author: Bigelow, J. A. D.

text:
    ANNE FRANK, PLAINTIFF-APPELLANT, v. JOSEPH FRANK, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 16, 1950
    Decided November 8, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Leo C. Zucker argued the cause for the appellant (Mr. Samuel Roessler, attorney).

      Mr. John J. Gafey argued the cause for the respondent (Messrs. Minard, Cooper, Gaffey & Webb, attorneys).
   The opinion of the court was delivered bjf

Bigelow, J. A. D.

The complaint of the appellant wife against her husband, the respondent, embraces, three causes of action. The first for separate maintenance; the second for arrearages of alimony due under an interlocutory order of one of the circuit courts of Elorida; and the third for money loaned. The Chancery Division gave judgment .against her on the first two causes and awarded her $1,200 .on'the third, in which she claimed $4,000. We will treat the three causes in order.

In September, 1947, appellant and her husband drove from New Jersey to Eort Lauderdale, Elorida, where respondent liad just purchased a tavern, the Six and Six Bar. Upon arrival at Fort Lauderdale, they rented an apartment but could not have immediate possession and meanwhile they took a room at the Boulevard Hotel. On November 12th, respondent moved to the apartment that they had rented, while appellant remained at the hotel, although respondent asked her to go with him. She asserts that he was guilty of a constructive desertion. Since then the parties have not lived together and respondent has not supported his wife.

The happenings during the two months in Florida preceding the separation, may be gathered from appellant’s testimony: Before November 2nd “we had little arguments that didn’t amount to anything.” The evening of that day, Frank became drunk and decided to “leave the women home and go out stag with Mr. Muller.” “We had an argument and he called me names” — vile ones. Frank came home about two or three o’clock in the morning and the name-calling was resumed. Muller had come with him but remained downstairs. So appellant got out of bed, put on a “house coat” and went down to chat with him for a while. In the morning, Frank began quarreling again. “I wanted to call the police and he took the receiver out of my hand and hit me on the chest.” Later in the day, appellant consulted a lawyer and instructed him to begin a proceeding for separate maintenance. But it was not until a week later, November 10th, that she swore to the complaint. The papers were served on Frank just before he moved from the hotel to the apartment. After the events of the night of November 2nd, “We weren’t on speaking terms.” “Did you have quarrels during that period ?” “No.” They continued to occupy the same room, but according to appellant they forebore sexual intercourse. More remote from the actual separation were the other incidents related by appellant: March 17, 1947; 1944, between Christmas and New Tear; and 1941.

The husband has the right, within reasonable limits, to choose the family place of abode and it is his wife’s duty to live with him there. Rich v. Rich, 109 N. J. Eq. 216 (E. & A. 1931). Appellant does Dot assert that the apartment to which her husband moved on November 12th was in any way unsuitable. She refused to accompany him because she was unwilling to continue living with him anywhere. The separation was her act. To put the onus of the separation on respondent, she must prove misconduct by him that would constitute a ground of divorce. Danzi v. Danzi, 142 N. J. Eq. 662 (E. & A. 1948). She specifies extreme cruelty. To succeed in her action, she must show that his conduct was such that her health was endangered or her life rendered so extremely wretched as to incapacitate her to discharge the duties of a wife, or that her husband’s conduct, if continued, would bring about these results. Fallon v. Fallon, 111 N. J. Eq. 512 (E. & A. 1932). We agree with the Advisory Master that appellant fails to meet this test.

The respondent, through the years, was frequently drunk, generally rude to his wife; sometimes called such names as whore; on three or four occasions struck her. At times, but not frequently, he neglected or refused to provide her with sufficient money to run the household. But the appellant must have known pretty well what to expect when she married him, for she was then employed in his tavern. Giving full consideration to all the evidence, we do not find respondent guilty of extreme cruelty, or liable for the separate maintenance of appellant.

We turn to her second cause of action. On November 14th, the Circuit Court made an interlocutory order in appellant’s suit for support, that defendant pay plaintiff “for her temporary alimony the sum of $75 per week beginning November 15, 1947, until the further order of this court.” On December 2, 1948, another order in the cause was signed, adjudging respondent in contempt. These are the orders on which appellant relies.

Congress, implementing the full faith and credit clause of our Constitution, Art. 4, sec. 1, has enacted that the “judicial proceedings” of any court of a state shall have “the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” 28 U. S. C. A., § 1738 (1950 ed.; see 1940 ed., § 687). A decree for future alimony is entitled to full faith and credit as to past due installments, if the right to them is absolute and vested, even though the decree may be modified prospectively by future orders of the court. But the decree is not considered final and not entitled to credit if the court may retroactively reduce or cancel past due installments. Sistare v. Sistare, 218 U. S. 1, 30 S. Ct. 682 (1910). And in such case an action on it for the accrued alimony cannot be maintained in New Jersey. Kelly v. Kelly, 121 N. J. Eq. 361 (E. & A. 1937). The enforceability in our New Jersey courts of the order for temporary alimony, depends upon the law of Florida. In Duss v. Duss, 111 So. 382, decided in 1927, the Supreme Court of Florida held that an order made in a divorce suit, allowing temporary alimony, is interlocutory in character and remains within the control of the court, at least until final decree, in the absence of an appeal; and that such an order is made by virtue of the general equity power of the court and that the court in its discretion may modify or vacate the order and relieve the husband of the payment of past due installments of alimony. Our own law on the subject is similar. Wilson v. Wilson, 14 N. J. Misc. 33 (Ch. 1935). If the Duss case is still the law of Florida, appellant can maintain no action in New Jersey upon the order for temporary alimony, for her right to the alimony is not absolute or vested.

But appellant urges that the law has been changed by statute, cha,pier 16780, Florida Laws of 1935. This enactment empowers a circuit court by order to decrease, increase or confirm the amount of separate support, maintenance or alimony provided for in a decree theretofore made. In Van Loon v. Van Loon, 182 So. 205 (Fla. 1938), dealing with permanent alimony, it is said that the statute authorizes amendment of alimony decrees only as to payments not yet due at the date of the application for modification. Appellant argues that since the statute makes a decree for alimony amendable as to future installments, it should be construed to forbid by implication, amendment as to past due installments, and so to make absolute the right to such installments. And appellant would have this implication extend to temporary alimony due under an interlocutory order. Van Loon v. Van Loon holds that past due installments of permanent alimony constitute property rights of which the wife cannot be deprived; but this conclusion springs from common law principles and not from the statute of 1935.

Nothing said in that case, and nothing in the statute, as we understand it, removes accrued temporary alimony from the control of the court or gives the wife a vested right therein. See also Craig v. Craig, 26 So. 2d 881 (Fla. 1946).

* Even where a decree for alimony is subject to modification retroactively, a judgment for the arrears entered in the court that awarded the alimony, may create a vested right and become the basis of an action in another state. The presumption is that the judgment is not subject to modification and that it should be given full faith and credit. Barber v. Barber, 323 U. S. 77, 65 S. Ct. 137; 157 A. L. R. 164 (1944); Griffin v. Griffin, 327 U. S. 220, 66 S. Ct. 556 (1945). As those cases disclose, á decree made on order to show cause in the separate maintenance suit may be such a judgment.

Should the order made in the contempt proceeding be considered a final judgment for accrued alimony? It recites the proceedings and that defendant has failed to comply with the order of November* 14, 1947,

“And that said defendant, Joseph Frank, on November 18th, 1948, is in arrearage in the payment of said $75.00 per week in the total sum of $3,825.00 and having failed to show any reason whatever at said hearing for his failure to comply with said order and the Court being fully advised in the premises, it is, ORDERED, ADJUDGED AND DECREED by the Court that the said Joseph Frank be, and he is hereby adjudged in contempt of Court for his failure to comply with said order of this court entered on the 14th day of November 1947; it is further, ORDERED, ADJUDGED AND DECREED that the said Joseph Frank be, and he is hereby granted five days from the date hereof in which to purge himself of contempt by paying to plaintiff’s attorneys, Davis & Lockhart, or either of them, for the use of the said plaintiff, Anne Frank, the sum of $3,825.00.”

The court further ordered that upon Prank’s failure to purge himself of contempt by making the requisite payment within the time limited, he “be confined in jail for a period of 30 days, subject, however, at any time of said period of confinement to be released upon the payment of the said $3,825 and costs accrued incident to the execution of this order.”

The instrument on its face does not purport to be a judgment that the plaintiff recover of the defendant a sum certain, or that the defendant pay such a sum to plaintiff; but only an adjudication that the defendant is guilty of contempt. It can be the basis of an action for the sum recited in it, $3,825, only if the entry of the contempt adjudication put an end to the discretionary control by the Florida court of the accrued alimony. If it had that effect, then it gave plaintiff a vested right in $3,825 of accrued alimony, and she may enforce that right in New Jersey. But if the contempt adjudication left the arrears still subject to the control of the court, plaintiff’s position in the present action is no stronger than if her husband had not been convicted of contempt. Appellant cites no authorities in support of her thesis that the contempt judgment made absolute her title to the accruals, and we know of none that she might have cited. We perceive no ground for considering that the Florida Circuit Court has lost control over the accrued alimony.

We have examined with care the evidence, and especially the appellant’s own testimony with relation to her claim for money loaned or entrusted to respondent. The finding of the Master that only $1,200 was due her is well-founded.

