author: Whineky, A. M.

text:
    Essex County Orphans Court.
    IN THE MATTER OF THE ESTATE OF JOSEPH DE CONZA, DECEASED.
    Decided November 21, 1934.
    Proctor for Karin Edstrom De Conza, petitioner for letters of administration, Fgner & Beatty (by Lloyd Beatty).

    Proctor for Teresa Leone, caveatrix, Anthony D. Appice (by Peter S. Ferlanii).

   Whineky, A. M.

Giuseppe (Joseph) De Conza died on May 16th, 1934, at the Mountainside Hospital, Montclair, New Jersey. Karin Edstrom De Conza, claiming to be his widow, applied to the surrogate of Essex county for letters of administration, which were, however, withheld because a caveat had been filed by his sister, Teresa Leone. The contested administration was then taken to the Orphans Court and was referred to Andrew J. Whinery as an advisory master to hear the contest.

At the hearing, Karin Edstrom De Conza offered evidence showing that she and the decedent were married on May 10th, 1934, the Eev. August S. Pearson, a minister of the Gospel, performing the ceremony. The marriage certificate was produced and marked in evidence. She testified as to his death, his failure to leave a will, his next of kin and his property. The caveatrix then offered to produce evidence to the effect that, at the time of the alleged marriage, her brother lacked the mental capacity to contract marriage and that the ceremony was a fraudulent imposition upon him in his last illness. Her claim is that there was no valid marriage. The proctor for the petitioner objected to the admission of any evidence of that character on the ground that it was, in effect, an effort to annul a ceremonial marriage collaterally after the death of the husband and that such a determination could not be made in a probate proceeding.

It is necessary to consider the distinction between void and voidable marriages. Where a marriage is void, no decree of any court is necessary to terminate it, because in law the marital status never existed. Thus, if a person, having married, marry again while the first spouse is alive and the first marriage remains in full force and effect, the second marriage is void without the determination of a court. If that were the situation in the case now being considered, the probate court might entertain such evidence to ascertain if there had been a marriage. 76 A. L. R. 771, note.

A voidable marriage may be terminated or dissolved only by death or the judicial decree of a competent tribunal. Zule v. Zule, 1 N. J. Eq. 96; Anonymous, 24 Id. 19, 23; Steerman v. Snow, 94 Id. 9; 118 Atl. Rep. 696; Ysern v. Horter, 94 N. J. Eq. 135; 118 Atl. Rep. 774. By statute, jurisdiction over matrimonial causes is given to our Court of Chancery. The Ordinary (Prerogative Court) has never exercised jurisdiction in such causes in New Jersey. McClurg v. Terry, 21 N. J. Eq. 225, 228. There is no statutory jurisdiction granted to the Orphans Court to hear and determine such cases.

Marriages, except those which are void ab initio, are voidable. In our state, a marriage between parties within the prohibited degrees of relationship is voidable rather than void and until such a marriage is dissolved by a court of competent jurisdiction, in a direct proceeding instituted for that purpose, it shall, in all collateral proceedings, be considered to be valid. Boylan v. Deinzer, 45 N. J. Eq. 485, 489; 18 Atl. Rep. 119. A voidable marriage is valid for all purposes until avoided or annulled; it cannot be attacked collaterally but only in a direct proceeding during the lifetime of the parties; and, upon the death of either party, the marriage cannot be impeached and is made good db initio. 18 R. C. L. 447; 76 A. L. R. 771, note. In Lau v. Lau, 81 N. H. 44; 122 Atl. Rep. 345; it was held that after the death of the husband, a voidable marriage could not be declared void in a probate proceeding so as to preclude the wife and children from inheriting. A marriage induced by fraud is voidable. Dooley v. Dooley, 93 N. J. Eq. 22; 115 Atl. Rep. 268; Ysern v. Horter, 91 N. J. Eq. 189; 110 Atl. Rep. 31.

The evidence offered by the caveatrix, seeks to avoid or annul this marriage on the ground that her brother lacked mental capacity for marriage and that the ceremony was a fraud upon him. This marriage was voidable; it was not void. The husband,, if alive, might have sought an annulment if the marriage was induced by fraud, or he might have confirmed it. His mouth is now sealed by death. The caveatrix seeks to contest her brother’s marriage in this collateral proceeding to determine the person to whom shall be entrusted the administration of the estate of the deceased husband. The marriage being voidable and the husband being dead, such evidence is immaterial and incompetent in a probate proceeding and will not be admitted.

There are no other grounds made by the caveatrix in her opposition to the appointment of the petitioner as administratrix of the estate. Letters of administration should therefore be granted to Karin Edstrom De Conza as the wife of the decedent and the person first entitled thereto.


source: Caselaw Access Project

author: Heher, J.

license: Public Domain

text:
    HARRY E. WEIR, PROSECUTOR, v. DORIS W. BRADWAY, FREDERICK W. McMURRAY AND ROLAND CORSON, BOARD OF COMMISSIONERS OF THE CITY OF WILDWOOD, IN THE COUNTY OF CAPE MAY, AND CITY OF WILDWOOD, IN THE COUNTY OF CAPE MAY, RESPONDENTS.
    Submitted May term, 1934
    Decided December 27, 1934.
    Before Justices Trenchard, Heher and Perskie.
    Por the prosecutor, Waddingion <& Mathews.

    Por the respondents, Carl Eisselman.

   The opinion of the court was delivered by

Heher, J.

Prosecutor challenges a resolution adopted by the respondent board of commissioners, on February 13th, 1934, abolishing the office of city engineer of that municipality, then held by him.

The asserted ground of the abolition was economy in municipal administration. The resolution was grounded upon the alleged “inability of municipalities to sell its bonds satisfactorily to private institutions for the purpose of obtaining money to effect municipal improvements,” and the finding by the respondent board that “it is highly problematical that no projects will be started that require the services of an engineer.”

It will be observed that there is no determination that this is a useless office, in the sense that there is no work to be done by the incumbent unless new projects requiring engineering service, not then contemplated, should be undertaken.

It seems to be conceded that the occupant of this office is protected from removal except for cause. Shortly before the adoption of the resolution in question, the director of the department of streets, parks and public property of the municipality, alter hearing, found prosecutor guilty of charges of misconduct, and removed him from the office in question. This court, upon certiorari, determined that “the charges relied upon, and the proofs to support them, are so indefinite and vague, and so unrelated to the performance of the duties of the office held by prosecutor, that they cannot be said to form a rational basis for dismissal,” and set aside the judgment. The opinion in that proceeding was filed on February 2d, 1934, about two weeks before the adoption of the resolution now attacked.

Notwithstanding the recital in the resolution, it is conceded that a major municipal engineering project, the extension of its water works system at a cost in excess of $250,000, was then about to be commenced, and consulting engineers, so called, were retained by the municipality to supervise this construction work. In fact, one of the charges preferred against prosecutor was that he “made attempts to prevent the progress of an engineering project of the city of Wildwood, contrary to the orderly progress of government.” There is no evidence tending to show that prosecutor was not competent to do this work. Even so, as the evidence demonstrates, there was need for engineering service to supervise the work ordinarily incident to municipal management.

We are convinced that the resolution in question was not adopted in good faith for the betterment of the public service, but to make effective the original purpose to dismiss prosecutor from his office without just cause. Compare Nickerson v. Board of Commissioners, Wildwood, 111 N. J. L. 169; 168 Atl. Rep. 142; Maxwell v. Board of Commissioners, Wildwood, 111 N. J. L. 181; 168 Atl. Rep. 143; Santucci v. Paterson, 113 N. J. L. 192; 173 Atl. Rep. 611. The writ will therefore issue, and may be brought on for a hearing at the ensuing term of this court.

Rule made absolute.


author: Beennán, C. P. J.

text:
    Essex County Court of Common Pleas.
    TOWNSHIP OF MAPLEWOOD, PROSECUTOR-RESPONDENT, v. LENA ALBRIGHT, DEFENDANT-APPELLANT.
    Decided December 21, 1934.
    For the prosecutor-respondent, Osborne, Cornish Scheclc (by Ervin 8. Fulop.)

