author: Mathews, J.

text:
    First Judicial District Court of Burlington County.
    HILL CONSTRUCTION COMPANY, A CORPORATION, PLAINTIFF, v. CENTRAL RAILROAD COMPANY OF NEW JERSEY, A CORPORATION, DEFENDANT.
    Decided November 18, 1932.
   Mathews, J.

This is an action for damages to the plaintiff’s property, consisting of a truck, concrete mixer and pump, resulting from what it alleges to be the negligence of the defendant railroad.

The case appears to involve a question which has not been passed upon directly by the courts of this state and therefore may well merit a somewhat extended discussion.

The facts are practically undisputed, and certainly are insofar as they are material to a decision of the issues in the case.

On December 36th, 1930, the plaintiff, Hill Construction Company, a corporation, was the owner of a truck, and of a concrete mixer and pump which it was transporting thereon. The height of this load on the truck over all was eleven feet eight inches. The truck, with its accompanying load, was being driven by an employe of the plaintiff in a northerly direction upon a highway of this state leading to Washington in the township of Hampton, Hunterdon county, and was approaching a certain bridge over the highway, bearing the tracks of the defendant railroad, which the defendant had erected some years before and was still maintaining. Approaching this bridge, or overpass of the railroad, the highway is on a slight down grade and on the day in question there was some slush upon the roadway.

The clearance between the roadway surface and the bottom of the defendant’s bridge at the time of. the events herein set forth was eleven feet eight and one-half inches on the extreme left side against the curb, as the truck approached it; eleven feet eight inches on the extreme right, and eleven feet five and one-half inches in the center. The first iron girder or beam of the bridge as the truck approached had a greater clearance than the second. Plaintiff’s truck cleared this first girder or beam but the top of the load struck the second, knocking off the concrete mixer and injuring it and the pump and the truck.

It was stipulated that the damage to the plaintiff’s property resulting from this collision was $304.08, and that this is the amount the plaintiff is entitled to recover if it is entitled to recover anything.

The defendant railroad company constructed the bridge or overpass in question about the year 1910 according to plans and specifications approved by resolution of the borough of Hampton, March 17th, 1910, which plans and specifications called for a minimum clearance of twelve feet, and so far as this case is concerned the bridge was constructed with that minimum clearance. Whether the difference in clearance at the time of the happening of the events in this case was caused by a filling in of the highway or a settling of the bridge, which latter seems highly improbable, or what the cause was, is not shown in the case, nor do I think it material to the issues involved.

The negligence which the plaintiff alleges on the part of the defendant is as follows:

* * The said defendant maintained said railroad bridge or underpass over the aforesaid highway at the aforesaid place, in a negligent and careless manner, in that said bridge or underpass did not provide a legal and proper clearanee, and in that there was no notice or warning to plaintiff or its agents, or others using said highway, of the fact that the said bridge or underpass was not of a sufficient height or clearance.”

It occurs to me that perhaps the “underpass” mentioned was really more correctly an “overpass,” but its use in conjunction with the word “bridge” indicates clearly that it is the bridge to which the plaintiff refers, and it was so treated by both parties and is so treated by the court.

That part of the allegation of negligence which refers to the maintenance of the bridge by not providing a legal and proper clearance I take it has. been abandoned by the plaintiff, and I do not believe there is any merit to it in any event.

The real question in the case is whether or not under the circumstances the defendant owed plaintiff a duty to have put and maintained upon said bridge markings of a character provided by law for “obstructions.”

The Motor Vehicle act of this state provides, section 21, subsection 4 (1 Cum. Supp. Comp. Stat. (1911-1924), p. 1998, §§ 135-70), as follows:

“No commercial motor vehicle, trailer, semi-trailer or tractor shall be operated on any highway in this state, the outside width of which is more than ninety-six inches, or the extreme over-length of which exceeds twenty-eight feet * * * nor shall the height of such vehicle exceed twelve and one-half feet.”

Section 42 of the Traffic act (Cum. Supp. Comp. Stat. (1925-1930), p. 1567, §§ 179-71SR (1242), being Pamph. L. 1928, ch. 281, p. 757), provides as follows:

“Obstructions—All obstructions shall be marked clearly with black and white as follows:

(a) Alternate lines three to six inches wide with a slope of forty-five degrees.

(b) Checker board squares six to twelve inches on a side.”

I take it that the meaning of this provision is that obstructions may be marked in either of the two manners. It is admitted that the defendant’s bridge contained no such markings nor any markings or indications -whatsoever that it was an obstruction nor as to the clearance of the bridge over the roadway.

Plaintiff’s contention is that this bridge under the circumstances was what has been sometimes termed a “legalized” obstruction. That such obstructions are recognized in this state is recognized by Lorentz v. Public Service Railway Co., 103 N. J. L. 104; 134 Atl. Rep. 818, and the opinion contains an interesting and enlightening discussion of the subject generally. The ease, as well as others in the state, indicates that such legalized obstructions when unlawfully maintained or used may constitute public nuisances. It is to be noted, also, that in this case the negligence alleged did not contain the element which the plaintiff has injected into this case, i. e., the failure to mark the obstruction in accordance with the statute, and in fact probably could not have done so, as the case was decided in 1920. It does, however, cite a number of exceptions covered by specific cases.

In Wood Co. v. Balsam, 100 N. J. L. 275; 126 Atl. Rep. 480, the facts were somevdiat similar but not parallel to this case. There the defendant maintained a lire escape which was not only in accordance with municipal authority but was mandatory under the ordinance. Plaintiff’s truck was injured by driving under it, in a manner similar to the circumstances of the present case. It is also interesting to note the opinion of Mr. Justice Lloyd saying: “Nor is there here alleged any element of negligence; the sole contention being that the construction itself constituted a private nuisance for which the defendant would be liable.”

In Lorentz v. Public Service Railway Co., supra, the court further says:

“Structures of this kind authorized by law and used to facilitate public travel, although they are physical obstructions to drivers of ordinary vehicles, and perhaps to pedestrians, are nevertheless not nuisances and the public must take notice of them.”

On the other hand the street and every part of it by force of the common law is so far dedicated to the public that any act of obstruction that unnecessarily incommodes or impedes its lawful use by the public, is a nuisance. Durant v. Palmer, 29 N. J. L. 544; Lorentz v. Public Service Railway Co., supra; Record v. Pennsylvania Railroad Co., 76 N. J. L. 800; 72 Atl. Rep. 62.

It would seem, then, that a user of a public highway has a right to assume that it is clear from unlawful obstructions but is bound to take notice of a legalized obstruction when lawfully maintained and used.

Defendant contends that, as it is incorporated under the Eailroad act, the Motor Vehicle act and the Traffic act have no application to it whatsoever, and further that at the time the bridge was constructed it was constructed in entire accordance with the law as it then existed, with the plans and specifications and with the ordinance of the township. These can be considered to be facts, with the exception of the application of the two acts referred to to the defendant company. Certainly it can be conceded that unless there was a clearly expressed provision of law, subject to no other interpretation, making it mandatory upon the defendant to raise its bridges every time the legislature changed the motor vehicle or traffic laws, there would be no such duty placed upon it.

Now, the provision of the motor vehicle act above quoted goes no further in terms than to provide a maximum height of twelve and one-half feet for vehicles such as that of the plaintiff. There has been no provision brought to our attention which in specific terms deals with the height of legal bridges across highways. But it seems perfectly obvious that if the law permits a vehicle and load twelve and one-half feet high to be operated over the highways of this state, there can be but one sensible conclusion reached, and that is that the plaintiff had the legal right to operate its truck with such a load on the day in question without having the highway obstructed in any unlawful manner as to prevent its passage. Surely a highway has three dimensions—length, width and height—and an obstruction of the height or part thereof is as much an obstruction as that of the width or part thereof.

Defendant’s contention that it is immune from the operation of all other laws of the state save the Eailroad act, under W'hich it is chartered, I conceive to be entirely unsound. No authority has been cited to support it, nor does common sense sustain it. All the acts referred to were passed by the same authority, the legislature of the State of New Jersey, with no inference in any of them that the defendant was to occupy an enviable position of immunity from the operation of laws binding upon all other persons and corporations.

Defendant further contends that this provision of the law in the Traffic act is intended only to apply to “obstructions which impede all travel on the highway and have no regard for special clearances.” This assumes that one can lawfully block any part of a highway less than the whole and be under no duty to mark the partial obstruction as an obstruction; in other words, one could maintain a chain or cable across the highway at any distance from the surface of the road up to twelve and one-half feet and still be under no duty to mark it as an obstruction if it were otherwise lawful for the chain or cable to be there. As stated before, I cannot conceive a highway of only two dimensions; and if there were no statutory provision limiting the height of loads, the question on this point might well be whether the barrier were one greater or less than a reasonable distance from the surface of the roadway and thereby either creating or not creating an “obstruction” to the highway.

The provision of the Traffic act requiring “obstructions” to be marked in a certain way must apply to so-called “legalized” obstructions. It seems clear that the legislature had no intention of providing for the proper marking of obstructions which have absolutely no right to exist. Where could there be logic in having the legislature say in effect, “if you insist upon violating the law and maintaining a nuisance which you have no right to maintain in any event, you must do it in a certain way, i. e., by painting black and white lines or checker board squares upon it?” Certainly it would be none the less an unlawful obstruction or nuisance and the provision could have no other effect than to perhaps charge a lawful user of a highway with contributory negligence in colliding with an obstruction which had no lawful right to exist.