The judgment of the Chancery Division is affirmed. The respondent will pay his wife’s costs including a counsel fee of $500.


source: Caselaw Access Project

license: Public Domain

text:
    NETTIE HOLLANDER, PLAINTIFF-APPELLANT, v. SMITH & SMITH, AND OTHERS, DEFENDANTS-RESPONDENTS.
    Superior Oourt of New Jersey Appellate Division
    Argued September 18, 1950
    Decided November 10, 1950.

      Before Judges Jacobs, Bigelow and Jayne.

      Mr. Bernard Freedman argued the cause for the appellant (Messrs. Koehler, Augenblick & Freedman, attorneys).

      Mr. Joseph Coult, Jr., argued the cause for the respondent, Smith & Smith.

      Mr. Jerome C. Eisenberg argued the cause for the respondents, Robert M. Taafe and John B. Hannon (Mr. Samuel D. Williams, attorney, and Mr. Israel Spicer, on the brief).
   The opinion of the court was delivered by

Bigelow, J. A. D.

The plaintiff, a widow in her late 60’s or early 70’s, brings this action against Smith & Smith, a corporation, and its servants, John B. Hannon and Eobert M. Taafe. She demands compensation for injuries which she suffered allegedly through the negligence of the defendants. Pursuant to the jury’s verdict, judgment was entered in favor of the defendants, and she appeals.

Appellant was suffering from a serious illness. Her physician, Dr. Simon, decided to send her to Beth Israel Hospital and arranged with Smith & Smith, who operate an ambulance service, to take her there. Taafe and Hannon went to her home with the ambulance and moved her to the hospital. There, upon inquiry, they were told to take her to room 519. They then carried her on a canvas stretcher from the ambulance to the receiving room, where they laid the canvas stretcher, with the plaintiff, on a wheel stretcher and started rolling the plaintiff to her room. As they were passing along the corridor, suddenly she fell from the stretcher to the floor and was severely injured. Without further introduction, let us consider the grounds whieh are urged for reversal.

Discovery Before Trial.

The plaintiff applied, pursuant to Rule 3 :34-l, for an order requiring Smith & Smith to permit plaintiff to inspect, before trial, statements that Taafe and Hannon had given to Smith & Smith’s insurance carrier concerning the accident which was the basis of the suit. The denial of the motion is presented as a ground for reversal of the judgment. The affidavit which supported the motion did not show that the statements were in the possession of defendants, but only that they had been given to the insurance company. Whether they should be considered to be within the defendants’ control, we do not attempt to decide. See, however, Hickman v. Taylor, 329 U. S. 495; 67 S. Ct. 385 (1947). Respondent argues that the statements fall within the category of those obtained in anticipation of litigation and in preparation for trial and so were privileged under Rule 3 :26-2. Whether or not the statements were strictly within the privilege, we consider that denial of the application was proper. While most of Rule 3 :26-2 is taken from the federal rules, the last sentence seems to be based on Hickman v. Taylor and the opinions in that suit fully justify the action of the trial court in the present case. The appellant showed little or no need for production of the documents. She was at liberty to take the depositions of Taafe and Hannon. They actually testified at the trial. Seemingly the only benefit appellant might derive from a perusal of the statements which they had made to the insurance company was ammunition for cross-examination. That was insufficient to require the granting of her motion.

Rulings on Evidence.

Attached to the wheel stretcher — or to the mattress which was on top of it — was a canvas belt which might be buckled around the patiént so that the patient would not roll off the stretcher. The principal item of negligence charged against the defendants was their failure to strap plaintiff to the stretcher. In order to prove a standard of care, plaintiff’s counsel asked Dr. Bernstein, a physician who practices at Beth Israel, and Dr. Somberg, a neurosurgeon, whether or not it was common practice, in transporting patients on such stretchers, to secure them with the belt so they would not fall off. Objections to the question were sustained on the ground that the custom or practice was immaterial. This ruling of the trial court seems to us erroneous. In Belleville Stone Co. v. Comben, 61 N. J. L. 354 (Sup. Ct. 1898); affirmed, 62 N. J. L. 449 (E. & A. 1898), proof of quarry methods was held proper. And in Deschamps v. L. Bamberger & Co., 128 N. J. L. 527 (Sup. Ct. 1942); affirmed, 129 N. J. L. 517 (E. & A. 1943), evidence was received "re-. specting the use of mats on the floor of the vestibules in similarly constructed places in the vicinity.” And generally see Annotation in 137 A. L. R. 611. An important question for the jury was whether, under all the circumstances of this case, the defendants’ failure to fasten the safety belt constituted a failure to use the care which a prudent person would have displayed. To aid the jury in finding the answer, evidence as to the general usage was admissible and so the objection should have been overruled.

The plaintiff took the deposition of Mr. Guinney, vice-president and general manager of Smith & Smith. ILe said that when Taafe and Hannon returned from the hospital, they told him of the accident. “I checked with them.” “We discussed it.” The trial court instructed the jury that the oral statements so made by Hannon and Taafe were not evidential as against Smith & Smith but only against the individual defendants. In our opinion, this was error. Statements of an agent are not evidence against his principal unless made in the course of the business entrusted to him. The statement, even of a general agent, although relating to the business of the principal, is Inadmissible unless the statement itself is made in execution of the agency. Barcello v. Biel, 137 N. J. L. 606 (E. & A. 1948). But words spoken in pursuance of the duty of an agent, whether he be general or special, can be proved. Arenson v. Skouras Theatres Corp., 131 N. J. L. 303 (E. & A. 1944). It is often said that such a statement is admissible only if the transaction to which it relates is pending at the time the statement is made. See 31 C. J. S. Evidence, § 343. Runk v. Ten Eyck, 24 N. J. L. 756 (E. & A. 1853). But this view is not sound; it stems from a confusion of the rules relating to res gestee with those concerning admissions against interest. Or from the fact that generally a statement made by an agent after the close of the transaction is outside the boundaries of his agency. See Wigmore, Evidence, § 1078. The report by the ambulance attendants to the general manager and their answers to his questions, were clearly given in the course of their duty and were evidence against the corporation. But the ruling was not prejudicial and a ground ior reversal, for everything that Taafe and Hannon told Mr. Guinney, according to his deposition, was conceded by Smith & Smith to be true.

The objections urged to other rulings in respect to the admission of evidence, appear to be without merit.

The Charge to the Jury.

The court declined to charge:

“When, through any instrumentality or agency under the management or control of the defendants, or their employees, there is an occurrence injurious to the plaintiff, which in the ordinary course of things, would not take place if the persons in control were exercising that degree of care which is imposed by law, as heretofore and hereinafter charged, the occurrence itself, in the absence of a reasonable explanation by the defendants, aífords prima facie evidence that there was a want of due care, and the defendants may be held liable on that showing alone.”

That is a correct statement of law. Mannon v. Odd Fellows, 97 N. J. L. 215 (E. & A. 1922). Courts have taken an expression used by Chief Baron Pollock in Byrne v. Boadle, 2 H. & C. 722; 159 E. R. 299 (Ex. 1863), res ipsa loquitur, and starting there have developed a “rule” that states a method of assessing circumstantial evidence in negligence cases. “The circumstances may be such that a reasonable man could not draw an inference of negligence or of causation, or that reasonable men could properly either draw or not draw such an inference; or that such inference is required if no further evidence is introduced. There is nothing peculiar in the situations in which the phrase is used, except the paucity of evidence.” W. A. Seavey in 63 Harv. L. R. 643. Most of our cases on res ipsa loquitur deal with the effect on the total situation of the presence or absence of some particular circumstance, such as the defendant’s control, or lack of control of the instrument that caused the injury. If it had been a bag of sand that fell off the wheel stretcher, the inference would be reasonable that it had not been placed on the centre of the stretcher, or else that the stretcher moved jerkily and not smoothly along the hall, and that those in charge were negligent. But in the actual circumstances of the case before us, an equally permissible inference is that some movement of the plaintiff herself may have precipitated her fall. While she was very sick and weak, it does not appear that she was unconscious or unable to move. Her daughter, who drove to the hospital in the ambulance with her, testified that she talked to her mother on the way to the hospital. Another daughter, who was at the hospital that morning, testified that plaintiff screamed as she fell from the stretcher. Or the plaintiff, though unconscious, by some involuntary, spasmodic movement, may have caused her own fall from the stretcher. Of course, the jury might find that ordinarily careful men would have anticipated some movement by plaintiff and would have guarded against it. Even so, the rule which the court was requested to charge, was not applicable to the case, for plaintiff’s fall from the stretcher was. not, of itself, prima facie proof of negligence. The request was properly denied. McKinney v. Public Service, etc., Co., 4 N. J. 229 (1950).

The court declined to charge that Smith & Smith is a common carrier and that, as such a carrier, it owed to its passenger, the plaintiff, a high degree of care. “Common carriers of passengers are those who undertake to carry all persons indifferently who apply for passage. To constitute one a common carrier of passengers, it is necessary that he hold himself out to the public as such.” Schott v. Weiss, 92 N. J. L. 494 (E. & A. 1918). “The test to be applied is whether the complainant by its methods of soliciting and conducting its business has held itself out to the public as a common carrier of passengers for hire.” Broadway Auto Livery v. State Board, 158 A. 375 (R. I. 1932). The facts relating to Smith & Smith’s ambulance service were undisputed. The firm had been in the business since 1905; they advertised by distributing among hospitals and doctors, memorandum pads on which was printed “Smith & Smith, Private Ambulance Service. Bigelow 3-2123.” In the instant case, Dr. Simon arranged for the ambulance by telephone. We may infer from several bits of testimony that the ambulance, or ambulances, are kept in defendant’s garage, except when out on some call. The defendant charges regular, set prices. Mr. Guinney, the general manager, answered in the affirmative the question, “If anybody in Newark were to call you up for ambulance service, if you had an ambulance and the man to run it and it wasn’t a contagious or infectious case, you would send the ambulance?” He further testified that he considered that his company was conducting a private ambulance service, “Each call we receive is a private transaction,” and that they reserved the right to reject specific calls.