    For the defendant, Jacob 8. Karlcus.

   Beennán, C. P. J.

This is a review of the conviction of the defendant had in the Recorder’s Court of the township of Maplewood, for the violation of a township ordinance which interdicts canvassing, soliciting, distributing circulars or other matter, and calling from house to house in the township of Maplewood, without having first reported to and received permission from the chief of police or the officer in charge of police headquarters so to do.

Counsel for the defendant-appellant advances among other arguments, the proposition that the conviction is invalid by reason of the fact as he asserts, that it is an attempt to interfere with the guarantees of religious freedom established by the constitution of the United States and that of the State of New Jersey. It is significant to observe that the amendment to the federal constitution contains no direct guarantee in such respect. The provision for religious liberty in the constitution of the United States is embodied in the first amendment and applies only to congress and provides: “Congress shall make no law respecting the establishment of religion, or forbidding the free exercise thereof * * *.” The constitution of the State of New Jersey provides, article 1, section 3 : “No person shall be deprived of the inestimable privilege of worshipping Almighty God in a manner agreeable to the dictates of his own conscience.”

I conceive that the provisions of the particular ordinance of the township of Maplewood under consideration do no violence to our constitutional guarantees. The United States Supreme Court, in Davis v. Beason, 133 U. S. 333, puts very nicely, what is meant by religion in the constitutional mandate, and its reasoning applies I think with equal force to the constitution of the State of New Jersey. The court said: “The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but it is distinguishable from the latter.”

The learned counsel for the defendant-appellant advances as a further argument, the proposition that the ordinance is an unwarranted and illegal exercise of the police power of the municipality. The authority for the ordinance is found in section 2 of article 14 of the laws of 1917, popularly called the “Home Eule act.” There is a broad grant of power to the municipality by the legislature, in this statute, for the preservation of public health, safety and prosperity of the municipality and its inhabitants. The defendant-appellant is a member of a religious sect with its own interpretation of the Eiblo and its own philosophy based thereon, and it happens that in this ease, without a permit from the chief of police or other officer of the municipality, she was soliciting support for the sale of pamphlets which contain an exposition of the religious principles of the particular sect and are available for a consideration either singly or in lots. It is contended by reason of the nature of the defendant’s mission and the ostensible salutary purpose that she was attempting to achieve, that she is not within the purview of the ordinance. With this proposition I am not in accord. It seems to me well within the power of the municipality to protect its householders and housewives from the unwarranted intrusion on their premises of strangers and persons not calling in the ordinary course of business by reasonable police regulation. This principle is recognized in Allen v. McGovern, 12 N. J. Mis. R. 12; 169 Atl. Rep. 345. While a rather elaborate machinery was set up by the municipality for the granting of permits under this ordinance, it is significant to observe that all this was to be done at the expense of the township and no fee whatever was exacted for any of the service involved, including the grant of the permit.

The objection to the form and substance of the record of conviction I pass by as without legal merit. The record returned into court here from the Eecorder’s Court of Maple-wood, is most complete and in my judgment legally sufficient. The conviction is affirmed.


author: Van Winicle, A. M.

text:
    Mary F. Clark, complainant, v. William A. Clark et al., defendants.
    [Decided January 5th, 1935.]

      Mr. Meyer Lobsenz, for the complainant.

      Mr. Randal B. Lewis, for the defendant.
   Van Winicle, A. M.

The parties were married in December, 1926, the husband being approximately twenty years older than the wife, who had been divorced from her first husband. Counsel for the wife stated that “the courtship was clandestine” so far as the husband’s daughter by his first wife and his friends were concerned. This daughter, Enth C. Gorman, is a defendant. The wife alleges, in her hill, that the husband abandoned her on February 22d, 1933; that on March 4th, 1933, a separation agreement was executed by her and him wherein he promised to pay her $25 a week, and to make transfers of certain personal property to her; that in May, 1933, she asked her husband to return to her, and he refused to do so; that at the time of the marriage he was possessed of property; that to avoid supporting her “he sold the tangible evidence of his wealth without consideration,” and conveyed the same to his daughter, Ruth C. Gorman; that he was well employed as a salesman; that he is now receiving a pension and refuses to do any work; that he abandoned her in May or June, 1933, and has refused and neglected to support her. And the bill states that the wife “desires” to abrogate the separation agreement. The bill prays for separate maintenance, security therefor, sequestration, injunction, discovery; and that Ruth C. Gorman be decreed to transfer the property received by her from the husband to a receiver; and also that the transfers to Ruth C. Gorman be set aside and declared to be null and void.

The husband sets up the separation agreement defensively, and annexes a copy of it to his answer. In his answer he avers that he is now receiving $20 a week from his pension, and that he. has been paying his wife one-fourth thereof “pursuant to the proportion of his earnings established by the terms of the separation agreement.” He admits that he has refused to live with his wife, but denies that he refuses to provide for her. And he contends that should the agreement not be efficacious, the sum of $5 a week, which he is paying, is reasonable maintenance.

The agreement discloses that the husband, acting under it, transferred to his wife all the household furniture in the residence which had been occupied by him and the wife and in which the wife has continued to live separately; that he agreed to sign thereafter, when called upon to do so, any instrument that would convey this residence to the wife, or to anyone she might designate; and also that he transferred an automobile to the wife. The agreement provides that the husband pay the wife $25 a week for maintenance and other necessities, the first payment to be made February 5th, 1933, and payments to be made “so long as he is receiving his present salary,” which was a salary of $100 a week, and that «if his present salary shall be reduced or shall in anywise be changed from the present amount, then the said weekly sum to be paid by the husband to the wife shall be mutually agreed upon in conformity with such reduction or change.”

The actions of the wife which led the husband to leave the home, while distressing to him, did not amount to a matrimonial offense by the wife. Then came the separation agreement, which justified the husband in his separate living. However, as the wife thereafter requested the husband to return to the home, or to resume living with her, and he refused, which request and refusal he admits were made, it must be held that the husband has unjustifiably abandoned the wife. The wife had the right, despite the separation agreement, in the absence of wrongdoing on her part, to request the husband to resume living with her, and his refusal constituted an abandonment. Power v. Power, 65 N. J. Eq. 93; 55 Atl. Rep. 111; 66 N. J. Eq. 320; 58 Atl. Rep. 192; Devine v. Devine, 89 N. J. Eq. 51; 104 Atl. Rep. 370. But the wife has not restored to the husband, nor offered to restore, the personal property now in her possession, which she received under the separation agreement; nor has she ceased to exercise dominion over the residence. So she has not abrogated the separation agreement. A separation agreement is not abrogated by the institution of a suit by a wife for separate maintenance. (See for a holding to the same effect in divorce suits, Rennie v. Rennie, 85 N. J. Eq. 1; 95 Atl. Rep. 571; Halstead v. Halstead, 74 N. J. Eq. 596; 70 Atl. Rep. 928.) The husband’s promise to pay a weekly sum, and the transfer of the property, and the dominion over the residence, were, and remain until the wife repudiates the separation agreement, in substitution of the husband’s legal duty to maintain the wife. (See Sabbarese v. Sabbarese, 104 N. J. Eq. 600; 146 Atl. Rep. 592.) The wife may not successfully invoke a decree for maintenance unless she lets go of the agreement and its benefits. However, as the parties have been fully heard, not only may a decree for separate maintenance bo made, if the wife is entitled to separate maintenance, conditioned upon her letting go of the benefits of the separation agreement, but such a decree should be made, with the purpose of obviating further proceedings.

The Fraudulent Conveyance act of 1919 (Cum. Supp. Comp. Stat. p. 647) has been held to be unconstitutional to the extent that it attempted to give this court authority to hear and determine actions for debt. Without a judgment at law or the establishment of a lien this court has no jurisdiction to entertain the bill of a creditor to set aside a fraudulent conveyance of a debtor. Gross v. Pennsylvania Mortgage and Loan Co., 104 N. J. Eq. 439; 146 Atl. Rep. 328; United Stores Realty Corp. v. Asea, 102 N. J. Eq. 600; 142 Atl. Rep. 38. However, a wife suing for separate maintenance, necessarily sues in this court, by virtue of the express provision of the twenty-sixth section of the Divorce act.