It seems plain, therefore, that this provision applies to lawful or “legalized” obstructions. In holding that the duty to so mark defendant’s bridge, or such part of it as was within twelve and one-half feet of the surface of the roadway, in the manner provided by the statute certainly places no great hardship upon a defendant which has constructed a lawful bridge over a highway prior to the passage of the Traffic act. It would seem entirely consistent with the results attempted to be secured by that legislation with due consideration to the defendant’s rights. A bucket of paint and a few hours labor would comply with the law. It also seems entirely consistent with the adjudicated cases of this state.

The defendant saw fit not to go to the trouble of marking this bridge and relied upon immunity from the provisions of the Traffic act and Motor Vehicle acts by reason of being a railroad. But there is no such immunity, so far as I can find.

I, therefore, have come to the conclusion that after the passage of the provisions of the Motor Vehicle act and Traffic act above cited, there arose a duty upon the part of the defendant to lawful users of the highway to mark its “legalized” obstruction, or such parts of the bridge as constituted a “legalized” obstruction in the manner provided by the statute or in -some manner which would have given warning to- the plaintiff that the overpass did not have sufficient clearance to permit the passage of a load of legal height; that it was not such a “legalized” obstruction which, under the circumstances of the case and the existing provisions of the law the plaintiff was bound to notice and that the plaintiff had a general right to rely on the fact that the bridge either was of proper height or, if not, would have been so marked, and that there were no circumstances shown which took away the right of the plaintiff’s agent to such reliance; that the failure to so mark the obstruction was negligence on the part of the defendant which proximately resulted in the damage to the plaintiff and that there was no contributory negligence on the part of the plaintiff which would bar its recovery.

Judgment will therefore be entered in favor of the plaintiff and against the defendant in the sum of $304.08, with costs.


source: Caselaw Access Project

author: Sooy, C. C. J.

license: Public Domain

text:
    THOMAS FORNATARO, PLAINTIFF, v. THE ATLANTIC COAST BUILDING AND LOAN ASSOCIATION, DEFENDANT. LOUIS ROMANO, PLAINTIFF, v. ATLANTIC COAST BUILDING AND LOAN ASSOCIATION, DEFENDANT.
    Decided November 28, 1932.
    For the motion, Endicott ■& Endicott (John Warren, on the brief).
    Contra, Bolle ■& Tripician.

   Sooy, C. C. J.

These cases are before me on motions to strike the complaints on the ground that they do not set forth a cause of action under chapter 102. Pamph. L. 1932.

The facts set forth in the complaints are that (a) defendant is a building and loan association under the laws of New Jersey; (b) that on December 31.st, 1925, plaintiff Bomano became a member and that on June 7th, 1923, plaintiff Fornataro became a member; (c) that thereafter both plaintiffs made various deposits as such members; (d) that thereafter defendant association credited declared dividends in favor of plaintiffs; (e) that both plaintiffs, on January <tth, 1932, gave to defendant notice of withdrawal; (f) that defendant made various payments on account of the withdrawal value of plaintiffs’ shares; that on July 5th, 1932 (more than six months after notice of withdrawal had been served) plaintiffs made written demand on defendant for the balance then unpaid, which demand was refused by defendant.

It will be observed that both plaintiffs became members of defendant association prior to the Building Loan act as amended in 1932 and during the time that building loan associations were regulated by the act of 1925.

It will also be noticed that the withdrawal notices were given prior to the time when the amendment of 1932 became effective but that the six-month period did not expire until after the abendment had gone into effect, the effective date of the amendment being April of 1932.

Plaintiffs contend that their rights and defendant’s obligations are controlled by the act of 1925 while defendant contends that the amendment of 1932 controls.

Pamph. L. 1925, ch. 65, ¶ 52, p. 212, provides as follows:

“Payment of Withdrawals.

Withdrawals from any such association shall be paid in the order in which the notices thereof shall have been received, but no more than one-half the receipts of any one month shall be required to be used for the payment of withdrawal claims, without the consent of the board of directors, until the oldest of such claims then unpaid shall have been on file for a period of six months; but in no case shall payment be postponed for a period longer than six months from the date of such notice, and any member who has given the said notice may sue for and recover the withdrawal value of his shares in any such association in any court of competent jurisdiction, if the same is not paid within six months from the date of giving of said notice of withdrawal.”

This provision of the statute remained unchanged until 1932 when the legislature passed an amendment thereof which amendment constitutes chapter 102 (Pamph. L. 1932), and reads as follows:

“Withdrawals from any such association shall be paid in the order in which the notices thereof shall have been received, but not more than one-half of the total receipts of any such association in any month, as income on investments authorized by section 26 hereof, dues on shares pledged with such association to secure loans authorized by paragraph 2 and 5 of section 26 hereof and repayment of loans authorized by paragraph 2 and S of section 26 hereof shall be required to be used for the payment of withdrawals without the consent of the board of directors; provided, however, that if, in any one month the funds of the association required to be available for any such purpose by its boa/rd of directors, are at any time insufficient for the payment of all withdrawals which have been requested, then the right of any withdrawing member to priority of payment of the withdrawal value of his shares in the aforesaid order, shall be only to the extent of $500 in any one month and there is then a balance of such funds available for the payment of Avithdrawals then said order of priority of payment, to the extent of $500 shall continue to apply until such balance is exhausted; and no withdrawals shall be paid if the funds available for the payment of matured shares are insufficient to pay all matured shares, the payment of which has been requested within thirty days after maturity; and members who have thus requested payment of their matured shares shall have a right to such payment prior to the rights of members who have requested payment of the withdrawal value of their shares. A member who has filed a notice or request for withdrawal shall not have the right to sue any snch association to recover the withdrawal value of his shares or snch part thereof as may not be paid, so long as the funds in the treasury of such association are applied as required herein.”

An analysis of these statutory provisions discloses the following changes made by the amendment:

Prior to the amendment it was provided that withdrawals should be paid in the order in which the notices therefor were received—the amendment makes the same provision as to priority hut limits priority rights to payment out of funds allocated by the statute for that purpose.

Prior to the amendment, not more than one-half the receipts in any one month could be required to be used for payment of withdrawals without the consent of the board of directors until the oldest had been on file for six months, and thereafter all receipts, were required to be used. Under the amendment the funds required to be used for the payment of withdrawals are limited to one-half of the receipts in any month on income on investments authorized by section 26 of the act, plus dues on shares pledged to secure loans, authorized by paragraphs 2 and 5 of said section, plus payment of loans authorized by said paragraph and section. The right of the board of directors to use receipts in excess of those required to he used for the payment of withdrawals still continues.

Prior to the amendment, section 62 made no reference to matured shares, while the amendment provides that withdrawals shall not be paid if the funds available for the payment of matured shares are insufficient to pay all matured shares, the payment of which have been requested within prescribed times.

The act prior to the amendment gave a right of action to a withdrawing member whose withdrawal was not paid within six months while the amendment prohibits a .suit so long as the funds in the treasury of the association are applied as required by the statute.

Plaintiffs contend that under the act of 1925, they had certain vested rights as withdrawing members and that those rights may not be taken away by a retrospective construction of the 1932 amendment.

The first question presenting itself for solution is as to the status of plaintiffs as of January 4th, 1932, i. e., the status of a member having given a notice of withdrawal.

A careful research of the decisions on this point reveals quite a contrariety of judicial opinion.

The earlier decisions seem to have quite generally followed the ruling of the Pennsylvania courts in the case of United States Building and Loan v. Silverman, 85 Pa. St. 394, decided in 1877, which held that the status of a withdrawing member is changed from that of a member to that of a general creditor and it is this doctrine which plaintiffs contend for.

The second rule is that adopted by the Minnesota courts in Heinbokel v. National S. L. and B. L. Association, 58 Minn. 340; 25 L. R. A. 215, decided in 1894, which is that a withdrawing member, whose withdrawal notice has matured, does not have a right of action until the association has in its treasury funds, available for the purpose of paying his withdrawal. In later cases this rule has been modified so that the so-called second rule may be said to be that set forth in Synott v. Iron Belt Building and Loan Association, 89 Fed. Rep. 292, i. e., that upon the maturity of the withdrawal notice the status of a member becomes that of a creditor, the amount of the debt fixed but that the debt is not payable until there are funds in the treasury to pay it after the payment of prior withdrawals in the order of their filing; in other words, the status of the withdrawing member is that of a gmsi-creditor but not such a status as to give him a preference over the other and remaining members of the association upon distribution of the assets.

The following cases are in line with this second rule: Pawlick v. Homestead Loan Association, 37 N. Y. Supp. 164; Eastern Building Loan v. Snyder, 37 S. E. Rep. 298; Miers v. Columbia Building Loan, 157 Fed. Rep. 940; Engelhardt v. Fifth Ward Permanent Dime Savings and Loan Association, 148 N. Y. 281; 35 L. R. A. 289, and many other cases cited in defendant’s brief.

The third rule and the one for which defendant contends, is that upon the maturity of the withdrawal notice, membership continues and that no creditor rights are then attained by the withdrawing member unless and until the association has breached the membership contract by failing to pay withdrawals according to- the statute. I will discuss this so-called third rule hereinafter.

The first rule (United States Building Loan v. Silverman, supra) has been repudiated by the courts of Pennsylvania in later cases in that state and is now stated to be the minority rule. 9 C. J., § 39, ¶ 939.