Though the question is not without difficulty, it is our opinion that the evidence would not have justified a finding that Smith & Smith was a common carrier. The words of the late Justice Holmes, with respect to a taxi service operated from a garage, are pertinent. “However it may have been in earlier days as to the common callings, it is assumed in our time that an invitation to the public to buy does not necessarily entail an obligation to sell. It is assumed that an ordinary shopkeeper may refuse his wares arbitrarily to a customer whom he dislikes, and although that consideration is not conclusive, it is assumed that such a calling is not public as the word is used. In the absence of clear language to the contrary it would be assumed that an ordinary livery stable stood on the same footing as a common shop, and there seems to be no difference between the plaintiff’s service from its garage and that of a livery stable.” And the court held that the appellant in that case, in respect to its cab service operated from its garage, was not a common carrier, operating an agency “for public use for the conveyance of persons * * * for hire.” Terminal Taxicab Co. v. Kutz, 241 U. S. 257, 36 S. Ct. 583 (1916).

Cases involving ambulances are Leete v. Griswold Post, 158 A. 919 (Conn. 1932), and Merchants Transfer, etc., Co. v. Gates, 21 S. W. 2d 406 (Ark. 1929). See also concerning a lighter, The Wildenfels, 161 Fed. 864; 89 C. C. A. 58 (1908). Truckman, Faucher v. Wilson, 38 A. 1002 (N. H. 1895). Liveryman, Stanley v. Steele, 60 A. 640; 68 L. R. A. 561 (Conn. 1905). Auto livery, Haddad v. Griffin, 142 N. E. 74 (Mass. 1924). Elevator, Edwards v. Manufacturers' Bldg. Co., 61 A. 646; 2 L. R. A. N. S. 744 (R. I. 1905). Smith & Smith did not hold itself out as a common carrier; it was a private carrier only.

We have considered the other points argued and find no error in the matters complained of. The judgment must, however, he reversed because of the rejection of evidence of whether or not it was usual to strap patients to the stretcher.


author: Jayhe, J. A. D.

text:
    ALBERT DAVIDSON, PLAINTIFF-APPELLANT, v. MILTON BURSTEIN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 30, 1950
    Decided November 9, 1950.

      Before Judges McGeehaw, Jayne and Wm. J. Brennan, Jr.

      Mr. Aaron VanPoznak argued the cause for appellant.

      Mr. Samuel H. Nelson argued the cause for respondent (Mr. Abram, J. Precker, attorney).
   The opinion of the court was delivered by

Jayhe, J. A. D.

On September 13, 1949, the Federal Housing Expediter issued a certificate of eviction to the landlord-appellant authorizing the prosecution of proceedings to dispossess the tenant-respondent from the designated housing accommodations. An action was thereupon instituted by the landlord in the Essex County District Court. The tenant then applied to the Local Eent Advisory Board to review the propriety of the issuance of the certificate relating to eviction.

On November 15, 1949, during the pendency of the application before the Advisory Board a judgment for possession in favor of the landlord was entered in the action in the District Court, but the issuance of the warrant for possession was expressly deferred until January 15, 1950.

On January 9, 1950, the Office of the Housing Expediter at Newark, through its Area Eent Director, revoked the certificate relating to eviction theretofore issued for the reason that “the petition does not appear to have been made in good faith.”

On January 12, 1950, the tenant obtained from the District Court and duly served on the landlord an order to show cause why the judgment for possession entered on November 15, 1949, should not be vacated and set aside since the certificate of the Housing Expediter had been revoked and the judgment of the court had not been executed by the issuance of any warrant for possession. On February 28, 1950, the judge of the District Court set aside the judgment for possession. The nullification of the judgment constitutes the subject matter of the present appeal.

Summary dispossession proceedings in the district courts by the express terms of the statute were not appealable and could not be reviewed on certiorari save on the ground that the district court lacked jurisdiction in the particular case. R. S. 2:32-273, N. J. S.. A., Sbrolla v. Hess, 133 N. J. L. 71, 42 A. 2d 569 (Sup. Ct. 1945). That section of our statutory law was not expressly or by implication repealed by the District Court Act, R. S. 2:32-10.1 et seq., N. J. S. A. The scope of the review continues to be limited to jurisdictional questions. Opalach v. Cebulah, 2 N. J. Super. 139, 65 A. 2d 67 (App. Div. 1949). Vide, Hertzberg v. Siegel, 8 N. J. Super. 226, 73 A. 2d 840 (App. Div. 1950).

The nature of the judgment in such a summary proceeding conducted under our statutory law must also be recognized. It does not have the qualities of res judicata. Van Vlaanderen Machine Co. v. Fox, 95 N. J. L. 40, 111 A. 687 (Sup. Ct. 1920). The decisions of foreign jurisdictions are in most cases based upon a statutory footing distinctly different from ours.

Section 825.6 of the Federal Rent Regulations provides:

“(a) So long as tlie tenant continues to pay the rent * * * no tenant shall be removed from any housing accommodations by action to evict or to recover possession * * * except on one or more grounds specified in this paragraph (a), or unless the landlord has obtained a certificate in accordance with paragraph (c) of this section: * * *
* * * * * * i-
“(c) No tenant shall be removed or evicted on grounds other than those stated in paragraph (a) of this section unless on petition of the landlord the Housing Expediter certifies that the landlord may pursue his remedies in accordance with the requirements of local

The certificate embodies the condition:

“This Certificate shall remain in effect unless and until changed by the Housing Expediter or the Certificate is otherwise suspended in accordance with Rent Procedural Regulation 2.”

We cannot undertake to review the determination of the Federal Housing Expediter in the revocation of the certificate. We are specifically invited to review the action of the District Court in vacating the judgment for possession.

Nor are we in the present instance confronted with the supremacy of federal law over state law in areas of conflict since here the action taken by the District Court judge was not contrary to and in defiance of a ruling of the federal agency but taken in a cooperative recognition of it.

We proceed then to ascertain the authority of the District Court judge to vacate the judgment.

Rule 7:10 — 2 governing civil practice in the county district courts and municipal courts states:

“For good cause shown, the court upon application and notice to the adverse party, may set aside an entry of default, judgment by default or judgment after trial or hearing. Superior Court Rules 3 :59 to 3 :62 inclusive, shall govern such application.”

Rule 3 :60-2 declares that the court may relieve a party from a final judgment for the following reasons, inter alia: where (5) a prior order upon which it is based has been reversed or otherwise vacated or it is no longer equitable that the judgment should have prospective application, or where (6) there is any other reason justifying relief from the operation of the judgment.

We conclude that the judge of the District Court possessed authority to vacate the judgment and there being no doubt of the general jurisdiction of the court over dispossess proceedings between a landlord and tenant, this court will not further explore the unrelated characteristics of the case.

Appeal dismissed.


author: Eastwood, J. A. D. Jacobs, S. J. A. D.

text:
    CHARLES J. WEAVER, PLAINTIFF-RESPONDENT, v. TOWNSHIP OF NORTH BERGEN IN THE COUNTY OF HUDSON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 23, 1950
    Decided November 14, 1950.
    Jacobs, S. J. A. D., dissented.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Carmen La Carrubba argued the case for the plaintiff-respondent.

      Mr. George Bolhstein argued the cause for the defendant-appellant.
   The opinion of the court was delivered by

Eastwood, J. A. D.

The Township of North Bergen appeals from an order of - the Civil Service Commission, Department of Civil Service of the State of New Jersey, directing that the respondent, Charles J. Weaver, be restored to his position as Secretary to the Director of Public Safety.

The respondent was appointed by the Director of Public Safety to the position in question on June 7, 1944. The Civil Service Act was adopted by the voters at a referendum election held on May 13, 1947. On April 7, 1948, the Township Commission enacted an enabling ordinance, attached to which and made part thereof were schedules setting forth the complete list of the employers of the municipality, their class, the jurisdiction service and division to which the position occupied by each employee was allocated, and suggested salary ranges. In the schedules made a part of the ordinance, respondent was classified as “Secretary to the Director-of Public Safety,” at a salary of $2,800. On January 27, 1948, the Civil Service Commission so classified the respondent on its records and placed him in the exempt division. On August 3, 1949, following an election- which brought into office a new regime, his employment was terminated by the Director of Public Safety, on the ground of his alleged absence from duty for a period of five days. As the result of a hearing before the Civil Service Commission, to whom respondent appealed from his dismissal, it was determined by the Commission that the basis for his dismissal had not been substantiated by the evidence and restoration to his position was ordered.