A wife’s right to set aside a transfer by her husband, fraudulent as to her, depends upon her status as a creditor, not as a wife. And the same questions .are to be answered where a wife sues to set aside a transfer by her husband alleged to be fraudulent as to her, as where any creditor of the husband sues to set aside a transfer alleged to be fraudulent as ito such creditor. Is she in fact a creditor? Has her claim been established by judgment or decree? Is the transfer fraudulent as to her? Either she is a creditor or she is not. Either the transfer is fraudulent as to her, a creditor with her claim established, or it is not. There cannot be a fraudulent conveyance unless there is a defrauded creditor. The only difference is that a wife may establish her debt against her husband in this court. If a wife obtains a decree for separate maintenance, and the husband makes the payments called for by the decree, a transfer by the husband is not to be set aside, at the instance of the wife, merely because it may be that at some future time the husband may possibly fail to make such payments.

A wife is not necessarily entitled to separate maintenance, merely because she is a wife; nor is she entitled to alimony, merely because she obtains a decree of divorce. The wife may be, for instance, a woman of large property, and the husband a penniless and helpless invalid with no possibility of means. The circumstances may be such that an abandoning husband, who is not actually maintaining his wife, may not, by any interpretation, be said to “refuse” or to “neglect” to support his wife. An abandoning husband may be a pauper, presently and potentially. The right to alimony or separate maintenance is not an absolute right; it rests in the sound discretion of the court. There must be an order or decree for alimony or for separate maintenance, before alimony or separate maintenance can be said to be due. A wife, as such, has no interest of any kind in her husband’s personal property; but where she obtains a decree for separate maintenance she thereby becomes a creditor of the husband; and, like the debt due any creditor, if the debt is paid a transfer by the husband is not to be set aside.

In a separate maintenance suit a wife may be allowed a weekly sum for her maintenance from the date of the filing of the bill. Tehsman v. Tehsman, 93 N. J. Eq. affirming, Idem. 76; 117 Atl. Rep. 34. Where an order for maintenance is made pending suit, and such order is not complied with, the decree may direct the payment of maintenance from the date of such order, the better to assure collection of the amount due under it; and where a decree so providing is made, the wife thereby becomes a creditor of the husband.

Where a decree for separate maintenance is made, and the possibilities and probabilities of the future are considered, the decree may provide, under the statute, for security for compliance with its terms. And security may be provided by or from property that has been transferred by the husband fraudulently as to the wife, as well as in other ways. If the husband pays what the decree provides shall be paid, and he has property, other than the property he has transferred, or income, from which he is probably able to continuously pay amounts to accrue under the decree, and he probably will permanently remain in the state after the decree is entered, no sufficient reason appears why security should be given.

Counsel for the defendants contends that “complainant cannot combine in her bill the two causes of action, that for maintenance, and that to set aside transfers on the ground of fraud.” Although the only authorities referred to by counsel in support of this contention are those relating to another of his contentions, namely, that “complainant cannot come into court to set aside any alleged fraudulent transfer because she has no decree or judgment or lien against the defendant,” I understand that he objects that the bill is multifarious. But it is hardly to be doubted that under the liberalizing that came with the statute and the rules now governing this court, that the old-time objection of multifariousness has been substantially done away with. Newark Brass Plate and Engraving Co. v. Citizens National Bank, 90 N. J. Eq. 282; 110 Atl. Rep. 230; Gierth v. Fidelity Trust Co., 93 N. J. Eq. 163; 115 Atl. Rep. 397. “The additional rules and procedure adopted in 1915 are not only in harmony with the rule of convenience as theretofore recognized in regard to multifariousness, but peculiarly accentuate that rule.” Metropolitan Life Insurance Co. v. N. and R. Building Co., 110 N. J. Eq. 316; 159 Atl. Rep. 792. The rule “theretofore recognized” was one of convenience resting upon a consideration of what will best promote the administration of justice without multiplying unnecessary litigation on the one hand, or drawing suitors into needless and unnecessary expense on the other. Lehigh Valley Railroad Co. v. McFarland, 31 N. J. Eq. 730; Conover v. Sealy, 45 N. J. Eq. 589 (at p. 592); 19 Atl. Rep. 616.

Even in a divorce suit, and in an annulment suit, a non-matrimonial cause of action may he joined with leave of the court (chancery rule 20). And where several issues are involved in a single cause, decrees, interlocutory or final, as to one or more of such issues may be made separately at any stage of the proceedings (chancery rule 15). Where there are several separable and distinct issues in a cause, final decrees upon one or more of such issues may be entered separately. McGill v. Trust Company of New Jersey, 94 N. J. Eq. 657; 121 Atl. Rep. 760. These things being so, no reason is perceived why causes of action may not be joined where they have a connection, where the evidence pertinent to one may be pertinent to the other or others. Circuity of action should be discouraged. A joinder of causes of action should be encouraged. There is a connection, usually, between a claim for separate maintenance, and a claim that a transfer of a husband is fraudulent as to the wife. And some of the evidence in support of the one claim may be, and probably is, in most cases, pertinent in support of the other.

While it is true that until a wife gets a decree, until she is a creditor, she may not have a transfer by her husband set aside as being fraudulent as to her, it may be that when a suit is ripe for a decree for separate maintenance, it may also bo ripe for a decree setting aside a fraudulent transfer by the husband, if both separate maintenance and the setting aside of such transfer are sued for. And it may be that after a decree is entered for separate maintenance, a wife, having been made a creditor of the husband by virtue of the decree, may be entitled thereafter to have a further decree in the same suit setting aside a transfer by the husband as being fraudulent as to her where such further relief has been sued for and the proper proof has been made. In David v. David, 111 N. J. Eq. 493; 162 Atl. Rep. 538, 1 advised a decree for separate maintenance; and thereafter, on proof that the husband had not complied with the decree which made his wife his creditor, and that he had absconded, I advised a further decree setting aside transfers which had been proved in the suit to be fraudulent as to the wife, the wife having sued in the suit for such relief.

Several mortgages, two of which were owned jointly by the husband and his deceased first wife, and in which the daughter had an ownership interest, and some shares of stock, were assigned by the husband to the daughter in 1928. There is no proof that these transfers were fraudulent as to the wife. The husband, at the time the transfers were made, was earning a good salary, with no expectation that the salary would be changed; and it was not changed until five years afterward, when he was pensioned, as a result, apparently, of the business depression and the husband’s age. The husband continued to own his interest in the residence. Unless we are to begin with an assumption that what the wife describes as a happy marriage condition in 1928, should be viewed at that time as a condition which would probably be converted into a pursuit by her of separate maintenance in 1933, no argument for the setting aside of these transfers begins to form at all. The wife knew of these transfers before she executed the separation agreement in 1933, and she in no way impugned them until she filed her bill in this suit. She was fully advised by her own counsel who drew the separation agreement, was present when it was executed, and who testified on the hearing in the suit when called by the husband.

Certain shares of stock in two corporations were transferred by the husband to his daughter shortly before the separation. Ho evidence was given that these shares have any value. If I am to indulge in surmise, I should say that they have little value and produce small dividends, or none at all. However, considering all the evidence, in determining the amount of separate maintenance, I am viewing these shares as being in the control, if not in the present possession or ownership, of the husband. And I am advising a decree for separate maintenance because I determine that the amount the husband is now paying is not a suitable amount.