The Pennsylvania courts, in the case of Stone v. New Schiller Building Loan, 153 Atl. Rep. 748, decided January 5th, 1931, distinctly repudiates the basic case of United States Building Loan v. Silverman, supra, and I am convinced that it is not the rule to be followed herein even though it may be said that there are cases in New Jersey which may be construed to be in accord therewith. These cases were not dealing with any legislative act in any way similar to the amended act as contained in Pamph. L. 1932, ch. 102.

The second rule, that a withdrawing member has a quasi-creditor status, it would seem to me, would be the true rale, if I had before me for consideration the act of 1925 alone, but that is not the situation. I also have the amendment of 1932 and if plaintiffs’ rights are to be determined by the provisions of the amendment, it seems to me, that the legislature has, by the very terms of the amendment, fixed the rule which must be followed by the courts of this state and that rule is that plaintiffs, as withdrawing members, have no creditor status until the defendant association has breached its contract of membership and the incidental statutory right of withdrawal, i. e., as long as it applies the funds to the payment of withdrawals as is provided by the statute.

However this may be, it is certain that in this day the courts of this state will not follow the first rule, i. e., that upon maturity of the withdrawal notice, such a creditor status is attained as to prevent mutuality and equal participation in profits and losses to result.

In the very recent case of Richman v. Hercules Building and Loan Association (Docket 58, p. 132), Mr. Chief Justice Gfummere repudiated any such rule and he did so in face of the contention that the case of Intisio v. Metropolitan Savings and Loan Association, 68 N. J. L. 588; 53 Atl. Rep. 206, decided in 1902, held to the contrary.

What happened in the Hercules case? Plaintiff had a matured notice and brought suit, defendant, a building and loan association, answered; a motion to strike the answer was made and the chief justice allowed the seventh defense to stand. That defense was, in part, as follows:

1. “The defendant association” is a corporation under cAn act concerning building and loan associations' (Pamph. L. 1903, p. 457), and at all times until 1925, was subject to said act and its amendments and supplements and since March 12th, 1925, has been subject to the act as contained in the Revision of 1925.

2. That “the defendant association is a mutual and cooperative association, all the members of which are equally entitled to participate and share in its assets, in the proportion that each member contributes to the common capital thereof.

3. Plaintiff “has been and still is a member thereof.

4. “Payment of the alleged withdrawal value of the plaintiff's shares as claimed in this suit, would materially reduce the value of the shares of the remaining, continuing and withdrawing members of the defendant association, would give to the plaintiff more than her proportionate share of the assets of the defendant association, would prevent the remaining members of defendant association from equally participating with plaintiff in the distribution of the assets, would give to plaintiff an undue and illegal preference over the members remaining in the association, would deprive said remaining members of their property without due process of law, and would result in an illegal distribution of the assets of defendant association.”

Surely, this ruling by the chief justice is a repudiation of an absolute creditor standing and with nothing before the court, other than the act of 1925, seems to me to be authority for the second rule.

But it is quite apparent that, under the second rule, these motions to strike could not prevail if the act of 1925 controls and not the amendment of 1932, because the right to suit is given by the act of 1925 and the result would be that the defendant would be compelled to answer and set up in .its answer the “seventh defense.”

The result is that the discussion as to the three so-called rules is academic if the 1932 amendment controls other than that even under the act of 1925, plaintiffs come under the second rule.

The amendment of 1932 clearly deprives plaintiffs of a right to sue until the defendant has failed to apply its funds in the payment of withdrawals as therein provided and if that statutory enactment be viewed from an intention to legislate retrospectively, these complaints should be stricken.

Plaintiffs contend that to so construe the amendment would violate their rights under article 4, section 7, paragraph 3, of the constitution of this state and also article 1, section 10, of the constitution of the United States.

What were plaintiffs’ contractual rights?

Any right of withdrawal they had was merely a privilege granted to them by the legislature and such a privilege was in fact granted.

“2. It has, I think, been uniformly held that the right of withdrawal does not exist except as conferred by a by-law or a statute.” Fitzgerald v. State Mutual Building and Loan Association, 76 N. J. Eq. 137; 79 Atl. Rep. 454.

That plaintiffs’ privilege of withdrawal was conferred by statute is apparent.

The first Building and Loan acts were Pamph. L. 1847, p. 172, and Pamph. L. 1849, p. 227, and no attempt was made therein to regulate withdrawal privileges and obligations. In 1899, by Pamph. L. 1899, p. 557, the privilege was granted but nothing done with reference to the method of payment of withdrawals. In other words, the legislature left the parties to their own contracts as to the method, time, &c., of payment. It was under this later act (1899) that the case of Intisio v. Metropolitan Savings and Loan, supra, was decided and it was then held that the contract relations arising from membership in associations organized under that statute could not be constitutionally altered by viewing a subsequent statute in retrospect—but the provisions as to payment, &c., of withdrawals were those in the by-laws of the association and not those fixed by any statute. Thereafter, the legislature, by act of 1903, provided the method, time of payment, &c., and while that statute did not effect prior contracts arising out of by-law provisions, the legislature did take unto itself, for the first time, the matter of the regulation of withdrawals—not only as to the privilege of withdrawal but the manner in which payments should be made, &c. It is true that it left to the courts control of mutuality by “control of executions,” but it took over that which it had theretofore left to the constitution and by-laws of the associations to regulate, i. e., the manner of payment. Prom that time on, every purchaser of shares in a building loan association was given notice that he had a right of withdrawal and that the legislature had fixed the manner of payment and that while building and loan associations could make the same provisions by its by-laws, there was no power so to do if the provisions of the by-laws limited or attempted to transcend those of the legislative acts.

The result was that when plaintiffs became shareholders they knew that the legislature had legislated as to withdrawals and that it had reserved the right and power to further legislate and that their rights with respect to withdrawals were derived from statute and not by way of contract arising out of by-law regulations.

Reserved power of the legislature.

Article 4, section 7, paragraph 2, of the constitution of Hew Jersey, provides: “The legislature shall * * * pass general laws under which corporations may be organized and corporate powers of every nature obtained, subject, nevertheless, to repeal or alteration at the will of the legislature.”

Building and loan associations are, by virtue of section 4 of the Building and Loan act, governed by the provisions of the General Corporation act, and such acts as may be enacted in the future as amendatory thereof or supplemental thereto, except as they may be inconsistent with the Building Loan act. Section 4 of the General Corporation act (2 Comp. Stat., p. 1600), provides:

“The charter of every corporation, or any supplement thereto or amendment thereof, shall be subject to alteration, suspension and repeal, in the discretion of the legislature, and the legislature may at pleasure dissolve any corporation.”

Section 5 of said act (2 Comp. Stat., p. 1601), provides: “This act may be amended or repealed, at the pleasure of the legislature, and every corporation incorporated under this act shall be bound by such amendments; but such amendment or repeal shall not take away or impair any remedy against any such corporation or its officers for any liability which shall have been previously incurred; this act and all amendments thereof shall be a part of the charter of every corporation heretofore or hereafter informed hereunder, except so far as the same are inapplicable or inoperative to the objects of such corporations.”

This reservation of power is called the police power of the state and can only be used for the benefit of the public and be exercsed by the state. Zabriskie v. Hackensack, &c., 18 N. J. Eq. 178, 192.

Surely, it may not be said that under this reservation of power, the legislature was confined to legislation which would only effect those who became shareholders after the act went into effect.

When the amendment of 1932 went into effect the membership of defendant association consisted of shareholders who had been such for from one month to over eleven years and could anything be more clear than that the legislature had the right to regulate withdrawals both as to these members and those yet to become members and that the same law should apply to all?

It would be impossible to conceive of a bookkeeping set-up capable of handling such a .situation as would be created if plaintiff’s contention were to control.

It seems to me that the legislative intent is apparent and no vested right of plaintiffs are violated by giving to the 1932 amendment a retrospective construction. It also seems quite apparent that all the legislature ever guaranteed to plaintiffs as shareholders was that they should have the right of withdrawal and that they should, on withdrawal, be paid sums that were certain and not that thejr should be paid at a certain fixed time irrespective of any change on conditions that might occur in the financial world between the time of their initial membership and the time of their attempt to withdraw.

The legislature, in 1925, gave the shareholder a right to bring suit on a withdrawal notice at the expiration of six months after notice given and left it to the courts to control the execution and plaintiffs knew that, if in the judgment of the legislature the time within which suit could be brought should be changed, that there was reserved in the legislature the power to make the change.

They, plaintiffs, also knew that the purpose of all legislation would be to conserve the mutual interest of all shareholders, the old and the new, and that all legislation, therefore, would, as to some shareholders be from the retrospective aspect.

What the legislature did by the amendment of 1932, it seems to me, was to bolster up the ultimate result, i. e., assured, more nearly, that there would be an ultimate payment of withdrawals without jeopardizing the very life of the association and thereby secured to the member the payment of his withdrawal in such manner that the payment thereof might not destroy mutuality and equal participation in assets and losses.

The reservation in the legislature to repeal and alter existing statutes (the police power) has received the sanction of the courts even when it affected vested rights.

In Union Dry Goods Co. v. Public Service Corp., 248 U. S. 372, Mr. Justice Clark said:

“It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the state from properly exercising such powers—for the general good of the public, though contracts previously entered into between individuals may thereby be affected,” and after citing opinions, he further said:

“These decisions, few from many, to like effect, should suffice to satisfy the most skeptical or belated investigator that the right of private contract must yield to the exigencies of the public welfare when determined in an appropriate manner by the authority of the state.”