Appellant contends that respondent’s dismissal was valid; that his position had not been lawfully created and, therefore, he was not entitled to continue therein. Respondent contends that his position was lawfully created by the ordinance of April 7, 1948, making operable the provisions of the Civil Service Act. It is not quite clear from the record as to how respondent’s position was originally created. The only pertinent testimony is that of Mr. Weaver who stated: “* * * I was made — on May 24, 1944, I was appointed by the then Director of Public Safety, Paul P. Cullum, as Secretary.” Other than the civil service ordinance, the record does not disclose that the respondent’s position was originally created by either an ordinance or resolution, or that any ordinance was adopted fixing his salary. Therefore, the question for our determination is whether the 1948 ordinance lawfully created Weaver’s position. We think it did not. In fact, this issue has been clearly and decisively disposed of adversely to respondent’s contention in several eases, the latest of which is Handlon v. Town of Belleville, 4 N. J. 99 (Sup. Ct. 1950), wherein it is held:

“But it is urged that appellant was ‘in the employ’ of Belleville when the Civil Service Act was adopted by the municipality, and so within the protection of the civil service tenure extended by .R. S. 11:21-6 to ‘all officers, clerks and employees in the employ’ of the municipality, except ‘such as may be appointed between the time of the filing of the petition for the adoption’ of the Act ‘and the holding of the referendum.’ It is said that appellant was one of the ‘employees’ of the Town when the Act was accepted and ‘his duties came “within the competitive or noncompetitive class of the civil service,” ’ and so he ‘became an employee in the classified service when civil service became operative in the town.’ The fallacy of this reasoning is patent.
“It was not designed by the cited provision to bring within the ambit of the statute persons claiming offices or positions which had no legal being, and thus to create offices and positions having no existence before. The act has no such sweep. Its aim was the security of tenure during good behavior for those of the particular class who were lawfully in the employ of the municipality, not those who had usurped authority in places having 310 legal sanction whatever. Validation was 3iot in legislative contemplation. De jure offices and employments alone were in view. This iriterpretalive pririciple has been consistently applied to this and similar statutes in the cases cited supra., e. g., Toomey v. McCaffrey; Van Brookhoven v. Kennedy, 125 N. J. L. 178 (Sup. Ct. 1940); affirmed, Id. 507 (E. & A. 1941); Moriarty v. Board of Education of Garfield, 133 N. J. L. 73 (Sup. Ct. 1945); affirmed, 134 N. J. L. 356 (E. & A. 1946); City of Orange v. Goldberg, supra."

In light of the Ilandlon case, we perceive no point in pursuing any further discussion of the issue.

Respondent contends that this appeal should be dismissed because of appellant’s failure to perfect it in compliance with Rule 1:2-5. Rule 1:2-5 (f) provides that where the appeal is from a final agency decision, the time shall ran from the date of the service of a copy of the decision. Sneh service was made here on February 23, 1950. Service of copy of the notice of appeal was acknowledged by the respondent and the Civil Service Commission on March 21st and March 23rd, respectively. The notice of appeal should have been filed on March 26th, whereas it was not filed until March 28th. To complete an appeal, it is requisite that the service of the notice and the filing thereof be accomplished within the aforementioned 30-day period and failure to do so ordinarily requires a dismissal. In re Pfizer, 8 N. J. Super. 6 (App. Div. 1950). The attorney for the appellant erroneously construed Rule 3:5-5 as allowing him ten days within which to file the notice of appeal after service thereof. The cited rule has no application to the filing of notices of appeal — it deals with the filing of pleadings and papers at the trial level. A situation similar to that prevailing here arose in the Pfizer case, supra, decided subsequent to the filing date here. Under the circumstances here, we think the ruling in the Pfizer case is particularly apt. There, the court held, at pp. 9, 10 :

“But the able lawyer who had charge of taking the appeal in this cause understood otherwise. He found in Rule 3:5-5 that papers which are served must be filed within 10 days thereafter. This rule, like all rules in Part III, seemed to apply to all divisions of the Superior Court, including the Appellate Division. Rule 3 :1 — 1. He concluded that while service of the notice of appeal must be taken within 45 days, the notice might be filed any time within 10 days after service. Although, as stated above, we disagree with his conclusion, we consider it at least plausible. There also appears to be merit in the appeal; but that subject we will discuss later. And no delay has been caused by failure to file the notice within time.”

We are con strained, therefore, to deny the application to dismiss the appeal.

The order under review is reversed, without costs.

Jacobs, S. J. A. D.

(dissenting). The respondent Charles J. Weaver served as Clerk of the Recorder’s Court from 1940 to 1944 when he was appointed Secretary to the Director of Public Safety, Township of North Bergen. The record before us does not indicate when or how the position of Secretary was first created (cf. Hoboken v. Civil Service Commission, 137 N. J. L. 728, 729 (E. & A. 1948)), although admittedly no ordinance creating the position had been adopted. In 1947 the Civil Service Act was adopted in North Bergen and in 1948 a pertinent township ordinance was duly enacted. This ordinance referred to and made part thereof three detailed schedules which had been submitted by the Civil Service Commission and embodied a complete list of the township’s employees together with the positions occupied by them, their salary ranges, their classifications, etc. The ordinance repealed earlier inconsistent ordinances and stated that it “shall take effect immediately upon passage and publication as required by law.” The first schedule listed Charles J. Weaver as Secretary to the Director of Public Safety with annual salary of $2,800 and exempt classification. In 1948 the Department of Civil Service listed Mr. Weaver in the same manner on its records.

In 1949, after a recall election, the new Director of Public Safety notified Mr. Weaver that his employment was terminated because of his absence from duty for a period of five successive days without leave. An appeal was taken and hearing was held before the Department of Civil Service. At this hearing no question was raised as to the protection afforded by the Civil Service Act (see R. S. 11:22-3; R. S. 11:22-26; Young v. Civil Service Commission, 127 N. J. L. 329 (Sup. Ct. 1941). Cf. P. L. 194.8, c. 121) or the legal sufficiency of the creation of the position of Secretary to the Director of Public Safety. The Department of Civil Service determined, upon ample evidence, “that the charge of absence without leave is not substantiated by the facts” and ordered that Mr. Weaver be restored to his position. On its appeal the township, although raising an additional point which may be considered insubstantial, rests primarily upon its contention that the position of Secretary to the Director of Public Safety was never lawfully created and consequently Mr. Weaver was not entitled to assert any claim thereto. The majority opinion accepts this contention on the ground that the recent decision of our Supreme Court in Handlon v. Town of Belleville, 4 N. J. 99 (1950), is controlling.

In the Handlon case the schedules embodied in the ordinance enacted by the Town of Belleville after its adoption of the Civil Service Act did not list Mr. Handlon as Clerk of the Recorder’s Court with salary and classification; on the contrary, the town had expressly exscinded any listing for his position prior to its adoption of the ordinance. As a result, the “deliberative process requiring notice to the public” (Handlon v. Town of Belleville, supra) which underlies the adoption of an ordinance providing for a municipal office or position was entirely missing. In the instant matter it was not missing but may be deemed supplied by the ordinance adopted in 1948 by the Township of North Bergen. Cf. McKann v. Irvington, 133 N. J. L. 63, 67 (Sup. Ct. 1945); affirmed, 133 N. J. L. 575, 576 (E. & A. 1946). This ordinance represented municipal approval of the schedules prepared by the Civil Service Commission after a comprehensive survey. It was adopted after due deliberation and upon notice which afforded to the public the measure of protection similar to that afforded in the adoption of ordinances generally; it seems to me that it ought have the desirable effect of obviating the deficiency, now being alleged for the first time, in the original creation of the apparently long standing position then placed under the protection of the Civil Service Act. I find nothing in the actual holding of the court in the Handlon case which compels a contrary conclusion and would affirm the order of the Department of Civil Service.


author: Jacobs, S. J. A. D.

text:
    ALBERT BENZONI, APPELLANT, v. DEPARTMENT OF CIVIL SERVICE AND TOWNSHIP OF NORTH BERGEN, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued October 23, 1950
    Decided November 14, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Joseph V. Collum argued the cause for the appellant (Messrs. Max A. Boxer and T. James Tumulty, attorneys).

      Mr. George Rothstein argued the cause for the respondents (Mr. Nicholas S. Schloeder, attorney).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal from an order of the Department of Civil Service which sustained the action of the Director, Department of Revenue and Finance, Township of North Bergen, laying off the appellant Albert Benzoni from his position of Collector of Accounts and directed that his name be placed upon a reemployment list for certification and appointment to the position of Collector of Accounts or comparable position as vacancies occur.

In 1942 the appellant was appointed deputy to the Collector in the Department of Revenue and Finance and was engaged principally in the collection of delinquent taxes. In 1947 the township adopted the Civil Service Act and the appellant was placed in the classified service as Collector of Accounts with annual salary of $2,300 per year. In recent years the need for special efforts in the collection of delinquent taxes evidently lessened; the aggregate time required for the performance of the appellant’s duties as Collector approximated only ten days per year; and he admittedly held a private position as salesman for a company engaged in the hardware business.

Following a recall election in May, 1949, the township’s Director of Revenue and Finance assigned the appellant to full-time duties in the Tax Collector’s office. After two weeks the appellant declined to perform these duties asserting that they interfered with his work as salesman and he was entitled to continue as Collector of Accounts. Thereupon the Director by letter dated June 22, 1949, notified the appellant that, in order to effect economies and in the public interest, his services as Collector of Accounts were no longer required and his employment was terminated.