When the use or the benefit of property transferred by a husband on the eve of a separation from his wife remains with him, there is both sound sense and justifying logic in holding, as I do, that the value of such property, or the yield therefrom, is to be regarded as a factor in determining the amount of separate maintenance to be paid by the husband. It was held in Dougan v. Dougan, 90 Minn. 471; 97 N. W. Rep. 122, that where the court finds as a fact that the husband has transferred property to third parties for the purpose of defrauding his creditors, that in fixing the amount of alimony to be awarded his wife, it is proper to take into consideration the value of the property thus transferred, even where the purpose may not have been to defraud the wife. And in Griffith v. Griffith (Mo.), 190 S. W. Rep. 1021, it was held that where a husband, on the eve of separating himself from his wife, executed his note to his sister as a gift, with the obvious purpose of reducing alimony, that the note should not be listed as a liability of the husband when the amount of alimony is fixed.

A memorandum specifying the details and conditions of the decree to be advised has been delivered to counsel.


author: Lawrence, C. 0. J.

text:
    CHARLES D. HYMAN, WHO SUES AS WELL FOR THE COUNTY OF MONMOUTH AS FOR HIMSELF, PLAINTIFF, v. LONG BRANCH KENNEL CLUB, INCORPORATED, A NEW JERSEY CORPORATION, DEFENDANT.
    Decided December 29, 1934.
    For the plaintiff, Charles D. Hyman, pro se (Milford J. Meyer, of the Philadelphia bar, of counsel).
    For the defendant, Turnen «£• Turnen (David H. Davis).
   Lawrence, C. 0. J.

This case was submitted to the court, at the Monmouth Oircuit, without a jury, by consent, on a stipulation of facts. It is in form a qui tarn action, sounding in debt, in which plaintiff as a common informer seeks to recover of defendant, for himself as well as the county of Monmouth, the penalty prescribed by section 8 of “An act to prevent gaming” (Rev. 1877, page 459; Comp. Stat., p. 2625), which as pertinent reads as follows:

“Fío person shall within this state, publicly or privately, erect, set up, open, make or draw any lottery prohibited by the laws of this state; and any person who shall offend in the premises shall forfeit for every such offense two thousand dollars to be recovered by action of debt, with costs, by any person who will sue for the same, in any court of record having cognizance thereof, and all penalties recovered under this section shall be appropriated one-half to the use of the county in which the action or actions for the recovery thereof shall have been prosecuted, and the residue to the informer * ❖ $

Constitutional and statutory provisions pleaded as existing and as pertaining and applicable to the case include article 4, section 7, subsection 2, of the state constitution, as amended in 1897:

“No lottery shall be authorized by the legislature or otherwise in this state, and no ticket in any lottery shall be bought or sold within this state, nor shall pool-selling, bookmaking or gambling of any kind be authorized or allowed within this state, nor shall any gambling device, practice or game of chance now prohibited by law be legalized, or the remedy, penalty or punishment now provided therefor be in anyway diminished,” also section 1 of the act to prevent gaming, supra:

“That all wagers, bets or stakes made to depend upon any race or game, or upon gaming by lot or chance, or upon any lot, chance, casualty, or unknown or contingent event, shall be unlawful;” and sections 57 and 65 of “An act for the punishment of crimes” (Pamph. L. 1898, pp. 809, 812; Comp. Stat., pp. 1764, 1766), prohibiting lotteries and pool-selling, declaring them to be misdemeanors and providing punishment therefor.

The stipulation of facts recites that on July 31st, 1934, and for a total of thirty-eight days thereafter, defendant did in .the city of Long Branch, in Monmouth county, set up and maintain a racing track for the running of greyhounds and did there operate a pari-mutuel betting system, the method of which was as follows: on each of the dates in question, defendant conducted a number of greyhound races at its track, and did print, issue and sell programs setting forth lists of the greyhounds participating in each race, the name of the dog being given, its “post” position in the race and attached thereto a mutuel number; that prior to each race on the dates mentioned, defendant did offer, barter and sell to each of a large number of persons cards, receipts or ticket in a pari-mutuel upon such race and delivered such tickets to persons purchasing them, each ticket setting forth the mntnel number of one of the greyhounds in a race, the price of $2 or $5 paid for such ticket, and an indication of whether the ticket was sold and the bet made for the greyhound to “win, place [finish second] or show [finish third]” in the race.

The stipulation further recites that defendant did then total upon each race, or add together and pool, the amount paid for tickets, and (after deducting a commission of fifteen per cent, and the odd cents of all redistribution to be made exceeding a sum equal to the lowest multiple o£ ten) did divide or redistribute the balance of said pari-mutuel to the persons having purchased tickets upon the greyhound finishing the race in the position indicated upon such tickets, or to the bettor, upon presentation of such tickets; persons having purchased tickets in such pool upon greyhounds not finishing the race in first, second or third positions, or in positions behind that indicated on the ticket, not receiving any part or portion of the pari-mutuel, nor any other money or thing of value in return for such tickets. The sole determinant as to the amount to be paid or whether anything was to be paid by defendant to any person purchasing a ticket in any of the pari-mutuels was the result of the race upon which the bet was made and the number of the “win, place or show” tickets sold therein.

It may be said in passing that the Supreme Court, in State v. Lovell, 39 N. J. L. 458, 463, held that a system of betting such as that set forth in the stipulation is within the category of a lottery, so that it would appear that defendant carried on and conducted a lottery in violation of section 8 of the Gaming act, as cited, and subjected itself to the penalties therein provided, unless permitted to do so or protected by certain acts of the legislature passed in the sessions of 1933 and 1934. And this is its defense.

It pleads the act enttiled “An act to repeal section 8 of an act entitled 'An act to prevent gaming5 (Revision of 1877), approved March twenty-seven, one thousand eight hundred and seventy-four” (Pamph. L. 1933, ch. 391, p. 1093; N. J. St. Annual 1934, 85-8), which repealer relates to the section under which the present suit is brought; and chapters 56 and 179 oí the laws of 1934, which purport to permit the leasing of public buildings and other places in which may be conducted and operated greyhound racing under the pari-mutuel system, and the licensing of persons or corporations by the state racing commission to operate and maintain tracks therefor and to permit the use of the pari-mutuel system of betting, which was declared thereby not to be gambling prohibited by law.

Defendant contends that its conduct was under legislative sanction, therefore, and since the statutes in question had not been declared unconstitutional by the court of last resort at the time, it cannot be subjected to the penalty provided by section 8 of the Gaming act, which section had been in terms repealed. In other words, it rests its case on Lang v. Bayonne, 74 N. J. L. 455; 68 Atl. Rep. 90, where it was said that “every law of the legislature, however repugnant to the constitution, has not only the appearance and semblance of authority, but the force of law. It cannot be questioned at the bar of private judgment, and, if thought unconstitutional, resisted, but must be received and obeyed as, to all intents and purposes, law until questioned and set aside by the courts;” and (at p. 459) it was pointed out that cases to the contrary fail to recognize the right of the citizen, which is to accept the law as it is written, and not to be required to determine its validity, since the latter is no more the function of the citizen than is the making of the law; also Texas Co. v. The State of Arizona, 254 Pac. Rep.; 53 A. L. R. 258, in which the question as to whether a citizen is liable for a penalty because he has in good faith followed the provisions of a law which on its face was duly made, when those parts under which he acted are afterwards held to be unconstitutional, was answered in the negative. Likewise Overpeck Land Corp. v. Ridgefield Park, 104 N. J. L. 402, 404; 140 Atl. Rep. 300.

In behalf of plaintiff, it was argued, however, that the principle enunciated in Lang v. Bayonne, supra, involved a question of public policy relating to the administrative acts of de facto officers in municipal government, the statutory authority under which they had acted having thereafter been declared unconstitutional; while here the rule is not applicable in the sense in which it was there applied, in that defendant claims to have had the right to engage in conduct inhibited by a provision of the fundamental law of the state under legislative permission in direct conflict with it.

It has been said that the granting of a right or privilege to individuals, under an obviously unconstitutional act, affords no protection to those who use or exercise it, as this does not embrace solely an administrative or public function, performed under invalid legislation, which public policy requires should be sanctioned or approved by judicial action when brought in question. In Norton v. County of Shelby, 118 U. S. 425, there is the expression that “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” See, also, Chicago I. and R. Co. v. Hackett, 228 Id. 559, and Flaucher v. Camden, 56 N. J. L. 244; 28 Atl. Rep. 82, overruled in Lang v. Bayonne (at p. 463).