The court will take judicial notice of the stress of the financial situation existing at the time the amendment of 1932 was acted upon and with that crisis in the financial world and nation in view, there can be no doubt that in the exercise of its reserved power, the legislature was acting for the welfare of all investors in building and loan. Many of our financial institutions had closed their doors, a panic stricken people had created runs on banks and these institutions had not been able to continue in business, not because, in many instances, they did not have sufficient assets to pay, but because their assets were frozen. Fortunately, building and loan associations had, in the main, weathered the storm, but, even a limited lmoweldge of the character of their investments, the great number of foreclosures and consequent taking over of real estate, makes it apparent that they could not meet all the demands of this panicky public, if they were to be compelled to continue under the act of 1925, so that, in the enactment of the 1932 amendment, the legislature came well within the rule as laid down by Mr. Justice Holmes in Nolle State Bank v. Haskell, 219 U. 8. 104, wherein he said that “police power extends to all great public needs.”

I have been favored with a wealth of authority sustaining the validity of the amendment of 1932 viewed from its retrospective aspect and it seems to me to be so overwhelming as to permit of no other result on these motions, than that the complaints should be stricken and plaintiffs be thereby obliged to refrain from suit until such time as the defendant association fails to apply its funds in the payment of plaintiff’s withdrawal notices as provided by the amendment of 1932. Such will be the order.


author: Lyon, J.

text:
    Middlesex County Court of Common Pleas.
    MALCOLM MacDONALD, PLAINTIFF, v. EMMA BOLL, DEFENDANT.
    Decided November 4, 1932.
    For the plaintiff, Keating & Keating (M. Francis Keating, of counsel).
    For the defendant, Collins Corbin (James B. Emory and James J. Langan, of counsel).
   Lyon, J.

This is a motion to strike from the complaint a claim for damages on account of loss of service and medical expenses. The ground of the motion is that such a claim is for property damage (Sodowitch v. Heimart, 108 N. J. L. 59; 154 At. Rep. 609; affirmed, 109 N. J. L. 265; 160 Atl. Rep. 635), and that as the plaintiff in a previous suit sued for property damages to an automobile injured in the same accident as that out of which the claim here arises, without including therein the claim of property damages herein claimed, she is now precluded from asserting that claim in this suit.

The plaintiff does not answer this contention of the defendant but sets up in opposition to this motion that the defendant did not include this motion in another motion to strike out which she previously made and cites the rule that every motion addressed to a pleading must present every cause of objection then existing. That is a purely technical objection, however, and under the power given to the court should not be controlling unless some merit is involved in it. It may be true that the defendant is not surprised and that no injustice will be occasioned to her if her motion is denied. However, the plaintiff can find little fault with the court in allowing this motion to prevail in view of the fact that she has brought a multiplicity of suits herself when she could have included all of her causes in one action.

Since the plaintiff has no right to split her causes of action I can see no reason why she should be allowed to set up an additional claim for property damage in this suit.

The motion to strike out will be granted.


author: Pee Cubiam.

text:
    THOMAS A. HOPKINS, PLAINTIFF-RESPONDENT, v. CITY OF PASSAIC, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT. ELMER HERMANCE, PLAINTIFF-RESPONDENT, v. CITY OF PASSAIC, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT. JOHN P. GRANEY, PLAINTIFF-RESPONDENT, v. CITY OF PASSAIC, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.
    Submitted May 10, 1932
    Decided December 2, 1932.
    Before Justices Teenchabb, Case and Bbogan.
    For the plaintiffs-respondents, Feder •& Binder.

    For the defendant-appellant, Thomas E. Dufy and Andrew Foulds, Jr.

   Pee Cubiam.

These three actions, heard by Judge McDermott, sitting without a jury, in the First District Court of the city of Paterson, are for salaries alleged to be due. They are in like posture, were tried together and are argued as one. Each of the plaintiffs is under appointment by a former judge of the District Court of the city of Passaic to be a sergeant-at-arms of that court. Hopkins, the first appointee, .was appointed by W. Carrington Cabell, then judge of the court, in 1922. He filed a bond. On December 7th, 1926, Judge Duffy, successor to Judge Cabell, appointed John P. Graney and Elmer Y. Hermanee, who immediately filed their bonds. Ho other bonds of either of the three men have been filed. On March 1st, 1929, Judge Duffy wrote the board of commissioners of the city of Passaic that he was appointing Graney and Hermanee permanently under civil service at annual salaries of $1,500 each. On May 18th, 1929, Judge Duffy wrote a like communication regarding Hopkins. Ho authority is manifested to us whereby the judge might fix the salaries, nevertheless, everybody, apparently, accepted the situation as complete upon its face. The salaries were paid until January 1st, 1932, when they were withheld; and these actions follows. The board of commissioners did not, by formal action, fix the salaries, though it received and filed the appointment advices above referred to and paid the salaries at the rate of $1,500 per annum. Judge Duffy’s term of office expired in April, 1931, and he was succeeded by Peter H. Perretti, present judge, who has made no appointments. The trial court found for the plaintiffs. The city of Passaic appeals.

The first point stated on appellant’s brief is that title to office cannot be tried by an action for salary. We conceive this proposition to be true. Van Sant v. Atlantic City, 68 N. J. L. 449; 53 Atl. Rep. 701. But the plaintiffs made no effort to try the right to office. The defendant sought to raise that issue as a defense. The plaintiffs were, and long had been, in office performing the duties thereof. Ho effort had been made to oust them. Each was, at least, in the position of a de facto officer who had performed the service and claimed to be entitled to the compensation. Such an officer may maintain an ordinary action at law for the recovery of his compensation if unpaid. McArt v. Town of Belleville, 97 N. J. L. 396; 117 Atl. Rep. 595, and eases there cited. The point advances no sufficient ground for reversal.

The second point presented is that the term of office of each of the plaintiffs expired with that of the judge by whom he was appointed. The legality of the original appointments is not questioned. The fact that the service was rendered is not disputed. It is not suggested that there were others than the plaintiffs acting, or qualified to act, as sergeants-at-arms. The necessity to the court for services of such character is apparent. The statutory authority for the appointment of sergeants-at-arms is plain. While the plaintiffs were in precisely the same status, the city had long given official recognition by making provision for, and paying, compensation at the rate sued for. Although the city had not formally fixed the annual salary, nevertheless the amount actually heretofore paid and now sued for is the minimum, $1,500, allowed by statute for City District Courts in counties of the class of Passaic county. Section 10, District Court act, as amended Pamph. L. 1929, ch. 200, p. 374; Cum. Supp. Comp. Stat., p. 467, pl. 61-10. Dnder these circumstances, and considering the rights, already expressed, of the plaintiffs as de facto officers, we think that the point secondly presented is not a defense to the actions. Like reasoning makes ineffective the appellant’s third point, which is that on reappointment the plaintiffs did not file new bonds.

The fourth point on appellant’s brief is that the court below erroneously overruled the objection of appellant that the salaries demanded by plaintiffs had not been fixed by proper authority. Pamph. L. 1929, ch. 200, supra, made it the duty of the governing body of any municipality in which a City District Court was located to fix the amount of the salaries of sergeants-at-arms of such courts; but this duty was to be exercised, of course, by fixing a sum between the statutory minimum and maximum which, with respect to courts within counties of the class of Passaic, were $1,500 and $2,500 respectively. The position taken by the city is in effect that although it thenceforward for more than two and one-half years paid the plaintiffs the minimum salary of $1,500, it may now, because it did not by formal action fix the salary at that figure, avoid payment for service actually performed. Assuming the plaintiffs to have been serving under valid and legally subsisting appointments, we think this argument must fail; and assuming them to' have been de facto officers—and we have held that they were, at least, such—the same result follows.

Finally, it is said that the court below erroneously gave judgment in favor of each of the plaintiffs over the objection of appellant that only one sergeant-at-arms may be appointed to attend the sessions of the court and thereby become entitled to a salary. The only observation that, supplementing the general reasoning upon which this opinion turns, need be made hereon is that by Pamph. L. 1905, ch. 39, p. 63; 2 Comp. Stat., p. 1957, pl. 13a, it is provided that “the judge of any District Court may appoint one or more sergeants-at-arms. * *

Our conclusion is that the judgments below should be affirmed, with costs.


author: Pee Cueiam.

text:
    ANNIE AND MAX DASHINE, PLAINTIFFS-RESPONDENTS, v. GUSSIE PERES, DEFENDANT-APPELLANT.
    Submitted May 10, 1932
    Decided December 6, 1932.
    Before Justices Trenchard, Case and Brogan.
    For the plaintiffs-respondents, Ely & Ely (J. 8. T. Stramahan Ely, of counsel).
    For the defendant-appellant, Aaron L. Simon.

   Pee Cueiam.

The female plaintiff, while walking along the sidewalk, on which the defendant’s premises abutted, was injured by stepping into a cellar opening. There were two iron doors over the entrance to the cellar, and these doors, when closed, fitted against each other ffush with the sidewalk. At the time of the accident a nine-year-old child, the son of a tenant, was in the act of opening one of these doors for the purpose of taking his sled to the cellar. The evidence sustains the finding that as the child was laboring with the door, holding it open, Mrs. Dashine inadvertently stepped into the cellarway and was thrown; and that the child, alarmed by the mishap, loosened his hold upon the door, whereupon the door closed upon the plaintiff’s leg and foot. The action by Mrs. Dashine for her personal injuries was joined in by her husband for incidental loss. The matter was heard by the judge of the Clifton District Court, sitting without a jury. Judgment was awarded the plaintiffs.