It is clear that the termination of the appellant’s services resulted in economy; no one has been engaged to replace him and his work is being performed without additional compensation by the Tax Collector and his clerical assistants. The appellant’s suggestion, which is not adequately supported in the record, that political motivation was present would not appear to be particularly significant in the light of the evidence that his position had become a sinecure and the continuance of his employment as Collector at $2,300 per annum was contrary to the township’s interests. See Kessel v. Civil Service Commission, 130 N. J. L. 618, 619 (Sup. Ct. 1943); Santucci v. Paterson, 113 N. J. L. 192, 195 (Sup. Ct. 1934).

The appellant contends that the Department of Civil Service erred in treating the Director’s action as a separation or layoff within R. S. 11:22-9 rather than an abolition of his position within R. S. 11:22-10. We assume, solely for present purposes, the soundness of the appellant’s prerequisite assertion that his position was created by proper action of the governing body of the township (Handlon v. Town of Belleville, 4 N. J. 99, 108 (1950)) and question that it could be abolished by letter from the Director. See Pondelick v. Passaic County, 111 N. J. L. 187, 189 (Sup. Ct. 1933). Furthermore, the letter did not purport formally to abolish the position of Collector but notified the appellant that, because of the need for effecting economies, his services were not required. The Department of Civil Service properly construed this to be a separation or layoff within R. S. 11:22-9 entitling .the appellant to the protection provided therein. Cf. Kraibuehler v. Civil Service Commission, 134 N. J. L. 97, 100 (Sup. Ct. 1946). It may be noted that, even under the terms of R. S. 11:22-10, the appellant could hardly be awarded greater protection than he has received considering his flat rejection of the position tendered to him in the Tax Collector’s office and the direction by the Department of Civil Service that his name be placed upon a reemployment list for certification and appointment as vacancies occur.

The appellant further contends that he was denied the protection afforded to him, as an honorably discharged veteran, by R. S. 11:27-8 and R. S. 11:27-9. We doubt that these provisions were intended to have applicability where, as here, there was no reduction in a group of employees performing services of similar nature. In any event there has been no infringement of the limited terms of R. S. 11:27 — 8 and, in view of the full hearing afforded to the appellant before the Department of Civil Service, he has not been prejudiced by failure to hold the hearing contemplated by R. S. 11:27-9. See Klein v. Township of North Bergen, 10 N. J. Super. 128 (App. Div. 1950).

The order of the Department of Civil Service is affirmed.


author: Brennan, Wm. J., Jr., J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM F. BULACH, Jr., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 30, 1950
    Decided November 13, 1950.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. James A. Major argued the cause for appellant (Mr. Joseph H. Gaudielle, attorney).

      Mr. Waller G. Winne argued the cause for respondent.
   The opinion of the court was delivered by

Brennan, Wm. J., Jr., J. A. D.

Defendant was convicted of the crime of perjury in Bergen County Court under an indictment charging that he falsely and corruptly denied when testifying February 7, 1950, before a grand jury inquiring into the murder of one Kichard Knight, that on October 18, 1949, he had said to Police Officer Fred Merton, in substance, “The chef used a shiv on him, he got the shiv in the kitchen.” A shiv is a knife.

Defendant Bulach operated Pine Lake Lodge in Washington Township, Bergen County. IJe employed a chef named Hossack. On October 17, 1949, Hossack, Knight and the defendant wont to another tavern to attend an affair which continued into the early hours of October 18th. Bulach imbibed freely throughout the afternoon and night. Apparently Hossack and Knight also drank a good deal; they quarreled during the evening. However, when the affair ended, the three rode together in Knight's car to Pine Lake Lodge where Bulach opened his bar and the three had several more drinks. According to the defendant, they broke up about four o’clock when he left Hossack and Knight at the bar while he closed up his place. lie said that after locking up he came back to the bar and Knight was not there — ho thought Knight had gone home — and he went to his own car, where Hossack was waiting, and drove Hossack to the latter’s home in Midland Park. When he returned to Pine Lake Lodge after five o’clock he found Knight lying on the ground, bare to the waist and with a stab wound in his lower abdomen. He telephoned the Westwood police and Merton came to the lodge in a squad car.

Merton and Bulach had a conversation upon Merton’s arrival shortly after 5:30 that morning. Merton’s version at the trial was as follows:

“Q. You asked Bulach what had happened. A. Bulach what had happened.
“Q. Did Bulach answer you? A. Yes, sir.
“Q. What did he say? A. First he said, ‘Oh, come on have a drink, kid.’
“I said ‘No, I don’t want any drink, Bill.’
“I said ‘What happened here?’
“He said ‘Come on, kid.’
“I said ‘No, I don’t want to.’
“I said ‘Tell me what happened here.’
“So he put his arm over my shoulder and he said ‘Look kid, the chef did it. He did it with a shiv,’ he said, ‘It was done right here and he got the shiv in the kitchen.’
“Q. Now, Mr. Merton, for the benefit of the jury, explain what a shiv is. A. Well, it’s the common term among gangsters — a shiv is a knife.”

Fo other witness heard this conversation. It is the making on that occasion of the statement concerning the perpetrator of the crime and the instrument with which it was committed that the defendant denied when testifying before the grand jury. The substantial question on Bulach’s appeal is whether there was evidence on behalf of the State legally sufficient to supply the ingredient of corroboration of Merton’s testimony requisite to sustain Bulach’s conviction for perjury.

Eew crimes are more difficult to prove than the crime of perjury. The testimony of a single witness, Merton in this case, was not enough. In addition, proof of independent and material facts and circumstances tending directly to show that Bulach did make this statement to Merton was essential. The requirement in perjury cases of corroborative evidence of the testimony of a single witness, an exception to the rule that one witness’ testimony suffices in most cases, has been criticized by text, writers and some courts. VII Wigmore on Evidence (3rd Ed. 1940), §§ 2040, 2041; Annotation, 111 A. L. R. 825. However, the requirement is firmly embedded in our law. State v. Taylor, 5 N. J. 474 (1950); Zabriskie v. State, 43 N. J. L. 640, at 647 (E. & A. 1881); State v. Lupton, 102 N. J. L. 530 (Sup. Ct. 1926); State v. Ellison, 114 N. J. L. 237 (Sup. Ct. 1935). This does not mean that the testimony of two witnesses is required; the testimony of one witness plus proofs corroborating his evidence suffices. The two-witness rule obtaining in some states probably was not followed at any time in New Jersey, Zabriskie v. State, supra.

The substantial question is the kind or degree of corroborative evidence which must be proved; at least five different tests have been laid down in the various jurisdictions. 41 Am. Jur., “Perjury,” § 67. In this State we have adopted the test that the oath of a single witness must be supported by “proof of strong corroborating circumstances of such character as clearly to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence,” “something more than the mere weight of evidence in favor of the state,” Zabriskie v. State, supra, at p. 647; State v. Carlone, 109 N. J. L. 208, at 211 (Sup. Ct. 1932); see also State v. Lupton, supra, at p. 535; 2 Wharton’s Criminal Evidence (11th Ed., 1935), § 913.

The trial court correctly held on defendant’s motion for acquittal at the end of the State’s case that it was a question for the court in the first instance whether the corroborative evidence offered to support Merton’s testimony was legally sufficient, State v. Lupton, supra, at p. 536; Gordon v. State, 48 N. J. L. 611 (E. & A. 1886). The trial court concluded the corroborative evidence was, in law, material evidence tending to establish the falsity of Bulach’s oath, denied Bulach’s motion for acquittal, and submitted to the jury in substantially the language of Justice Nalisch from State v. Lupton, supra, the question whether the evidence adduced for that purpose by the State tended to corroborate Merton’s testimony, and, in conjunction with his testimony, tended to establish beyond a reasonable doubt that Bulaeh had wilfully and corruptly committed perjury when he denied to the grand jury that he had made the statement to Merton.

We have concluded it was error to deny defendant’s motion for acquittal and that his conviction must be reversed; the purported corroborative evidence was in our view legally insufficient as evidence corroboratory of Merton’s testimony.

We first consider the evidence given by Dr. Duffy. Knight had been taken from Pine Lake Lodge to the doctor’s office for treatment shortly after Merton’s arrival; he was then taken to the hospital where he died on October 19th. Bulach accompanied Knight and the police officer to the doctor’s office. The doctor testified that while Knight’s wound was being sutured, Bulach made a statement implicating Hossack as responsible for Knight’s injury. He frankly testified his recollection was indefinite and uncertain, that he did not “know for sure” just what Bulach had said. He said .five times in his testimony that the “gist of it,” Bulach’s statement, was “the chef stabbed Knight;” on four other occasions it was that Bulach had said “the chef must have done it.” The vital difference between the two expressions is apparent; his testimony on the whole hardly has the quality of a “strong” corroborating circumstance.

We need not stand on this ground, however, because the doctor’s evidence was deficient in a more fundamental particular — evidence is not corroborative unless it tends to prove the fact alleged to have been falsely sworn. Wigmore, supra, § 2042 (c) (3). It must relate to the substance of the evidence on which perjury is assigned, that is, in this case, it must be inconsistent with the truth of Bulaeh’s denial that he made the statement to Merton. “Until that point is reached, there is a failure to corroborate, in a legal sense,” Zabriskie v. State, supra, at p. 647. Doctor Duffy’s testimony did not “tend directly,” Wharton's Criminal Evidence, supra, to show that Bulach had made this, or indeed, any statement to Merton. That Bulach made a statement to Duffy of like tenor hardly would be helpful in supplying legal force to Merton’s testimony that a statement had been made to him, Merton. The material issue in the case was, did Bulach make the statement to Merton, as charged in the indictment, and testify falsely to the grand jury in denying that he had done so. Cf. State v. Wallace, 4 N. J. Misc. 621 (Sup. Ct. 1926); State v. Tabas, 10 N. J. Misc. 1212 (Sup. Ct. 1932). We do not see in what respect the fact that Bulach made a statement to DoetoT Duffy was corroborative of Merton’s assertion that he made a like statement to Merton some time earlier.

