writ of peremptory mandamus will be awarded. If an appeal is desired, an application for an order to mould the pleadings will be entertained. •


text:
    JACOB C. REISS, PLAINTIFF-APPELLEE, v. L. BAMBERGER & COMPANY, DEFENDANT-APPELLANT.
    Decided October 3, 1925.
    On appeal from taxation of costs.
    Before Justices Teen chard and Lloyd.
    For the appellant, Biker & Biker.

    For the defendant, Joseph- C. Paul.

   Per Curiam.

An examination of the taxation of costs as directed by Mr. Justice Minturn convinces us that the costs were properly taxed, and the appeal is accordingly dismissed.


author: Per Curia at.

text:
    WARREN VANNOTE AND WILLIAM J. HICKS, PLAINTIFFS, v. THE NEW YORK AND LONG BRANCH RAILROAD COMPANY, BODY CORPORATE, AND THE PENNSYLVANIA RAILROAD COMPANY, BODY CORPORATE, DEFENDANTS.
    Submitted May 15, 1925
    Decided October 6, 1925.
    Negligence — Truck Collision With Railroad Train — Engineer, Fireman, Flagman, if There Was One, Were All Emergency Men — Accident During Heavy Rain — Dispute Whether Flagman Performed His Duty — All Jury Questions. — Contributory Negligence Dependent Upon Whether Flagman Was At •Crossing — Verdict Held Not Against Weight of Evidence, Nor Were Damages Excessive.
    On defendants’ rule to show cause.

      Before Justices Parker, Mestorn and Black.
    For the plaintiffs, Maja Leon Berry.

    For the defendants, John 8. Applegate. & Son.

   Per Curia at.

The two plaintiffs were partners in a local express business and were riding together in a Ford truck in a very heavy rain across a crossing at Point Pleasant, which was normally protected by a flagman. One of the disputes of fact in the case is whether the flagman was there at the time. A curious featuré of the ease is that the engine that struck the plaintiffs was manned by an extra engineer and fireman, and the witness produced as the flagman was, admittedly, an emergency flagman whose usual occupation was track laborer, and who spoke and understood English, very imperfectly. The accident occurred during a very heavy rain, and contributory negligence was charged as against both plaintiffs. There was a verdict against both defendants in favor of VanNote for $10,000, and in favor of the plaintiff Hicks for $1,000. The truck was demolished, but no recovery was had for that by instruction of the court.

Some half a dozen reasons are assigned, but the only reasons argued are that the verdicts were against the weight of evidence, and that the damages were excessive. AAre have read'the case with care and feel that the verdict should not be set aside as against the weight of evidence. As to the flagman, of course, the testimony was in conflict, and we are not unmindful of his statement that he stood on the crossing and held out a stop sign on the end of a pole, and that this was broken by the plaintiffs5 car in passing. Such was his testimony, but there was considerable testimony directly to the contrary, and the jury were plainly entitled to find that he was not where he should have been at the time.the accident occurred. As to the statutory signals, concededly, the whistle was not sounded according to the statute, and, as to the bell, several of the defendants’ own witnesses say they did not hear it. This question of ringing the bell was eminently for the jury, and we are not prepared to say that they disregarded the evidence in their finding.

The question of contributory negligence is dependent principally upon the question whether the flagman was on the crossing. If he was not on the crossing, then, under the statute, neither plaintiff could halve been nonsuited for contributory negligence. In any event, the matter was for the jury, and if we áre unable to say that the jury disregarded the evidence as to whether the flagman was on the crossing or not, we are equally unable to say that the plaintiff was so clearly guilty of contributory negligence that this rule should be made absolute.

Nor do we think the damages were so excessive as to call for action in this court. The plaintiff VanNote was very severely injured, and it is, apparently, conceded that he will not he able to work again. The testimony indicates that he was making $2,500 a year at the time. We do not think the verdict was excessive as to him. Hicks was painfully injured and disabled for several months. The verdict in his favor vas $1,000. and we are unable to say that this was excessive.

The rule to show cause will be discharged.


author: Per Ctjriam.

text:
    PHILLIP LYNN, PLAINTIFF-RESPONDENT, v. BENJAMIN JACOBS, DEFENDANT-APPELLANT.
    Submitted May term, 1925
    Decided October 6, 1925.
    Landlord and Tenant — Alleged Error in Failure of Court to Find That There Was An Eviction or a Surrender of Lease— Held, That the Trial Judge Found According to Evidence.
    On appeal.
    .Before Justices Parker, Minturn and Black.
    Por the appellant, Carr & Carroll.

    Por the respondent, Carl Kisselman.

   Per Ctjriam.

The suit in this case was brought to recover three months’ rent, due under a written lease 'dated September 1st, 1921, at $80 per month. The trial resulted in a judgment for the plaintiff for $240. The defendant filed the following1 specification of the determination with which he is dissatisfied in point of law, 'viz.: Upon the facts presented, the court should have found, as a matter of law, that there was either (a) an eviction of the defendant by the plaintiff; or (b) a surrender of the lease, and should have found in favor of .the defendant, and given judgment accordingly. We think the trial judge found according to the evidence, and the judgment should be affirmed, with costs.