The appellant presents three points, namely, the refusal to nonsuit, the entry of final judgment for the plaintiffs instead of for the defendant, and the absence of evidence upon which a judgment for the plaintiffs could be rendered.

On the motion for a nonsuit two grounds were assigned, first, that there was no proof that the defendant was the owner of the premises and, second, even if ownership be assumed, the injury was caused by the child, for whose act the defendant was not responsible. As to the first ground we consider that the proven facts and the legitimate inferences to be drawn therefrom sustain a finding, not only that Mrs. Peres was the owner, but also, and clearly, that she installed and paid for the doors in question. Our views on the second ground are hereinafter expressed.

Criticisms of the state of demand, expressed in appellant’s brief, seem, not to have been raised at the trial.

The remaining issue in the case is whether Mrs. Peres, an owner whose lands abutted the highway and who had used the highway in front of her premises for the construction of a cellar entrance had, in so doing, complied with the duty laid down by the Court of Errors and Appeals in Sutphen v. Hedden, 67 N. J. L. 324; 51 Atl. Rep. 721, and enunciated in other cases, of exercising reasonable care to guard against accident therefrom to users of the highway. This issue was tried by the parties and was decided adversely to the defendant.

The iron doors, when open, exposed a wide space reaching far toward the middle of the sidewalk. It is in the evidence that a form of sidewalk opening is made which involves an electric hoist and that such a contrivance, on the opening of the doors, automatically presents a guard to pedestrians. It is also in the evidence that the doors in question were equipped with a hasp and ring suited, and intended, for the insertion of a lock The photographs distinctly show this hinged hasp so set that with the addition of a padlock the doors could have been locked. No lock was provided. Neither these doors nor the doors that they replaced had been locked for a period of several years preceding the accident. It might well be considered that the absence of a lock from an equipment so constructed was a structural defect. We think that it was a factual question whether the defendant, having selected a type of door that was without a protective guard, and having failed to utilize the locking devices with which the doors were equipped, had not, in such failure, fallen short of her duty to exercise reasonable care. It was held in Davenport v. McClellan, 88 N. J. L. 653; 96 Atl. Rep. 921, that the act of a child without capacity to estimate or appreciate the danger in reviving an unextinguished street fire was contributory but was not an intervening cause in producing the resulting injury. It was, we think, within reasonable apprehension that a child or other irresponsible person would open the unsecured doors, with consequent injury to a pedestrian lawfully using the highway. The trial court found that in these omissions the defendant had negligently failed in her duty. We think that the evidence sustains that finding.

The cases relied upon by the appellant are Morril v. Morril, 104 N. J. L. 557; 142 Atl. Rep. 337, and Muller v. Baskowitz, 10 N. J. Mis. R. 4; 157 Atl. Rep. 389. The Morrill case deals with the care owing by an owner to a guest on the former’s private grounds and invokes an entirely different set of legal principles. The Muller case, in terms, excludes the existence. of a structural defect and of neglect by the owner in control over the cellarway. In the instant case the defendant was not only the owner of the premises but was the occupant, for store purposes, of the ground floor immediately adjoining the cellarway and retained joint use of the entrance; so that we think that it was within the province of the court in determining the facts of the case to find that the absence of, and the failure to use, a locking device was chargable to her.

We conclude that the nonsuit was properly refused, that the evidence sustained the judgment, and that the judgment below should be affirmed, with costs.


author: Pee Ctteiam.

text:
    MARIA GRIMM, EUGENE GRIMM AND THERESA VEESER, PLAINTIFFS-APPELLANTS, v. NICHOLAS LANGENFELD, DEFENDANT-RESPONDENT.
    Submitted May 10, 1932
    Decided December 6, 1932.
    Before Justices Teenchaed, Case and Beogan.
    For the plaintiffs-appellants, Hugo Woerner.

    For the defendant-respondent, J. Emil Walscheid.

   Pee Ctteiam.

This is an appeal from a judgment rendered by the First District Court of the city of Jersey City, the judge sitting without a jury, in favor of the defendant and against the plaintiff. The action is for rent under a lease made between plaintiffs’ decedent, Franz X. Grimm, and Otto Anders dated July 26th, 1921, for a term of five years commencing August 1st, 1921, and ending August 1st, 1926, with an option, which seems to have been exercised, to the tenant to renew for a five-year term. The lease was primarily for a store premises, but amongst the numbered paragraphs was the following:

“3. That as soon as the four rooms and bath, being the floor immediately over the said store premises, becomes empty, the second party hereto shall have the right and authority to move into the same, as a tenant under this lease, and the said four rooms and bath are hereby let and rented by the first parties hereto to the second party hereto, at the monthly rent of forty dollars ($40) additional, payable on the first day of each month, in advance, but the second party hereto shall not have the right to move into the said rooms until the present tenant shall move out of the same.”

The rental for the living apartment only is now -sued for. The defendant denies that the lease obligates him.

The lease was assigned by the tenant named therein and several times reassigned. On March 4th, 1922, Anders assigned to Schlope; on October 28th, 1922, Schlope assigned to Fausak; on April 1st, 1926, Fausak assigned to Dorn; on April 22d, 1929, Dorn assigned to FTewmeyer and Marón, and on May 29th, 1930, the last named assigned to Bauer who on June 14th, 1930, assigned to the present defendant. Frank X. Grimm died December 15th, 1929, prior to the two last named assignments. The state of the case was settled by the trial judge. From the summary of evidence it appears that while Anders did not occupy the living apartment, Schlope, his assingee, did. That fact appears positively and without contradiction. The record is silent as to whether Fausak occupied the living apartment but is specific to 'the effect that the subsequent assignees did not. The testimony is not given with sufficient detail to enable us to determine whether there was a re-entry by the landlord in his own right; nor did the case turn on that question. :

The trial court found that the clause quoted above constituted an option or privilege in reference to the four-room apartment, and that the defendant or his predecessors had never exercised the said option and that therefore they or either of them, including the said defendant, were not bound thereby. We are unable to reconcile that finding of fact with the testimony regarding Schlope, one of defendant’s predecessors in the tenancy under the lease. Whether the third paragraph was, as plaintiffs contend, an integral part of the leasehold, effective when the then tenant of the living apartment vacated, or, as the defendant contends and the trial court held, an option which the tenant of the store premises under the lease might or might not, on his own election, avail himself of, we think that if and when occupancy was actually had by the lease tenant the latter became, in the language of the paragraph, “a tenant under this lease,” and that the lease thereafter bore equally, in its appropriate provisions, upon the living apartment and the store premises.

The cause having been submitted to the court to be heard without a jury, any error made by the court in giving final judgment in the cause is subject to change, modification or reversal, notwithstanding the grounds of objection were not specifically submitted to the court. Pamph. L. 1916, ch. 62, p. 109. Pannonia Building and Loan Association v. West Side Trust Co., 93 N. J. L. 377; 108 Atl. Rep. 240. This practice applies to District Courts. Smith v. Cruse, 101 N. J. L. 82; 128 Atl. Rep. 379. In so far as Zager v. Adams, 9 N. J. Mis. R. 453; 154 Atl. Rep. 411, states otherwise, it is out of line with the statute as construed by the Court of Errors and Appeals.

We conclude that the testimony does not sustain the factual finding of the trial court, and as that finding seems to have been a controlling factor in the conclusions as to the defendant’s liability, we deem it proper to reverse the judgment to the end that the record bo remitted and a new frial be had.


author: Bbogan, J.

text:
    BENJAMIN F. TURNER, PROSECUTOR, v. PASSAIC PENSION COMMISSION AND THE BOARD OF COMMISSIONERS OF THE CITY OF PASSAIC, DEFENDANTS.
    Argued September 10, 1932
    Decided December 6, 1932.
    Before Justice Bbogan, sitting alone, pursuant to the statute.
    For the prosecutor, Weinberger & Weinberger.

    For the defendants, Thomas E. Dufy..

   Bbogan, J.

The argument on the return of this writ of certiorari has been brought on and submitted to me for determination as a single justice of the Supreme Court. The facts in the case are as follows:

Benjamin F. Turner, who prosecutes this writ, is a city commissioner of the city of Passaic, which is governed by the "Walsh act (or Commission Government act, as it is popularly known), and is the director of parks and public improvements. He was elected to the governing body for a term of four years on May 12th, 1931.

Prior thereto and for some years he had been a member of the police department of the city of Passaic, having been patrolman, sergeant and, finally, captain of detectives. As such he had also been a member in good standing of the pension fund for members of the police department in the city of Passaic, regularly established under statutory provision, by authority of Pamph. L. 1911, ch. 72; Pamph. L. 1920, ch. 160. Under these statutes, the members of the police and fire departments make contributions to the pension fund commission, the same being deducted regularly from their salaries. The particular municipality, too, makes yearly contribution to the pension fund of an amount equal to four per centum of the total salary roll of the police and fire departments.