The character of the proof required to prove the material issue in the perjury assigned by an indictment is illustrated by the differing results reached in Stale v. Taylor and State v. Ellison, supra. These cases involved trials of indictments of defendants for subornation of perjury; the corroboration rule extends, however, to the proof that the suborned testimony was perjured although not to the question whether the perjurer was suborned. Wigmore, supra, § 2042 (c) (3), note 6. In the Taylor case, the perjurer, Patti, had falsely testified at his trial for burglary that his co-indictee, Taylor, had not participated with him in the burglary and Taylor had been acquitted; proof that Taylor had been present at the scene of the burglary two days before it was committed and had conversed with the store manager at that time at the location of the burglarized safe, was held properly admitted at Taylor’s trial for subornation of perjury as legally sufficient to support Patti’s testimony that his, Patti’s, testimony at the burglary trial had been perjured. In the Ellison case, the perjurer, Calkins, had falsely testified in an automobile accident case that he had witnessed the accident; proof that the party to the civil suit on whose behalf Calkins testified had been induced by Ellison to remain away from the courtroom while Calkins was on the stand was held legally insufficient as corroborative evidence; it had no tendency to show Calkins was not on the scene of the accident, the material issue in the perjury assigned. .

The missing ingredient in Doctor Duffy’s testimony is any evidence that Bulaeh’s statement to the doctor was accompanied by any intimation he had made the same statement to Merton. If that element had been present the doctor’s testimony would have been competent, in conjunction with Merton’s testimony, to establish the State’s case. Dodge v. State, 24 N. J. L. 455, at 461 (Sup. Ct. 1854).

The only other testimony relied on by the State is that of Oreechio, chief of Bergen County detectives. Within a day or two after Knight’s death on October 19th, and almost four months before Bulach’s testimony to the grand jury on February 7th, Bulach was questioned by the Prosecutor of Bergen County in the presence of Oreechio and Merton'. On that occasion, according to Oreechio, Merton repeated in Bulach’s presence the substance of Merton’s version of what Bulach had said to him on October 18th, implicating Hossack, and Bulach did not disavow or deny Merton’s statement but remained silent. The trial court viewed Orecchio’s testimony as admissible in corroboration of Merton within the rule which, in some circumstances, admits proof of silence as an admission against interest. State v. Kane, 9 N. J. Super. 254 (App. Div. 1950), and cases there cited. We disagree. Silence alone in anjr circumstance is a weak reed upon which to support the inference of an admission, and proof of silence, even when properly admissible, is received with caution; there are many legitimate explanations for silence. Accordingly, the competency of proof of silence is limited to silence under circumstances in which the statement not challenged by the person who remains silent is a statement which injuriously affects the rights of the person, and for that reason, is one calling for a reply, and which he will naturally deny, if he does not intend to admit it. State v. DePaola, 5 N. J. 1, at 15, 16 (1950).

We fail to see in what respect Merton’s iteration of Bulach’s alleged statement in Bulach’s presence almost four months before Bulach’s appearance before the grand jury implied anything injuriously affecting Bulaeh’s rights that called for a disavowal from him. He was not at that time charged with any crime nor did Merton’s iteration imply any accusation of criminal conduct, cf. State v. Kane, supra, or any other matter adverse to his interests. The trial court was required to determine the competency of Orecchio’s testimony in light of Bulach’s circumstances at the time of Merton’s iteration, Donnelly v. State, 26 N. J. L. 601 (E. & A. 1857), and clearly the circumstances were not such that a contradiction of Merton by Bulach was to be expected, and thus his silence could not be evidential against him. Accordingly, Orecchio’s testimony was incompetent and it was error to submit it to the jury.

We have not overlooked the fad that much of the testimony of Dr. Duffy and Oreecliio was received without objection by the defendant. However, we are privileged under Rule 1:2 — 19 (a), as amended, to notice plain errors affecting substantial rights of the defendant although they were not brought to the attention of the trial court.

Since we have concluded the motion for acquittal should have been granted on fundamental grounds, we do not find it necessary to discuss the other points of error argued in defendant’s brief.

Reversed.


author: Jayne, J. A. D.

text:
    GERTRUDE ALSTON, PLAINTIFF-RESPONDENT, v. J. L. PRESCOTT COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 16, 1950
    Decided November 10, 1950.

      Before Judges McGeehan, Jayne and Wm. J. Brennan, Jr.

      Mr. Thomas F. Meehan argued the cause for the appellant (Meehan Brothers, attorneys).

      Mr. Seymour B. Jacobs argued the cause for the respondent (Mr. Fred Freeman, attorney).
   The opinion of the court was delivered by

Jayne, J. A. D.

This appeal implicates a judgment entered in the Superior Court, Law Division, upon the verdict of a jury in favor of the plaintiff with an award of $1,500 damages.

The factual circumstances of the mishap out of which the litigation arose may be summarized. The plaintiff was a domestic servant in the employ of Mr. and Mrs. Abramson at their residence in Bayonne. On September 4, 1947. Mrs. Abramson by means of a telephone communication purchased from a neighborhood grocer some quart bottles of a laundry-fluid manufactured and bottled by the defendant and distributed for sale under the trade name “Dazzle.” Upon the copious label which surrounds the bottle and which itself is somewhat “dazzling” appears the admonition “Keep in a Cool Place.” The liquid was in the present instance confined in the bottle by the defendant by means of a rubber stopper.

The bottles were accordingly delivered by the employee of the grocer to the Abramson residence and promptly placed in a closet situate in the cellar of the residence. The following day, September 5, 1947, the plaintiff was requested by Mrs. Abramson to bleach some articles, and in undertaking that pursuit she removed a bottle of “Dazzle” from the shelf of the closet and had no more than started to dislodge the rubber stopper when it was suddenly expelled by internal pressure from the top of the bottle, instantly followed by the ejection of a large portion of the liquid contents of the bottle, some of which entered the plaintiff’s eyes. The glass bottle itself was not fractured.

It was voluntarily divulged at the trial that at some time indefinitely stated in the record, but perhaps immediately subsequent to the occurrence of the mishap, the defendant substituted metal caps with air vents on its bottles in place of the rubber stoppers.

It is asserted by the appellant that the denials of the motions for a dismissal of the action and for a judgment for the defendant were erroneous.

It is evident that, at the trial, the plaintiff sought to utilize the aid of the doctrine or rule of res ipsa loquitur. The application of the so-called doctrinal function of that rule of evidence to the circumstances of the present case is the predominant controversial issue of this appeal.

The legal concept which many centuries ago assumed the name res ipsa loquitur and which Professor Wigmore has chosen to distinguish in our law of evidence as “Antopic Proference” has been the subject of countless pages of diagnostic and discriminative comment.

Whether it is to be regarded as a doctrine, a principle, a maxim indicative of proof by circumstantial evidence, a rule of substantive or adjective law, a presumption of negligence or merely a prima facie inference are some of the characteristics concerning which a conspicuous diversity of opinion is discoverable in the English and American cases and among the competent contributors to the law reviews.

Let the inquisitive consult: Professor Prosser’s “Res Ipsa Loquitur ” 10 So. Cal. L. Rev. 459 (1931), in reply to Professor Carpenter’s article in 10 So. Cal. L. Rev. 166 (1937); Kocourek’s “Substance and Procedure,” 10 Fordham L. Rev. 151 (1941); Morgan, “Presumptions,” 12 Wash. L. Rev. 255, 279 (1937); Reaugh, “Presumptions and the Burden of Proof,” 36 Ill. L. Rev. 703, 824 (1942); Bohlen, “The Effect of Rebuttable Presumptions of Law Upon Burden of Proof,” 68 Univ. Pa. L. Rev. 307 et seq. (1920); Thayer, “Presumptions and the Law of Evidence,” 3 Harv. L. Rev. 141 (1889); Shain’s work on Res Ipsa Loquitur (1945); the opinion of Justice Erie in Scott v. The London, &c., Docks Co., 159 Eng. Rep. 665 (1865), and the opinion of Justice Pitney in Sweeney v. Erving, 228 U. S. 233, 33 S. Ct. 416, 51 L. Ed. 815 (1913); Professor Prosser’s article in 20 Minn. L. Rev. 271 (1936); Wigmore on Evidence (3rd Ed. 1940) 377 § 2509; and Hughes v. Atlantic City, &c., R. R. Co., 85 N. J. L. 212, 89 A. 769 (E. & A. 1914).

But in the consideration of the present case, we must return home, and abide by or distinguish the decisions of our own jurisdiction.

Our courts have uniformly said: “This principle is that when through any instrumentality or agency under the management or control of a defendant or his servants there is an occurrence, injurious to the plaintiff, which, in the ordinary course of things, would not take place if the person in control were exercising due care, the occurrence itself, in the absence of explanation by the defendant, affords prima facie evidence that there was want of due care.” Mumma v. Easton and Amboy R. R. Co., 73 N. J. L. 653, 65 A. 208 (E. & A. 1906).