It is apparent that these decisions and those in the cases cited by counsel for defendant, especially in Lang v. Bayonne, in our own court of last resort, are not in harmony, and while it is argued that the latter should not be regarded as applicable to the present litigation, it is not so clear that this is so, in view of its criticism of Horton v. County of Shelby and Flaucher v. Camden. In any event, until the Court of Errors and Appeals so limits its application, which it has not yet done, the trial court does not feel at liberty to do so, for this reason: “The interpretation given to a statute or constitutional provision by a court of last resort is binding on all departments of the government, including the legislature ; and a decision by such a court that a statute is unconstitutional has the effect of rendering such statute null and void from the date of its enactment, and not only from the date on which it is judicially declared unconstitutional. But a decision that a statute is unconstitutional, to he effective, must be distinct and positive. And if a decision declaring a statute unconstitutional is based on stipulated facts, the decision does not wipe the act from the books, but merely denies its efficacy as to the party before the court who has admitted the existence of a state of facts as to which in the opinion of the court the statute is unconstitutional” (12 C. J. 800, § 228); but where, as here, recovery is sought for the violation of a penal statute, in a qui tarn, action, by one who does not represent himself alone, and a doubt, arising on constitutional grounds, exists as to whether the violation of such statute has been sufficiently shown to justify the imposition of the penalty, it would appear to be the better practice to deny a recovery. This conclusion is reached in view of the holding and the discussion germane to the present suit in Lang v. Bayonne, supra. Judgment may accordingly be entered in favor of defendant and against plaintiff.


author: Haetshoene, C. P. J.

text:
    Essex County Court of Common Pleas.
    MILDRED CLAY, PETITIONER-APPELLANT, v. FIREMEN’S INSURANCE COMPANY, RESPONDENT-APPELLEE.
    Decided October 20, 1933.
    For the petitioner-appellant, Louis H. Frankel.

    For the respondent-appellee, Gox & Walburg.

   Haetshoene, C. P. J.

If the 1931 amendment to the Reporting act (Pamph. L. 1931, ch. 278, p. 703) is applicable, petitioner is barred. Assuming, however, that same is not applicable, but that the Reporting act applies as it existed at the time of the accident, this provides that:

“Any employer or insurance carrier failing to make report as required by this act, shall in such instance be deprived of the defense provided in paragraph 23-h.”

At that time paragraph 23-h did not refer to the one-vear limitation then existing in section 5 of the Procedural act of 1918 as amended (Pamph. L. 1921, ch. 229), as it does now, but provided that compensation claims “shall be forever barred unless a petition is filed * * * within one year.”

Accordingly, the Reporting act, at the time the petition herein was filed, did not prevent the defendant from relying upon the limitation period; and the Reporting act, at the time the accident occurred, while it prevented the defendant from relying upon section 23-h of the Substantive act of 1911 as amended, did not relieve the petitioner from complying with the limitation expressed in section 5 of the Procedural act of 1918 as amended.

Whether or not this was a mere oversight upon the part of the legislature is immaterial. Such is the fact, and the legislative will binds the court.

Petitioner is therefore barred for her failure to comply with the provisions of section 5, in that she filed her petition some eight years after the accident.

An order may be entered affirming the action of the compensation bureau accordingly.


author: La weenoís, 0. C. J.

text:
    Morris County Circuit Court.
    HAROLD SHIFRIN, PLAINTIFF, v. MAX MINTZ, DEFENDANT.
    Decided December 6, 1934.
    For the motion, King & Vogt (Harold A. Price).

    Opposed, K as din & Kasdin.

   La weenoís, 0. C. J.

On being moved for trial, inasmuch as the facts were not in dispute, the case was withdrawn from the jury and submitted to the court for determination, as involving a question of law only on a motion for a nonsuit.

Defendant was, when the accident giving rise to the suit occurred, the owner of an office building in Morristown. A firm occupying, under lease, offices in the building engaged a window cleaning company in whose employ plaintiff was to wash the windows, and the company sent him to do the work, lie had been so employed for a number of years and bv reason of his experience knew the hazardous nature of such work and the risk entailed.

Beneath the windows on the exterior of the building is a stone ledge, evidently intended for ornamental purposes, ten and a half inches wide. The windows are equipped with ordinary half sash which can be raised and lowered from the bottom and the top, and on the inside, at the time, were screens which could be raised and, if desired, removed.

Immediately preceding the accident, plaintiff had raised the screen of one of the -windows on the inside and without removing it had washed the glass. He then raised the lower sash and leaving it and the screen in that position went through the window and was standing on the ledge doing his work, while holding on with his left hand at the bottom of the raised sash, when the screen or sash, he was not clear which, suddenly dropped, causing him to release his hold and to lose his balance. The result was that he fell to the sidewalk and was seriously injured.

There were no hooks on the building outside the window to which a safety belt, sometimes used by window cleaners, could be attached. Plaintiff knew this and was familiar with the construction of the window, including the presence of the inside screen, as he had on a number of former occasions cleaned this window and had taken a similar position on the ledge while working outside.

There was no proof of any statutory or municipal regulation requiring the owner to provide the building with window hooks or other device'for the use of window cleaners. Plaintiff’s suit sounded accordingly in common law negligence for defendant’s alleged failure to provide him, as an implied invitee on the premises, with a reasonably safe place in which to do his work, and in particular to place a ledge on the outside of the building of sufficient width upon which he could stand in safety. Just how wide this ledge should have been, considering the way in which the accident happened, was not set up in the complaint, nor was it stated while plaintiff was under examination at the trial. As a matter of fact, it appeared that at other times he did his work while standing on the ledge in question without falling. There was no suggestion that either the window sash or the screen inside had been negligently constructed or placed.

Counsel for defendant on the indicated state of facts urged that there was no legal liability on the part of defendant and that no recovery could be had by plaintiff. He therefore moved a nonsuit. The inquiry naturally arising is, what was the proximate cause of plaintiff falling? Was it the sudden and unexpected dropping of the sash or screen, for the raising of which he, himself, was responsible; or was it due to the fact that the ledge did not provide him with adequate footing as claimed? It seems sufficiently clear that nothing short of a safety belt, having regard to the manner of the occurrence, attached in some wav to the building would have prevented plaintiff from falling. But defendant was under no duty to furnish window hooks, a belt, or any other safety appliance, in the absence of statutory requirement or municipal regulation. Cf. Dougherty v. Pratt Institute, 244 N. Y. 111; 155 N. E. Rep. 67. ISTor did defendant’s liability arise because of the sudden dropping of the sash or screen. No negligence can be inferred so far as he was concerned in that respect. See McLean v. Studebaker Brothers Co., 221 N. Y. 475; 117 N. E. Rep. 951; 1 A. L. R. 1551. In Bielecki v. Max Hertz Leather Co., 3 N. J. Mis. R. 375; 128 Atl. Rep. 543; affirmed, 102 N. J. L. 432; 131 Atl. Rep. 921, it was said that the owner of a building is not bound to construct it in such a way that it will not be dangerous to people who are ignorant or careless, while in Haskell v. L. H. Kurtz Co., L. R. A. 1917-F-831, it was pointed out that the owner of a building is not to be held liable to a window washer, who. with knowledge of the conditions, attempts to do the work in a dangerous manner. See, also, Saunders v. Eastern Hydraulic Brick Co., 63 N. J. L. 554; 44 Atl. Rep. 630.

Since plaintiff’s injury was not shown to have been due to the negligence of defendant, it follows that the motion for nonsuit should be granted.


author: Campbell, A. M.

text:
    Susie Piper, complainant, v. John Piper, defendant.
    [Decided December 21st 1934.]

      Messrs. Weinberger & Weinberger (Mr. Joseph J. Weinberger), for the complainant.

      Mr. Edward Thomas Moore, for the defendant.
   Campbell, A. M.