Now the said Turner resigned as captain of detectives, and on January 1st, 1931, was voted a pension by said pension fund commission of $1,550, to which he was lawfully entitled and which pension was paid to Turner up to July 1st, 1932. Payments thereafter were denied him by the pension fund commission, which passed a resolution to the effect that no further pension checks would be issued to Benjamin P. Turner, a commissioner of the city of Passaic, during the term for which he was elected, as long as he receives checks from the city of Passaic for his services as a member of the governing body. The reason for refusing him the pension checks is based on a statute passed by the legislature of this state on June 8th, 1932 (chapter 259, laws of 1932), entitled “An act concerning the state, counties, towns, townships, boroughs, villages and other municipalities of this state and regulating public employment therein,” the pertinent part of which statute is as follows:

“Any person who at the time of the passage of this act is receiving or who shall hereafter be entitled to receive any pension or subsidy from any county, city, town, township, borough, village, or other municipality, including school districts, shall from and after the passage thereof be ineligible to hold any public position or employment in the state or in the county, city, town, township, borough, village, or other municipality or school district, unless he shall have previously notified and authorized the proper authorities of the state or of the county, city, town, township, borough, village or other municipality or school district from which he is receiving or entitled to receive such pension, that, for the duration of the term of office of such public position or employment his pension shall remain unpaid. * * * The officers of such respective governing bodies and any other person who shall violate any of the provisions thereof shall be guilty of a misdemeanor.”

The said Benjamin P. Turner, therefore, prosecutes this writ of certiorari, reviewing the action of the pension fund in denying him his pension checks and assigns several reasons, attacking the action of the pension fund as illegal, which are as follows:

Chapter 259 (Pamph. L. 1932), is unconstitutional as far as prosecutor is concerned, because it impairs the obligation of a contract and interferes with a vested right as guaranteed by aifiicle 4, paragraph 3, section 7 of the constitution. Other reasons are assigned but since they are not argued in the prosecutor’s brief they must be considered as abandoned. Sargeant Brothers v. Grancati, 107 N. J. L. 84; 151 Atl. Rep. 843.

In support of his position, it is strenuously argued on behalf of the prosecutor that he has a complete vested right to a pension, having complied with all the conditions required to entitle him thereto and that any legislation interfering with such rights comes under the constitutional ban, article 4, section 7, paragraph 3, of the New Jersey constitution, which is as follows:

“The legislature shall not pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract which existed when the contract was made.” Citing Baldwin v. Flagg, 43 N. J. L. 495, and Ball v. The Board of Trustees of Teachers’ Retirement Fund, 71 N. J. L. 64; 58 Atl. Rep. 111.

The case first cited, Baldwin v. Plagg, needs no discussion here. It is one of the earlier and leading cases on the question of legislation interfering with the obligation of a contract, but as I view the case before me, this authority has no application to the issue here presented.

The case of Ball v. The Board of Trustees of Teachers’ Retirement Pund, however, is worthy of mention. There the pension fund was made up from the contributions of the teachers themselves, who, under legislative sanction, were privileged after twenty years of service and incapacitation to be retired and receive an annuity out of the fund. Pamph. L. 1896, p. 58. The legislature then passed a law (Pamph. L. 1899, p. 475) which is an amendment to the previous act making the retirement of the teacher dependent upon the approval of the board of trustees, so that the incapacitated teacher thereafter was not entitled to retire at his or her request as under the act of 1896. That this amendment did violence to the contractual rights of the teacher, who voluntarily came in and subscribed to the fund, under legislative sanction, and acquired certain rights thereby, is manifest, and this court so held in that case. It is plain that the legal principle there enunciated does not apply here and that the Ball ease and the case under consideration differ widely.

In the instant case I am concerned only with the rights of the prosecutor of this writ as affected by the statute under discussion—chapter 259, laws of 1932. 1 do not decide whether or not he had a vested right to the pension. Whether he had or not seems to me to be immaterial.

The Commission Government act is a form of governmental machinery, created by the legislature for the government of certain of the municipalities, when same shall have been adopted. It cannot be denied that the legislative branch of the government may set up certain conditions precedent and subsequent as to who may lawfully function as a member of the governing body under this legislative scheme. If this be true, it may also alter those prerequisites by amendment or supplement of the original act, or by independent statutory enactment.

That the holding of a public office is not a contract under the law has long been established. Hoboken v. Gear, 27 N. J. L. 265. There it was held that an appointment to public office for a term of years and the acceptance of such office is not a contract between the government and the person appointed. The difference between such appointment and services rendered thereunder and a private agreement is plain. When parties enter into a private agreement they are both bound by the terms thereof for the duration of the contract and if either one breaches the agreement or its covenants he is answerable to the other. A pubilc officer, however, is not bound to serve for the time appointed. He may resign or otherwise end the relationship without violating any contract. Again, if a public officer prove unfaithful to his trust certainly he is not answerable to the governing body for breach of contract. It is plain that the holding of a public office in essence cannot be a contract. To apply this reasoning to the instant ease, the prosecutor of this writ has no contracual right to his office as commissioner. He has it in his power to terminate his occupancy of that office or the legislature, in its discretion, may abolish the commission form of government or might set up, as it did in the statute under consideration (chapter 259, laws of 1932), a bar to his holding office and receiving the compensation that goes with the services performed. No act may be passed by the legislature violating the right of property, impairing the obligations of contracts respecting property rights. Dartmouth College v. Woodward, 4 Wheat. 518. This case is not within the interdiction of the constitutional ban because an appointment to public office or an election to public office is not a contract and bestows no vested rights. Hillel v. Edgewater, 106 N. J. L. 481; 150 Atl. Rep. 385; Barr v. Geldziler, 108 N. J. L. 397; 156 Atl. Rep. 644.

In this case the legislature, by the provisions of chapter 259 (Pamph. L. 1932), has set up added qualifications to holding (as in this case) public office and, in other cases, offices or positions for which payment is made by the state or any of its subdivisions. In a word, it provides that where a person enjoys a pension from any county, city, &c., he shall be ineligible, which means incapable legally, to hold any public position or employment in the state or any of its subdivisions unless he shall waive his right to such penison during the term of his office or employment in the service of the public. The pensioner (in this case, the prosecutor of this writ) has his election. He is enjoying a pension. He does hold a public position such as is contemplated by the statute and from which he receives a salary. He cannot receive both his salary as a public officer and his annuity as a beneficiary of the pension fund. He may waive his salary and continue to receive his pension without legal objection or he may, for the duration of the term of his office, waive his right to the pension and receive his salary as a commissioner of the city of Passaic without legal objection, all of which leads me to the conclusion that the resolution of the pension fund commissioners of the city of Passaic is legally efficacious; that the statute upon which it is predicated does not work an impairment of any contractual right that the prosecutor has to his office as commissioner of the city of Passaic because, as I view it, he has none; prosecutor’s continuance in public office as commissioner of Passaic and receiving salary therefor constitutes a waiver by him of his right to the pension for the period during which he shall continue to hold said office and enjoy the salary for such services rendered; even vested rights may be waived. The writ is therefore dismissed, with costs.


author: Ackerson, S. C. C.

text:
    KENNETH LINDSEY, PLAINTIFF, v. THE EVENING JOURNAL ASSOCIATION, A CORPORATION, AND CHARLES V. FINCH, JOINTLY AND SEVERALLY, DEFENDANTS.
    Decided December 1, 1932.
    For the plaintiff, Ralph J. Ducoff.

    For the defendants, Carey & Lane.

   Ackerson, S. C. C.

This is an action for libel against two defendants, The Evening Journal Association and Charles V. Finch. The complaint contains three counts. The first two are against The Evening Journal Association and the third against the co-defendant Finch. All three counts. however, are based upon the same alleged libelous publication contained in an issue of the Jersey Journal, which publication is set forth in the complaint as follows:

“Harry Eey apparently did not like the idea of having made public his subtle, but futile, attempts at political double-crossing. He was unceremoniously kicked out of our political camp because we would not tolerate-his tactics. His present political bedfellows are entirety welcome to him— until such time, of course, that they, too, tire of him and start him back to Kentucky.

“Eey undoubtedly was encouraged in his tactics by his assignment as counsel to Kenneth Lindsey, Seglie henchman,' who was caught in the act of disfranchising Union City voters simply because they did not bow the knee to Paul Seglie. Eey will more probably fit in a picture with Lindsey than he possibly could in our camp, where he could find nothing in common with his own style.”

Each of the defendants has filed an answer. That of The Evening Journal Association, in addition to certain admissions and denials, contains ten separate defenses. That of the defendant Charles V. Einch contains nine separate defenses.

The matter now comes before me upon the plaintiff’s motion to strike out certain of the separate defenses contained in each answer, which defenses will be hereinafter noticed.

Taking up first the answer of The Evening Journal Association we find that the first defense is not objected to. The second and third separate defenses, although couched in different language, are intended to put in issue the defamatory sense averred in the complaint. The third separate, defense is in the following language: “This defendant says that the publication complained of, when read in connection with the entire language published, did not admit of the defamatory sense averred in the complaint.” This is objected to on the ground that it is sham and also that it is an unnecessary repetition of the main part of the answer and of the second separate defense. Inasmuch as the plaintiff has submitted no affidavits with his notice of motion, and the entire article as published is not before me, this defense should not be stricken out as sham. It is intended, however, to raise the same defense as set forth in the second separate defense, and one or the other should be stricken out as duplicitous and unnecessary. Inasmuch, therefore, as the third separate defense is couched in the language approved of in the case of Schwarz Brothers Co. v. Evening News Publishing Co., 84 N. J. L. 486; 87 Atl. Rep. 148, it is desirable that it should stand and the second separate defense be stricken out as unnecessary repetition, and that will be the order.