A reading of the relatively recent decisions in this as well as in other jurisdictions discloses that the controversial issues have not arisen so often from a misunderstanding of the rule of evidence (such our own courts regard it to be), as from the problematical application of the rule to the borderline circumstances of the given case.

The progressive technological developments in modern times are introducing many new devices and operational methods which were unknown to past generations, thus broadening the field to which the applicability of the so-called doctrine is to be determined. It has been pointed out in the consideration of res ipsa loquitur that in addition to the fact of the accident and the surrounding circumstances, the tribunal has before it a great body of additional matter in the shape of common knowledge and experience. 1 Jones on Evidence (4th Ed. 1938) 38; Ezra Thayer, “Liability Without Fault,” 29 Harv. L. Rev. 801, 807 (1916).

True, it requires more than proof of the mere occurrence of an accident to set the rule in operation.

If we attempt to catalogue the present case among the numerous, it would seem appropriately to drop in the category of the “exploding bottle cases.” Such adjudications within this jurisdiction are: Noonan v. Great Atlantic, &c., Tea Co., 104 N. J. L. 136, 139 A. 9 (E. & A. 1927); Taylor v. Berner, 7 N. J. Misc. 597, 146 A. 674 (Sup. Ct. 1929); reversed on other grounds, 106 N. J. L. 469, 150 A. 371 (E. &. A. 1929); Dunn v. Hoffman Beverage Co., 126 N. J. L. 556, 20 A. 2d 352 (E. & A. 1941); MacPherson v. Canada Dry Ginger Ale, Inc., 129 N. J. L. 365, 29 A. 2d 868 (Sup. Ct. 1943); Markowitz v. Liebert & Obert, 23 N. J. Misc. 281, 43 A. 2d 794 (Sup. Ct. Comm’r 1945); Woschenko v. C. Schmidt & Sons, 2 N. J. 269, 66 A. 2d 159 (1949). Cf. Kramer v. R. M. Hollingshead Corp., 5 N. J. 386, 75 A. 2d 861 (Sup. Ct. 1950).

Perhaps it ought to be conceded that in respect of the manifestation of carelessness the exploding bottle cases are to be distinguished from those where the person with a delicate stomach belatedly discovers a piece of a suspender in his beverage, Rudolph v. Coca-Cola Bottling Co., 4 N. J. Misc. 318, 132 A. 508 (Sup. Ct. 1926), or a splinter of wood in his favorite cruller, cf. Danker v. Fischer Baking Co., 5 N. J. Super. 248, 68 A. 2d 774 (App. Div. 1949), or a fragment of glass in his baked muffin, cf. McKittrick v. Dugan Brothers of N. J., 119 N. J. L. 605, 197 A. 905 (Sup. Ct. 1938), affirmed, 121 N. J. L. 49, 1 A. 2d 331 (E. & A. 1938), or where the commodity is inherently dangerous and known to be such. Hopper v. Charles Cooper & Co., 104 N. J. L. 93, 139 A. 19 (E. & A. 1927). But Butler spoke of dividing “a hair ’twixt south and south west side.”

In the bottle cases the elements normally engaging consideration are whether the container in respect to the injurious defect continued to be under the management and control of the bottler (Dunn v. Hoffman Beverage Co., supra), and whether it was reasonably probable in all the circumstances disclosed that the dereliction of the bottler in the performance of the undertaking which he assumed, was the proximate cause of the injurious occurrence. Kramer v. R. M. Hollingshead Corp., supra.

No perplexity ordinarily arises with respect to the first element where the manufacturer or bottler delivers the product in its container directly to the plaintiff. No problematical hesitation arises with respect to the second element where the explosion is more rationally than otherwise attributable to excessive pressure within the receptacle itself.

In the case presently under scrutiny it is inferentially evident that some gaseous efflux from within the bottle forcibly expelled the stopper and in an extraordinary and perhaps in a natural spontaneous manner agitated the liquid contents.

The defendant acknowledged that it manufactured the ingredients of the bottle, was aware of its susceptibilities, chose the type of container in which it was indiscriminately to be marketed, and subjected to its intended use.

The pivotal question appertains to whether in the present case the bottle continued to be under the management or control of the defendant at the time of the accident within the modernly expanded scope of the rule of res ipsa loquitur.

A reminiscence of the reported decisions in our own jurisdiction is primarily expedient.

In Noonan v. Great Atlantic, &c., Tea Co., supra, the bottle of ginger ale was not the product of the defendant. In MacPherson v. Canada Dry Ginger Ale, Inc., supra, the court stated: “Although the proofs in the present case show that the defendant made delivery of the bottle which exploded and placed it in the storage room, there is no proof as to when delivery was made of the offending bottle. Purchases had been made as required during'the season. The testimony, however, showed that due care had been used at all times and that none but the proprietor of the business and the employee had access to the storage room after delivery of the product. The case was one of fact. The trier of the facts was at liberty to accept the testimony of due care in subsequent handling and rest a verdict thereon. -

“The proofs brought the case within the rule of Taylor v. Berner, supra, and do not show the long period of handling and rehandling which happened in the case of Dunn v. Hoffman Beverage Co., 126 N. J. L. 556.”

The decisions in Woschenko v. C. Schmidt & Sons, supra, and in Kramer v. R. M. Hollingshead Corp., supra, turned principally upon the existence of another palpable and efficient agency intervening between the defendant’s presumed dereliction and the injury.

These excerpts from the opinion in Taylor v. Berner, supra, invite attention: “The actions were to recover damages for injuries received by Susie Taylor, one of the plaintiffs, from the explosion of a bottle containing vichy, which had been sold and delivered to the plaintiff’s employer by the defendant-appellant. While not the manufacturer of the vichy, the defendant was engaged in the bottling business, and as part of such business had filled the bottle, which, on the occasion in question, exploded.

“The refusal of the motions for nonsuit and the motions for the direction of verdicts for the defendant were properly refused. The defendant, as a bottler, was obliged to use reasonable care in the filling of the bottle of vichy. With the exercise of reasonable care it is obvious that an explosion, such as here occurred, does not ordinarily result. This being true, we think the rule of res ipsa loquitur applied, and that it was permissible for the jury to infer from the occurrence of the explosion want of such reasonable care. The proofs presented bjT the defendant did not remove the cases from the consideration of that body. Hughes v. Atlantic City Railroad, 85 N. J. L. 212.”

The observations of Justice Burling expressed by him as Supreme Court Commissioner in 1945 in Markowitz v. Liebert & Obert, supra, are recognized: “It is alleged by the plaintiff that he went to the place of business of the defendant Samuel Frankinstein, trading as City Beverage Co., for the purpose of purchasing a case of defendant’s Liebert and Obert beer known under the trade name of Cooper’s Beer, and that while on the premises of the said defendant Samuel Frankinstein, in the City of Atlantic City, County of Atlantic and State of New Jersey, in the act of bending over for the purpose of picking up said case, one of the bottles exploded, causing injury to him. * * *

“From which it appears that part of the proof is requisite evidence of the exercise of due care by others in this class of cases during the period of lack of possession of the exploding bottle.”

In Dunn v. Hoffman Beverage Co., supra, it became evident that the bottle of sarsaparilla had after its purchase from the tavern been transported in the trunk compartment of an automobile a distance of thirty miles, “of which twenty miles was over a good macadam road, about ten miles over a good dirt road and about one and one-half miles over a poor, rough but passable one-way road.” In sustaining a directed verdict for the defendant, the decision emphasized that “the thing causing the accident must have been under the control of the defendant or his servant at the time of the accident.”

Res ipsa loquitur is certainly in all jurisdictions a common sense appraisal of the probative value of circumstantial evidence, and it is true that circumstantial evidence is ineffectual where the circumstances are equally consistent with freedom from wrong, and fail to reveal at least the probability that the particular injurious mishap would not have occurred without the culpable carelessness of the defendant. Vide, Galbraith v. Busch, 267 N. Y. 230, 234, 196 N. E. 36 (Ct. of A. 1935).

And so, it may be confidently stated that in the bottled beverage and food container cases the circumstance that the container had departed from the physical custody and control of the bottler or manufacturer induced the. majority of the courts to conclude that the rule of res ipsa loquitur was unavailable to the party injured by the bursting or breaking of such containers. Stone v. VanNoy R. News Co., 153 Ky. 240, 154 S. W. 1092 (1913); Wheeler v. Laurel Bottling Works, 111 Miss. 442, 71 So. 743 (1916); Cashwell v. Fayetteville Pepsi-Cola Bottling Works, 174 N. C. 324, 93 S. E. 901 (1917). More recent illustrative cases in other jurisdictions are: Alagood v. Coca Cola Bottling Co., 135 S. W. 2d 1056 (Tex. Ct. App. 1940); Ruffin v. Coca Cola Bottling Co., 311 Mass. 514, 42 N. E. 2d 259 (1942); Seven-Up Bottling Co. v. Gretes, 182 Va. 138, 27 S. E. 2d 925 (1943); Honea v. City Dairy, 22 Cal. 2d 614, 140 P. 2d 369 (1943); Stodder v. Coca Cola Bottling Plants, 48 A. 2d 622 (Me. 1947).