This matter is before me on petition for support and maintenance, pendente lite, of Susie Piper (hereinafter referred to as the petitioner), and of the child of the marriage, and counsel fees. Petitioner recently filed her bill for separate maintenance, alleging extreme cruelty, abandonment and refusal of defendant to support her and her child.

Authority for the relief sought by the bill is section 26 of the Divorce act (Revision of 1907—2 Comp. Stat. 1910 p. 2038), which provides:

“In case any husband, without any justifiable cause (italics are mine) shall abandon his wife or separate himself from her, and refuse and neglect to maintain and provide for her, it shall be lawful for the Court of Chancery to decree and order such suitable support and maintenance, to be paid and provided by the said husband for the wife and her children, or any of them, by that marriage, or to be made out of his property, and for such time as the nature of the case and circumstances of the parties render suitable and proper in the opinion of the court.”

In the early part of 1933 petitioner filed her petition in this court for divorce, alleging adultery. Defendant answered, and also counter-claimed for adultery. On November 1st, 1933, Advisory Master Stafford advised a decree dismissing the petition and counter-claim. Embodied in the decree is the advisory master’s conclusion that both parties were guilty of adultery. Subsequently, petitioner appealed and defendant counter-appealed. The court of errors and appeals affirmed the decree as to each appeal. Piper v. Piper, 116 N. J. Eq. 587; 174 Atl. Rep. 734.

In the filed opinion of the advisory master he states: “The petitioner, under the facts in this case, being guilty of misconduct, did not come into court with clean hands and therefore is not entitled to affirmative relief from this court. Since both parties are guilty of matrimonial misconduct, they are in pari delicto, and no affirmative relief will be given to one as against the other.” Section 28 of the Divorce act. Revision of 1907 (2 Comp. Stat. p. 2040).

The appeals were decided September 27th, 1934. Petitioner’s affidavits declare that she promptly made conciliatory overtures, her first effort having been October 5th, 1934. Defendant’s affidavit is evasive as to these overtures. His lack of frankness in this respect was undoubtedly designed to confuse and mislead the court. My conclusion is, however, that the overtures were proffered and that defendant repulsed them.

The acts of extreme cruelty, abandonment and refusal to support complained of are alleged by petitioner’s bill to have occurred July 12th, 1932. The decree of dismissal in the divorce action adjudged her to have been guilty of adultery on the same day, or on the following day. The parties have lived separate since July 12th, 1932, and their mutual offenses have not been condoned.

Petitioner contends that, irrespective of both her and defendant having been adjudged guilty of adultery, the common law obligation of support resting upon a husband is a dual obligation; he owes it to his wife and he owes it to society; that that obligation persists and continues unless and until the defendant shall divorce her. She relies upon the rules laid down in the following cases: Bates v. Bates, 2 N. J. Mis. R. 400; Van Osten v. Van Osten, Ibid. 897; White v. White, 87 N. J. Eq. 354; 100 Atl. Rep. 235.

The Bates Case, supra, decided in 1924, gave me, at first blush, considerable concern because the rule therein laid down seemed to be wholly contradictory of and in direct conflict with those expressed by the court of errors and appeals, both prior and subsequent thereto. In the Bates Case, Vice-Chancellor Learning stated: “I am unable to see how there can be any denial by.the court of the complainant’s demand for support without overruling the court of errors and appeals, and that I never knowingly attempt. The court of errors and appeals has said, and said very emphatically, that the common law obligation of support resting upon a husband is a dual obligation; he owes it to his wife and he owes it to society, and that obligation, the court says, persists and continues * * * to use the exact language of the court * * * ‘unless and until’ the husband shall divorce her.

“In the overruled case, in which that comment was made by the court of errors and appeals, the woman had been admittedly living in open adultery with another man; the husband had not seen fit to procure a divorce from her, which he could have procured, and yet the court of errors and appeals determined that, unless and until he should procure a divorce from her, he must provide for her support. If a husband doesn’t wish to provide for the support of his wife, it would seem that he must procure his divorce and thus terminate his common law obligation of support. Two early decisions in this state had been referred to in the overruled case, which held that a husband was not obliged to support his wife if she refused to live with him and share his home. As to those cases the court of errors and appeals intimated a disapproval by characterizing the rulings as oMter dicium. How, that is the extent to which the court of errors and appeals has gone, as I interpret their views, and if their views are as I interpret them, Mr. Bates is liable for the support of Ms wife unless and until he can get a divorce from her by reason of misconduct on her part, such as refusal to live with Mm, constituting a desertion, or other misconduct, which under our statute may justify a divorce. So, I can’t see how it is possible to deny to Mrs. Bates maintenance under the view of the law which the highest authority in this state defines as controlling in cases of this kind.” The facts set forth in the opinion are meagre; nothing is disclosed that indicates the nature of the charges in Mrs. Bates’ bill nor the defense interposed by her husband’s answer. Consequently, I resorted to an examination of the original pleadings.

In the opening paragraph of his opinion the vice-chancellor stated: “I still entertain the view that I suggested at the beginning of this hearing; that this case might very well have been determined on the pleadings, * * I agree with him; the bill and answer tell the whole story. Mrs. Bates alleges briefly: That about a year after the marriage her husband began to abuse and beat her; that she caused him to be indicted therefor, which resulted in his conviction; that sentence was suspended upon condition that he contribute to her support; that he paid said support money until about four years preceding the filing of the bill; that he then went to Williamsport, Pennsylvania, where he instituted divorce proceedings which he subsequently abandoned; that he had been “going around” with other women, pretending that he was either divorced or unmarried and complainant at one time saw him with a woman in Philadelphia; that at the time the divorce proceedings were pending in Williamsport, defendant was “going around” with a girl to whom it was reported he was engaged; that complainant has had no support from defendant during the past four years nor has he returned to her; and that defendant’s desertion and abandonment were without justifiable cause.

Defendant’s answer admits that his wife made the criminal complaint against him; that she thereupon refused to accept support from him or to live with him; it admits the Pennsylvania divorce proceedings; it denies that he had been “going around” with the women identified in the bill; it alleges that complainant had repeatedly refused support from him; it declares that complainant became cold and unsatisfied with married life, refused to cohabit with him and refused to prepare his meals; and that “counsel then and there advised the defendant that if his wife would not prepare the meals and cohabit with him, he was not compelled to live with her, and thereupon defendant * * * secured a boarding place which was with the entire consent and approval of the complainant.”

The foregoing resume of the bill indicates conclusively that its gravamen was abandonment and failure to support. While extreme cruelty was inferred and adultery suspicioned, neither was, of course, required to be defended against because not individuated nor specifically pleaded.

Defendant’s answer is in the nature of a general denial, and while it avers desertion there is nothing to indicate that his wife’s conduct was a “justifiable cause” for defendant having abandoned and refused to support her. Because the vice-chancellor did not cite them it is, of course, impossible to identify with certainty the cases to which he refers as having been overruled by the court of errors and appeals. The Bates Case having been decided in 1924, the only elements of identification available are that the overrulings therein referred to did, obviously, precede that date, and that the case of Whittle v. Schlemm, 94 N. J. Law 112; 109 Atl. Rep. 305, decided by the court of errors and appeals in 1920, appears to bear all the earmarks of the matters to which the vice-chancellor referred; it seems to complete the gap as a matter of circumstance rather than coincidence. But that case related solely to articles of separation in which the dum, casta clause was not included; the court held that without such provision the common law obligation of a husband to support his wife continued “unless and until” he procures a divorce from her: it asserted that the observation of the vice-chancellor as to certain cited cases was dictum because they were suits for maintenance, in each of which the defense of adultery was set up but failed of proof; it further observed that neither in Maas v. Maas, 34 N. J. Eq. 113, nor in Perkins v. Perkins, 59 N. J. Eq. 515; 46 Atl. Rep. 173, was there any adjudication in terms that adultery was a good defense in such suits, although it was treated as valid.

In Bradbury v. Bradbury (N. J. Ch.), 74 Atl. Rep. 150, on bill for maintenance, decided prior to the Bates Case, it was declared: “But now, adultery, if pleaded and proved, is a good defense to a bill for maintenance without a divorce being procured.”