The fourth separate defense is not by way of denial of the right of action but seeks to plead in mitigation of damages, that the defendant honestly believed, and has reasonable and probable cause to believe that the publication was true, and that it was inserted without malice. In this latter aspect, such a pleading was permitted, under the Practice act of 1912, in the case of Schwarz Brothers Co. v. Evening News Publishing Co., supt'a, primarily as a defense to the claim for punitive damages. The criticized pleading should, therefore, be permitted to stand.

The fifth separate defense is as follows: “This defendant says that the publication complained of was privileged. This defendant further says that the same was published without malice.” Plaintiff objects to this alleged defense on the ground that it is frivolous and sets forth a conclusion of law without alleging the facts from which such a conclusion may be drawn, and on the further ground that it is an unnecessary repetition of the fourth defense. The last mentioned ground is not tenable. As to the other grounds, it is sufficient to say that the pleading would probably be good on a general demurrer at common law, the equivalent of a motion under rule 40 of this court—but would not be good under a special demurrer at common law which is the equivalent of a motion under rule 39. Inasmuch as the plaintiff’s reasons for this motion, as stated, are sufficient to raise objections under either of said rules, the pleading must be stricken out because the statement that “the publication complained of was privileged,” is a mere conclusion of the pleader without the allegation of any facts whatever to support the same.

The sixth separate defense is as follows: “This defendant further says that the plaintiff has failed to request of this defendant to retract the alleged libelous statement.”

This is an attempt to take advantage of the second section of the act entitled “An act relating to libels” (Pamph. L. 1898, p. 476, § 2), which provides as follows:

In every civil action for libel against the owner or owners, manager, editor, publisher, or reporter of any newspaper, magazine, publication, periodical or serial in this state, the defendant may give proof of intention, and unless the plaintiff shall prove either malice in fact or that the defendant, after having been requested by him in writing to retract the libellous charge in as public a manner as that in which it was made, failed to do so within a reasonable time, he shall recover only his actual damage proved and specially alleged in the declaration.

The evident purpose of this act is to afford tire publisher of a newspaper, magazine, &c., the opportunity to escape punitive damages under the circumstances indicated, and a defense thereunder only goes to the question of such damages, and would not affect the question of compensatory damages if proper ground therefor is laid in the complaint.

The plaintiff objects to this defense as either sham or frivolous, but fails to argue the question in his brief, and his objection, therefore, may be considered as abandoned. In any event the defense cannot be considered as sham, as the plaintiff has filed no affidavits in support of his motion. Heither can the pleading be considered as frivolous, because, if true, it would possibly have the effect of eliminating punitive damages, and, therefore, proper under the case of Schwarz Brothers Co. v. Evening News Publishing Co., supra.

The sixth separate defense, however, must be stricken o.ut by the court of its own motion, on the ground that it is unnecessary repetition. Paragraph 8 of the complaint alleges a refusal on the part of the defendant to make retraction, upon a written request therefor bjr the plaintiff, and this is denied in paragraph 8 of the main part of the defendant’s answer. This sufficiently raises the question involved without repeating the same in the sixth separate defense, which will, therefore, be stricken out for the reason indicated.

The seventh separate defense alleges In effect that the alleged libelous statement had been published in other newspapers, and was a matter of common rumor previous to the publication thereof, in the Jersey Journal, and, therefore, any damages which may have been caused to the plaintiff were not caused by the publication in the newspaper of the defendants.

Plaintiff moves to strike out this defense on the ground that it is frivolous and does not set forth a defense to the complaint, and on the ground that it is prolix and argumentative.

It is true that the matters alleged would not be a legal justification for the publication of the alleged libel, and could only be taken into account in determining the amount of damages sustained by the plaintiff. Stuart v. News Publishing Co., 67 N. J. L. 317. As a claim of justification the pleading is, therefore, frivolous. Taken in the view of a denial that the plaintiff was damaged thereby, the pleading is duplicitous and unnecessary, as the subject thereof may properly be availed of under the defendant’s denial of the damages set forth in paragraph seven of the complaint. This defense will, therefore, be stricken out as frivolous and unnecessary.

The eighth separate defense alleges in substance “that at the time of the alleged publication the defendant Charles Y. Pinch, and the plaintiff, Kenneth Lindsey, were actively engaged in a political campaign and were openly and publicly opposing each other in reference thereto.” It also sets out that the plaintiff was a member of the Hudson county board of elections and was removed from that office for the reasons referred to in the statement charged to be libelous; further, that as a result of charges made against him by the Hudson county board of elections, the plaintiff was placed under arrest, and further, that the publication was made without malice and in the course of the defendant’s duties to publish news solely for the public interests and public welfare.

The plaintiff moves to strike out this defense on the ground that it is frivolous, impertinent, argumentative, prolix and scandalous, and does not set forth a defense to the action and amounts to a conclusion of law without the allegation of facts to support the same.

In the first place it is to be noted that it is not asserted that the plaintiff was a candidate for public office. It is apparent, therefore, that the defendant seeks to avail itself of the privilege accorded by law to the press and public generally of fair comment and criticism upon actual facts which are matters of public interest.

There is no doubt that the public acts of a public man may lawfully be made the subject of fair comment or criticism, not only by the press, but by all members of the public. But the distinction cannot be too clearly borne in mind between comment or criticism, and allegations of fact, such as that disgraceful acts have been committed or discreditable language used. It is one thing to comment upon or criticize, even with severity, the acknowledged or proven acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct. It is settled that newspapers as such have no peculiar privilege, and it is equally settled that the privilege of comment and criticism on matters of public interest does not extend to false statements. Schwarz Brothers Co., v. Evening News Publishing Co., supra.

As was said in the case of Burt v. Advertiser Newspaper Co., 154 Mass. 238, 242, where the charges were of fraud in the New York customs house:

“We agree with the defendant that the subject was of public interest and that in connection with the administration of the customs the defendant would have a right to make fair comments on the conduct of private persons affecting that administration in the way alleged. But there is an important distinction to be noticed between the so-called privilege of fair criticism upon matters of public interest and the privilege existing in the case, for instance, of answers to inquiries about the character of a servant. In the latter case a bona fide statement, not in excess of the occasion, is privileged, although it turns out to be false. In the former what is privileged, if that is the proper term, is criticism, not state ment; and however it might be if a person merely quoted or referred to a statement as made by others, and gave it no new sanction, if he takes upon himself in his own person to allege facts otherwise libelous, he will not be privileged if those facts are not true.”

The difficulty with the eighth separate defense is that the pleader fails to distinguish between comment or criticism o£ the acknowledged or proven acts of a public man, and a statement or charge that he has been guilty of particular acts of misconduct. The assertion in the publication in question that the plaintiff, Kenneth Lindsey, “was caught in the act of disfranchising Union City voters because they did not bow the knee to Paul Seglie,” is not merely comment or criticism, but is a direct charge of a particular act of official misconduct. Such a statement, if not true, would certainly not be pivileged, even if made without malice and in the course of publishing the news. If such statement was true, it would probably be met by a defense that the publication was true in substance and in fact, and the belief of the plaintiff or the lack of malice would make no difference. Such an issue is probably raised under the first separate defense which pleads that the defendant is “not guilty of the allegation contained in the complaint of the plaintiff.”

As was said by Mr. Justice Swayze in the case of Schwarz Brothers Co. v. Evening News Publishing Co., supra, where the publication was concerning the conditions existing in the plaintiff’s slaughter house:

“The sixth defense sets forth a right to describe the conditions at the plaintiff’s place and the right to comment as if the two rights were the same. If the only meaning of the pleador is to aver that the newspaper had the right to comment upon admitted facts as to the condition of the plant and the method of doing business, it would be unobjectionable, for fair comment is not libelous at all and requires no justification. Odg. *32; Campbell v. Spottiswoods, 3 B. & S. 769; Davis v. Shepstone (L. R.), 11 App. Cas. 187; 55 L. J. P. C. 51; Burt v. Advertiser Newspaper Co., supra; other eases are collected in 25 Cyc. 401. The difficulty is that the publication was not mere comment upon admitted facts. Whether it was a statement of conditions that prevailed at the plant of the plaintiff or not is the very point in controversy. It was a description of the conditions that prevailed, it is covered by the plea that the publication was true in substance and in fact and the belief of the plaintiff makes no difference. But the evident object of the defense was to set up a privilege on the part of a public newspaper to publish falsehoods with reference to a man’s business if it believed them to be true.”

Sufficient has been said to show that the eighth separate defense must be stricken out because it is frivolous and does not present any legal defense to the action.

The ninth separate defense alleges in substance that the plaintiff was employed as a clerk in the Hudson county board of elections and was charged by officers thereof with changing addresses of persons who had previously recorded changes of residence to that board, and that he willfully failed to perform or enforce the provisions of section 11, chapter 328 of the Pamphlet Laws of 1926, concerning the election laws of the State of Hew Jersey; that based upon said charges a bench warrant was issued for his arrest and he was held to await the action of the grand jury; therefore, in view of these facts, the publication in question was entirely justified, the defendant believing them to be true and having published same without malicious intent.

Plaintiff moves to strike out this defense upon several grounds, among them being that it is frivolous and does not set forth a defense to the action.

What has been said in disposing of the eighth separate defense is sufficient to show that this defense should also be stricken out as frivolous or as not setting forth a legal defense.