While the modern tendency to liberalize the availability of the res ipsa rule in such cases has not yet become generally conspicuous, it is at least perceptible in some jurisdictions, notably in the adoption of the North Carolina rule where the occurrence of similar accidents within a proximate range of time may be shown, Dail v. Taylor, 151 N. C. 284, 66 S. E. 135 (1909),'or the theory that the control required over the instrumentality causing the injury does not refer to control at the time of 'the injury, but to control at the time of the inferential negligent act or omission. Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 150 P. 2d 436 (1944).

Our former Court of Errors and Appeals in Fedor v. Albert, 110 N. J. L. 493, 497, 166 A. 191 (1933), recognized that the requirement that the instrumentality must be shown to have been under the management or control of the defendant or his servants at the time of the accident “has recently been somewhat lessened.”

And then comes to our notice the recent decision of our Supreme Court in Kramer v. Hollingshead Corp., supra, in which appears the following comment: “The first four of these cases fall within the category of the 'exploding bottle cases’ where the explosions occurred solely because of forces generated wholly within sealed containers, and the contents thereof, by reason of being sealed in, were considered for all practical p imposes as continuing within the exclusive control • of the manufacturers or bottlers up to the time of the explosions which emanated from within the containers themselves.”

The comment in the Kramer case seems to suggest the recognition of a theoretical constructive control. Such would appear to be a more reasonable attribution. The rule, if it is to continue to live in the environment of the present and future generations ought not to be recognized as a rigid and arbitrary formula but rather a pragmatical rule that adjusts itself to existing conditions and circumstances.

The notion that a manufacturer and bottler who is under the legal duty to exercise reasonable care in the pursuit of its part of that commercial enterprise for the safety of those who are anticipated to devote the product to its intended use, in the absence of any other explanatory probability can annihilate the probative or inferential function of the rule of res ipsa loquitur by merely disclosing that the article has since its preparation for sale been successively in the possession of a commission merchant or wholesale distributor and retailer before reaching the plaintiff, seems in view of the activities and experiences of the modern age somewhat absurd. This is particularly so in the absence of any evidence, circumstantial or otherwise, that the container in the course of its itinerary was subjected to any misuse.

In such cases it must be acknowledged that the cardinal and basic question is whether there was negligence by the defendant bottler while the product was under its exclusive control.and whether such negligence was the proximate cause of the plaintiff’s injury. The res ipsa rule never did mean . that “the thing causing the accident” was the accident but that the accident supplied a prima facie glimpse of the “thing” that caused it. Vide, Goldman & Freiman Bottling Co. v. Sindell, 140 Md. 488, 117 A. 866 (1922); Fisher v. Washington Coca Cola Bottling Works, Inc., 84 F. 2d 261 (1936).

In the case at bar the learned trial judge reserved decision of the motion for a dismissal of the action made at the conclusion of the plaintiff’s evidence. Whereupon it was divulged by the defendant’s witnesses that the defendant compounds the laundry fluid known as “Dazzle” which is composed of water, sodium hypochlorite, and liquid chlorine. The bottles having been filled with the fluid .to a specified level pass by means of a conveyor beneath a corking wheel which descends and compresses the rubber stopper into the neck of the bottle.

It is denied that the fluid so confined in a bottle is inherently dangerous. Whether the use of a solid rubber stopper rather than, for example, a metal cap affording a vent for the escape of emanating gases was prudent or imprudent was not definitely established.

It is evident, however, that the defendant was aware that as “the sodium hypochlorite breaks down” it “gives out oxygen. That is what does the bleaching,”' and “when it gives off oxygen then there is a greater pressure inside the bottle than the atmospheric pressure outside the bottle,” and “we get progressively more rapid action as the temperature increases” over “a certain temperature.” ■ “What temperature ?” “I don’t know just what temperature.” “You do not say anything on your label about what temperature would be considered cool and which.-” “No, we do not.” “You leave that up to the general public to determine for themselves?” “It would seem so.” The defendant did not contribute any probable explanation of the cause of the accident. There was no evidence from which it could be logically inferred that the bottle had been subjected to any immoderate heat.

The plaintiff testified that she “noticed nothing unusual about the bottle.” Her description of the occurrence is, “I had the bottle of Dazzle in one hand and I started to pull the cork out when it blew up in my face. It seemed like an explosion or something, it just went right up, pop, and went into my exes and face and blinded me.”

In such a ease we examine the circumstances disclosed within the field of the evidence adduced at the trial in search of the reasonable probabilities and dismiss the imaginary possibilities.

In the present case the predominant, if not the only, probable cause of the accident was the abnormal and unusual pressure within the bottle. The defendant acknowledges that it has exclusive control and management over the preparation of the bottle and its contents for delivery in the regular course of its business. Joly v. Jones, 115 Vt. 174, 55 A. 2d 181 (Sup. Ct. 1947).

If, as here, the bottle is not shown to have been defective, it seems to us that the inference is strengthened that the defendant was negligent in filling it with a chemical liquid that would develop increased pressure to a dangerous degree after its delivery in the usual and anticipated course of trade. The circumstances of such a dereliction of duty should have been within the knowledge of the defendant and could not have been within the knowledge of the plaintiff.

"We resolve that in the absence of any proof of an intervening probable cause disassociated from the inference of negligence on the part of the defendant, the rule of res ipsa loquitur applied to the unelucidated facts disclosed by the evidence in this case; that the action of the trial court in denying the motions for a dismissal and for a directed judgment for the defendant was without error; that the plaintiff presented a prima facie case properly to have been submitted to the jury; and that the charge delivered to the jury was unexceptionable.

The judgment is affirmed with costs.


text:
    ALICE KLEIN, APPELLANT, v. TOWNSHIP OF NORTH BERGEN, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 23, 1950
    Decided November 14, 1950.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Joseph V. Cullum argued the cause for the appellant (Messrs. Max A. Boxer and T. James Tumulty, attorneys).

      Mr. Sol Schulman argued the cause for the respondent.
   The opinion of the court was delivered by

Bigelow, J. A. D.

The appellant, who was an employee of the Township of North Bergen, was removed from her position by the Director of Public Affairs for reasons of economy, or so he alleged. She appealed to the Civil Service Commission, asserting that the real reasons were political. The Commission sustained the Director and dismissed Mrs. Klein’s appeal.

There was a recall election in North Bergen in the spring of 1949, at which Joseph J. Jialdini and three others were chosen in the place of four of the commissioners then in office. Mrs. Klein was a supporter of the men who lost the battle, but she seems to have taken no active part in the campaign, for she was unable to say whether or not Jialdini was aware of her political stand. He testified that he laid her off only for reasons of economy.

At the time of the election, Mrs. Klein was one of four office employees in the Health Burean. She was classified as senior clerk, and was paid $2,000 a year. The other three in the Bureau were the Register of Vital Statistics, a senior clerk-stenographer, and Mr. Anthony Coglianese, secretary of the Bureau. He also held a position as secretary to the Director of Public Affairs. His pay was $3,000 or $3,250, of which only $250 seems to have been charged to the Health Bureau and the balance to the Director’s office, although most of his work concerned the Health Bureau. Coglianese was the head of that office but he and the others there did practically the same work. Jialdini testified, “I don’t think there are any duties in the office that one does that the others don’t do. Everybody seems to have a knowledge of the general clerical duties in that particular office.”

When the new commission organized, Mr. Jialdini was appointed Director of Public Affairs and the Health Bureau was put in his department. He wished to have as his secretary a man chosen by himself. So he persuaded Coglianese to resign as secretary to the Director, while retaining his position as secretary of the Health Bureau. His salary in that position was then fixed at $3,000. At about the same time, Mrs. Klein’s employment was terminated. Before then, four persons shared in work of the office; after she left, the remaining three did it. It seems to be true that the payroll of the Bureau has been increased by $750, but that is only because Coglianese’s pay for work in the Bureau had not theretofore been charged against the Bureau. We agree with the Civil Service Commission that the appellant did not sustain the burden of showing that the work of the Bureau is not now more economically handled than before. Gianettino v. Civil Service Comm., 120 N. J. L. 531 (Sup. Ct. 1938); Kraibuehler v. Civil Service Comm., 134 N. J. L. 97 (Sup. Ct. 1946). The appointment of a full-time secretary to the Director doubtless adds to the over-all cost of his department. But that does not indicate to us bad faith in the claim that llrs. Klein v^as laid off for reasons of economy.

Mrs. Klein is the widow of a veteran and entitled to a veteran’s preferences. R. S. 11:27 — 1.2. Upon the reduction of the number of employees in the Health Bureau, she was entitled to the benefit of R. S. 11:27-8 and to the hearing required by R. S. 11 :27-9. Tier right to the hearing was disregarded. The purpose of a hearing under R. S. 11:27-9 is to guard the veteran’s rights under the other section. In the present instance, the facts are all before us and a full hearing was held later by the Commission on Mrs. Klein’s appeal. No sufficient end would be served by requiring the Commission now to conduct a hearing pursuant to R. S. 11:27-9. The want of the hearing under that section does not invalidate the termination of Mrs. Klein’s services, since it is dearly shown that she was not protected from removal by R. S. 11:27-8. R. S. 11:27-8 only applies when the veteran and some other employee have equal seniority, in which case the nonveteran must be the one laid off, and the veteran kept on the payroll. Since Mrs. Klein was the youngest in service of the four employees in the Health Bureau, the Director properly selected her for removal when putting into effect his economy measures.

Appellant lastly objects that her cross-examination of Mr. «Tialdini before the Commission was too restricted. We think not.

Affirmed.