In Howey v. Howey, 77 N. J. Eq. 591; 78 Atl. Rep. 696, on bill for maintenance, also decided prior to the Bates Case, the court of errors and appeals, in affirming the opinion of Yice-Chaneellor Learning, stated: “Neither a husband nor a wife is obliged to live with the other when the other has committed adultery or has by wrongful conduct brought himself or herself within the statutory meaning of extreme cruelty toward the other. Those conditions justify either spouse in separating himself or herself from the other, and as I read the decisions of the court of errors and appeals no other conditions operate as a justification. The Alimony act says that if a husband shall desert his wife without justifiable cause and fail to support her it shall be the duty of the court of chancery to award her alimony during such period as the desertion continues. 2 Gen. Stat. 1895 p. 1270 § 20. The justifiable cause or causes are the causes to which I have referred.”

From the facts appearing in the Bates Qase, supra, it is evident that the decree was advised solely because it was shown that the abandonment and refusal to support were without justifiable cause. It is obvious, therefore, that so much of the vice-chancellor’s opinion as was contrary to the rules previously laid down by the court of errors and appeals in Bradbury v. Bradbury and Howey v. Howey, supra, was a misinterpretation.

The Van Osten Case, supra, also cited by petitioner, is more easily disposed of. It is in nowise analogous to the matter sub judice. In the first place, it is a ruling on an application for alimony pendente. Secondly, as the opinion indicates, the action is founded on petition and counter-claim for divorce for the cause of desertion. The parties were still married at the time the opinion was rendered, and appear, from the facts disclosed, to have been mutual martyrs to their matrimonial flop. White v. White, supra, also relied upon by defendant, I will deal with later.

Defendant urges three reasons why petitioner is not entitled to the relief prayed for, namely: (1) The motion papers do not contain the necessary allegations and proofs; (2) petitioner comes into court with unclean hands, and (3) the abandonment, if any, by defendant was justified bjr petitioner’s adultery. The deficiencies referred to in the first reason have since been cured by the filing of proper allegations and proofs. In support of the second and third reasons he submits the following cases for consideration: Bradbury v. Bradbury (N. J. Ch.), supra; Howey v. Howey, supra; Sabbarese v. Sabbarese, 107 N. J. Eq. 184; 146 Atl. Rep. 592; affirmed, 107 N. J. Eq. 192; 152 Atl. Rep. 323; Whittle v. Schlemm, supra; Thomas v. Flanagan, 99 N. J. Eq. 198; 132 Atl. Rep. 305.

Neither party, however, has cited, nor do I find, any reported cases in this state in which a suit for separate maintenance has been adjudicated under the circumstances prevailing in the matter sub judice; where a husband and wife, as the result of their previous divorce proceeding, have each been adjudged guilty of matrimonial misconduct. Petitioner is, apparently, predicating her application on the theory that this court might be urged somehow to set off and balance against each other the mutual misconduct of herself and the defendant and thus leave her with all her original marital rights and claims unimpaired. No such principle exists in equity. The conclusions arrived at in this case must be based upon the meaning and application of the words “justifiable cause,” amplified by application of the “clean hands” maxim.

In White v. White, supra, the wife’s action for separate maintenance prevailed because it was held that, her husband having consented to or connived at her adultery, his subsequent abandonment of and refusal to support her was not such a “justifiable cause” as would relieve him of that obligation. Mr. Justice Black, speaking for the court of errors and appeals, stated that “justifiable” means warrantable, defensible; that a “justifiable cause” which will relieve the husband from his legal obligation to maintain and provide for his wife is a cause which he has not helped to create; a result that has not been produced, in part at least, by his own misconduct; an adultery of the wife, free from legal guilt or connivance on his part. Mr. Justice Black further stated that:

“She is still, in law, his wife, and has certain legal rights, one of which is a right of support from her husband, unless it is cut off by the statute. In morals he cannot shield himself from the performance of that duty by his own wrongful conduct toward her which helped to bring about her unfaithfulness.” See, also, Cavileer v. Cavileer, 94 N. J. Eq. 160; 119 Atl. Rep. 101. In the case at bar there was neither consent nor connivance upon the part of the defendant; there was no wrongful conduct of his which helped to bring about petitioner’s adulterous act. Desertion, extreme cruelty and adultery are the “justifiable causes” in this state which will excuse a husband from maintaining and providing support for his wife. Any of these causes, if pleaded, is a good defense to a bill for separate maintenance. Wo obligation is imposed upon a husband to divorce his wife for any of these causes, in order to free himself from the duty to support her, if he prefers not to sue for divorce, but simply to defend himself against her suit for maintenance. Bradbury v. Bradbury, supra; Howey v. Howey, supra; Sabbarese v. Sabbarese, supra.

And now, applying the maxim, “He who comes into equity must come with clean hands:” This maxim is sometimes expressed: “He that hath committed iniquity shall not have equity.” Pom. Eq. Jur. § 397.

Petitioner being the actor, the burden of the maxim rests exclusively upon her; the force of the maxim cannot be applied to the defendant because the invocation of the court was not sought by him; he did not “come” into court * * * he was brought in. Thomas v. Flanagan, supra.

Mr. Justice Trenchard, speaking for the court of errors and appeals, in Vulcan Detinning Co. v. American Can Co., 72 N. J. Eq. 387; 67 Atl. Rep. 339, concisely defines the rule to be: “* * * ‘unclean hands,’ within the meaning of the maxim of equity, is a figurative description of a class of suitors to whom a court of equity as a court of conscience will not even listen, because the conduct of such suitors is itself unconscionable * * * i. e., morally reprehensible as to known facts.”

Equity assumes that when a suitor with unclean hands seeks its aid, he has been guilty of conduct in violation of the fundamental conceptions of equity jurisprudence, and, consequently, refuses him all relief with reference to the transaction in question; it declares that whenever a suitor who, as instigator of an action seeking some remedy, has willfully violated conscience, good faith or other equitable principle in his prior conduct relating to the same transaction, then he will be repelled from the forum whose foundation is good conscience.

Petitioner’s right to affirmative relief is based on the marriage status which she has iniquitously violated. The rule of “unclean hands” does not favor an assertion of marital obligations which is preceded by their violation. This being so, and it appearing that petitioner has been guilty of misconduct which is made a bar under section 26 of the Divorce act, supra, i. e., “justifiable cause,” I cannot see how it justifies or excuses her misconduct, or changes the nature of her act, or avoids the consequences thereof, or in any manner contributes an element of support to her cause of action for maintenance by alleging that the defendant, too, has been adjudged guilty of a similar violation. And, especially is it so where, as here, there is no claim by petitioner that the misconduct of the defendant, even as a moral influence, conduced to or mitigated the evil of her offense.

Of course, if the defendant were seeking affirmative relief the same rule would be applied to him that is being urged against petitioner. But he is not invoking the conscience of this court; the petitioner alone is seeking relief, and in my opinion the only material question relates to her adulterous act; she has shown neither a reason valid in conscience nor a legal right for the assistance which she seeks; nothing has been shown in this proceeding that relieves her of the responsibility of her own act. Where both are equally in the wrong, defendant holds the stronger ground.

In Thorne v. Mosher, 20 N. J. Eq. 257, the court held: “A party is not allowed to take advantage of an act done, or the omission to do it, where such act or omission was designedly caused by himself.”

In Neubeck v. Neubeck, 94 N. J. Eq. 167; 119 Atl. Rep. 36, Mr. Justice Trenchard, speaking for the court of errors and appeals stated: “While the maxim, Tie who comes into equity must come with, clean hands/ has a very wide application, it has also its limitations. It does not repel all sinners from courts of equity, nor does it apply to every unconseientious act or inequitable conduct on the part of complainants. The iniquity which deprives a suitor of a right to justice in a court of equity is not general iniquitous conduct unconnected with the act of the defendant which the complaining party states as his ground or cause of action, but it must be evil practice or wrong conduct in the particular matter or transaction in respect to which judicial protection or redress is sought.” The particular transaction in which petitioner is seeking relief in the matter sub judice is the previous divorce proceeding and in which she and defendant were declared to be in pari delicto.