This defense does not allege that the said charges against the plaintiff were true nor that he was convicted thereof. If this were the case, it would be a sufficient justification in itself without the other allegations above referred to. Of course, such a defense, if it had been made, would have been unnecessary, because the issue of truth has already been raised in another part of the answer. If the charges were not true, the defendant could not justify them on the ground that the defendant believed them to be true, and that they were published without malicious intent, for as already observed, the alleged libelous publication contains a direct charge of misconduct made by this defendant against the plaintiff. This is not comment or criticism but a direct charge, and therefore not privileged, and only justifiable if true.

The ninth separate defense will, therefore, be stricken out as frivolous and not setting forth a legal defense.

The tenth separate defense is but a repetition in fuller form of the sixth separate defense to the effect that no demand for retraction has been required by the plaintiff of this defendant. As observed in discussing the sixth separate defense, it is only effective in disposing of the question of punitive damages, and since the same issue is raised by the defendant’s denial of the eighth paragraph of the first count of the complaint which sets forth that a request for retraction was made and refused, it would seem that the tenth separate defense is duplicitous and should be stricken out by the court for that reason.

Turning now to the answer of the defendant Charles V. Finch, we find that the motion is addressed to all of the separate defenses except the second.

The first separate defense is stated as follows: “This defendant denies that the complaint sets forth a good cause of action.” Of course, as plaintiff insists, this is1 not the proper subject for an answer, for it raises an issue of law which should be raised by a motion to strike out the complaint. This alleged defense will, therefore, be stricken out for the reason stated.

The third, fourth and fifth separate defenses are identical with the same numbered defenses in the answer of the defendant The Evening Journal Association, herein above considered, and will receive the same fate. This results, therefore, in striking out the fourth and fifth separate defenses but allowing the third to stand for the reasons indicated in disposing of such defenses in the answer of The Evening Journal Association.

The sixth separate defense seeks to justify the alleged libelous publication upon the ground that it was but fair and reasonable criticism by the defendant of one of his political opponents, although it is not alleged that the plaintiff was a candidate for office, and that the statements were predicated and based upon reasonable inferences and upon fact.

The plaintiff seeks to strike this out as frivolous.

If the criticized pleading had alleged that the publication was true, it would have been a good defense. Comment and criticism cannot be based upon inferences, unless such inferences are based upon actual facts, and this pleading does not tell us what the particular facts are from which the inferences were drawn. Furthermore, the alleged libelous statement contains a direct charge made by defendant against the plaintiff of official misconduct. This is not comment or criticism, and if the charge is not true, it would not be privileged. This subject was dealt with above in discussing the eighth separate defense set up in the answer of the other defendant.

The sixth separate defense will, therefore, be stricken out as frivolous and not setting forth a legal defense to this action.

The seventh separate defense is the same as the eighth separate defense in the answer of the other defendant already disposed of, and will be stricken out for the same reasons, viz., that it is frivolous, and does not present any legal defense.

The eighth separate defense is the same as the ninth separate defense in the answer of the other defendant already disposed of, and will be stricken out for the reasons given in making such disposition, viz., that it is frivolous and does not set forth a legal defense.

The ninth separate defense is the same as the sixth separate defense in the answer of the other defendant and will be stricken out by the court as unnecessary repetition because, so far as it may tend to eliminate punitive damages, the same issue is raised in another part of this defendant’s answer, and it is, therefore, unnecessary.

This disposes of the questions raised on plaintiff’s motion and an order may be presented in accordance with the conclusions above reached. No costs will be allowed.


author: ELatzenbach, J.

text:
    CANTOR v. PUBLIC SERVICE RAILWAY COMPANY.
    Decided January 23, 1923.*
    *Received for publication November 3, 1932.
    For the motion, John H. Fryling and Joseph Coult, Jr.

    Opposed, James Mercer Davis.

   ELatzenbach, J.

The defendant in this case moves for an order requiring the plaintiff to furnish answers to certain questions which, considered together, may be said to form a demand for a bill of particulars. The questions are as follows:

“1. Describe particularly the manner in which you were injured, and what physical injury you suffered by reason of the accident complained of.

“2. Were you confined to your bed by reason of the injury complained of, and if so, for how long?

“3. Were you confined to your house by reason of the injury complained of, and if so, for how long?

“4. How much did you expend for physicians’ bills, if anything ?

“5. Did you expend anything for medicine? If so, how much, from whom and at what address did you procure it?

“6. Por what number of days were you prevented from earning money at your occupation as a consequence of the accident and on what day did you return to your occupation after the accident ?

“7. Are you entirety cured of the injuries you sustained by reason of the accident? If not, state fully and particularly in what respect you still suffer from the injury you claim to have sustained.

“8. Give an itemized statement of the disbursements and losses incurred by you and by reason of the injuries alleged.

“9. Were you the sole owner of the automobile described in your complaint?

“10. If you were not the sole owner of the automobile, what interest did you hold in it? Also give the names and addresess of any other persons having an interest in said automobile.

“11. Please state the make, type and model of the automobile which you claim was damaged by reason of the accident complained of, and the year in which the automobile was made.

“12. Prom whom did you purchase the automobile, giving the name and address and the date of purchase?

“13. How much did you pay for the automobile ?

“14. Was the automobile new or old at the time of its purchase by you?

“15. Who repaired the automobile, giving name and address, and how much did the repairs cost ?”

The plaintiff resists the motion on the following grounds: First, that a bill of particulars cannot be demanded in a tort action; second, that a bill of particulars cannot be demanded after an answer has been filed; and, third, that the information asked for obliges the plaintiff to disclose matters of evidence to which the defendant is not entitled.

In the case of Watkins v. Cope, 84 N. J. L. 143; 86 Atl. Rep. 545, 547, Mr. Justice Parker said: “It is true that section 102 of the Practice act of 1903 provides only for a demand of particulars in contract cases; but I do not understand that this in any way abrogated the common law practice of directing a bill of particulars to be furnished by either party in a proper ease, whether of contract or tort. Section 102 was repealed by the act of 1912, but rule 18 appended to the latter act says that: ‘Bills of particulars may be ordered as heretofore.’ * * * The rule at common law was well settled that in a proper case particulars would be ordered in all classes of legal actions. * * * The rule as broadly laid down in the famous case of Tilton v. Beecher, 59 N. Y. 176, 184; 17 Am. Rep. 337, with abundant citation of authority, is that: ‘A bill of particulars is appropriate in all descriptions of actions where the circumstances are such that justice demands that a party should be apprised of the matters for which he is to be put for trial with greater particularity than is required by the rules of the pleading.’ This disposes of the question that in tort actions the court has no power to order a party to furnish a bill of particulars.”

In Zitarski v. Hahne Co. (a tort action), decided in this court December 27th, 1913, the Chief Justice ordered that a bill of particulars be furnished to the defendant after he had answered the plaintiff’s complaint, hence a bill of particulars may be ordered to be furnished even after issue has been joined.

The fact that this case is a tort action and that issue has been joined by the filing of an answer is no bar to the authority of the court to order a bill of particulars to be furnished the defendant by the plaintiff. The exercise of this power on the part of the court is discretionary, and should only be exercised where the court is satisfied that justice to the demanding party requires the furnishing of the information sought. To hold otherwise would be to countenance a practice that would be harassing and vexatious, and would, in many instances, prolong trials in matters relatively unimportant to the issues. Whether a demand for a bill of particulars should be ordered depends upon the circumstances of each case. It therefore requires consideration, seriatim, of the questions above set forth forming the demand.

The first question is, in my opinion, sufficiently answered in the complaint. The complaint fully sets forth the time, place, and circumstances of the accident, and sufficiently apprises the defendant of these matters for it to prepare its defense. The complaint also sets forth with very considerable particularity the injuries of the plaintiff, in that it says that they consist of severe bruises, contusions, and lacerations of his head, body, and limbs, and especially his neck, and an affection of his heart, which condition the plaintiff believes and avers is permanent in character. Furthermore, where a defendant is entitled to a physical examination of the plaintiff, it seems to me that the ends of justice do not require the plaintiff to set forth, in answer to a demand for a bill of particulars, a minute description of the physical injury suffered by reason of the accident. In many instances the plaintiff would not be able minutely and technically to describe his injuries.

The second, third, fourth and fifth questions, in my opinion, call for particulars which are not necessary for the preparation of the defendant’s ease.

What has been said with reference to the second, third, fourth and fifth questions applies also to the sixth. In addition to this reason, the plaintiff does not seek damages for loss of earnings, as the complaint reads: “In consequence of which [the accident] the plaintiff has suffered great pain of mind and body thence hitherto, and will, in the future, on account of the nature of his said injuries, be compelled to lay out and expend large sums of money in and about having his said injuries cured, and the automobile of the plaintiff was demolished due to carelessness as aforesaid.” It may be that the court would allow, if objections were made, an amendment covering the loss of earnings growing out of the accident, yet, as it is not especially claimed, I think, for this reason, as well as the other given, that the plaintiff is not required to answer this question.

The seventh question is one which seeks information which the defendant can obtain by a physical examination of the plaintiff. It is also a question which the plaintiff, in all probability, would be unable to answer, as it requires expert knowledge.

The eighth question is too broad and requires information which goes beyond the claims for damages made in the complaint.

The ninth question is one which the plaintiff should, in my opinion, answer, as he states in his complaint that: “The automobile of the plaintiff was demolished due to the carelessness, as aforesaid.” I will therefore sign an order requiring the plaintiff to furnish to the defendant the information sought by the ninth question, and also the tenth and eleventh questions.

The twelfth, thirteenth, fourteenth and fifteenth questions call for matters not necessary, in my opinion, for the preparation of the defense.

No costs will be allowed to either party on this motion.