Petitioner urges that it would create an anomalous situation to permit the marriage bond to remain undissolved and she not entitled to support. Hot so. Having violated the marriage status without the collusion or connivance of her husband she is bound by the consequences of her act; the Divorce act, supra, as well as the construction placed thereon by the court of errors and appeals and this court, relieves the husband, as part compensation for his wife’s wrongful conduct, of one of the essential elements of the marriage obligations imposed upon him, i. e., his common law and statutory duty to support her. In this respect the court said, in Lynde v. Lynde, 54 N. J. Eq. 473; 35 Atl. Rep. 641; affirmed, 55 N. J. Eq. 591; 39 Atl. Rep. 1114: “Consummated marriage carries with it rights and duties which, so far as a true and faithful wife is concerned, can morally end only with the life of one of the parties. Her right to support and maintenance continued so long as it is just that she shall retain it.”

We must not be misled by any supposed hardships of the case. The conduct of the defendant in this transaction justly excites our indignation. One’s sympathies are naturally with, the wife because she has, unfortunately, engulfed herself into a situation from which she cannot hope to escape during her lifetime or until defendant relents and takes her back. But we may not violate a single principle upon which equity is administered to vindicate the one and punish the other.

“The old eases,” says Mr. Justice Story, “often gave relief both at law and in equity, where the party would otherwise derive an advantage from his iniquity. But modern doctrine has adopted a more severely just, and probably politic and moral rule, which is to leave the parties where it finds them, giving no relief and no countenance to claims of this sort.” 1 Story Eq. Jur. § 298 note 2.

This court determines it to be a settled principle of law in this state that when both husband and wife have been adjudged guilty of adulterous conduct, unaccompanied by condonation, collusion or connivance, a subsequent suit by the wife for separate maintenance will not avail against the husband’s defense of justifiable cause.

' In the divorce proceedings between these parties (Piper v. Piper, supra), it was decreed, among other things, that petitioner did not come in with “clean hands.” She has not since become purged thereof. For the reasons herein stated I conclude that defendant’s abandonment of his wife, and his refusal to maintain and provide for her, was for justifiable cause. An order will be accordingly advised dismissing her petition.

It is apparent that the order providing for the care and custody of the infant child of the parties, as well as visitation, advised by Advisory Master Stafford, and approved by the court of errors and appeals, has been changed by the defendant without order of this court. I will hear the parties as to this upon proper notice.


author: Cleary, S. C. C.

text:
    JAMES S. RAFFERTY, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF HENRY L. WILSON, DECEASED, PLAINTIFF, v. PUBLIC SERVICE INTERSTATE TRANSPORTATION COMPANY; ARTHUR THOMPSON SHIPLEY, DEFENDANTS. JAMES J. CURRAN, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF FREDERICK G. FLEMING, DECEASED, PAINTIFF, v. PUBLIC SERVICE INTERSTATE TRANSPORTATION COMPANY, AND ARTHUR THOMPSON SHIPLEY, DEFENDANTS.
    Decided December 4, 1934.
    For the plaintiffs, John J. Raferly and Philip Blacker.

    For the defendant, Henry H. Pryling.

   Cleary, S. C. C.

This is the defendants’ rule to show cause why two verdicts rendered in favor of the plaintiffs and against the defendants should not be set aside on the grounds that the verdicts returned by the jury are illegal.

The cases were tried at the Middlesex Circuit, and involved the deaths of two people. The suits were started separately, but for convenience and upon consent of all the parties, the eases were tried together. In each case, there were two defendants, one, the master and the other the servant. The jury returned a verdict in favor of the plaintiff in each case and assessed the damages in one case at twenty thousand dollars ($20,000) against the master, the Public Service Interstate Transportation Company, and one thousand dollars ($1,000) against the defendant driver, Arthur Thompson Shipley. In the other ease the verdict was twelve thousand dollars against the defendant the Public Service Interstate Transportation company, and one thousand dollars ($1,000) against the defendant driver, Arthur Thompson Shipley.

These verdicts are both attacked on the grounds above stated, and the court is asked to set the verdicts aside. The contention of the plaintiff in each case is that although it is admitted that the verdicts, as far as the apportionment of damages is concerned, are illegal, that as far as the question of liability is concerned, the verdicts should stand, and that the rule, if allowed, should bo limited to damages only.

In support of this contention, many cases are cited showing that the trial court, on a rule, may limit the new trial to damages only. With this contention, there can be no quarrel as an academic question. The difficulty is in the appli cation of it to a given set of facts. If, in any given case, the damages returned are attacked on the ground of either inadequacy, or exeessiveness, the usual question involved is one of mistake, with, in some cases, the added question of passion, or prejudice. If it is merely a question of mistake, the court will correct this, either by an adjustment of the amount, or a new trial as to damages only. If, in a given ease, the verdicts seem to be the result of passion or prejudice, while the court may exercise its discretion and limit the new trial to damages only, I do not approve of such action. It seems to me to be inconsistent to say that a verdict rendered by a jury, a part of which is the result of passion or prejudice, should be allowed to stand in part, and set aside in part. It does not seem to me that one can consistently say that a jury allowing itself to be influenced by such motives, could properly pass upon any phase of any given case. This seems to mo to be more evident where the question involved is that of the legality of the verdict, which is the question involved in this case. Here the jury, after being instructed by the court upon two separate occasions, arbitrarily and illegally assumes to apportion the damages between two defendants, and in so doing, must have arbitrarily attempted to apportion Ihe degrees of negligence. This, of course, they cannot do, nor can the courts countenance any such attempt by a jury to do so.

The question involved here is not limited to the damages only, to be judged only as to inadequacy, or excessiveness; it involves the question of legality, and an illegal verdict returned by a jury under such circumstances as prevailed in this case, cannot be sustained in any of its parts. This necessarily leads to the conclusion that the rule to show cause should be made absolute, and that a new trial be granted both as to liability, and damages.

The rule will be made absolute.


author: Per Curiam.

text:
    J. ALDEN McLEAN, COLLECTOR, ETC., RELATOR, v. DELAWARE, LACKAWANNA AND WESTERN COAL COMPANY, RESPONDENT.
    Argued and Decided January 16, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    For the relator, Edward P. Stout.

    For the respondent, William II. Osborne (George B. Asiley, on the brief).
   Per Curiam.

At the argument the court directed the immediate entry of judgment for the relator on the demurrer, to the end that appeal might be taken forthwith. (See Kenny v. Hudspeth, 59 N. J. L. 504, 529; 37 Atl. Rep. 67), and argued at the coming term of the Court of Errors and Appeals, if so ordered by that court.

As pointed out in the memorandum filed by the Chief Justice when awarding the alternative writ herein, and in the writ itself, a tax was imposed on personal property of the relator (consisting of coal), for 1932, which was appealed, first to the county board, then to the state board, and reduced to $24,150.59 of which $9,105.84 remains unpaid; and a similar tax for 1933, similarly appealed and reduced, and standing unpaid at the sum of $19,368.07. The defenses set up in the return are two fold: (1) That although (as conceded at the argument), all the coal taxed has, in the course of two years been sold and removed, there remain certain items of personal property which should be distrained and sold, and the remedy in that direction first exhausted, and (2) that as the act of 1918, at page 848, section 202, provides that “the persons so assessed for personal property shall be personally liable for the taxes thereon,” it contemplates, after exhaustion of the remedy by distress, an action at law in the nature of an action of debt, to recover the tax unpaid. We think that neither point is well taken; and that mandamus, in the present case, was properly invoked.

As to the first proposition, it is frankly conceded that a distress and sale thereunder would not produce any substantial amount in reduction of the tax due. The remedy is distinctly inadequate; and the case in this aspect is therefore within the rule laid down in Person v. Warren Railroad Co., 32 N. J. L. 441.

As to the second proposition: The act does not say that the tax is recoverable as a debt. What it does say that a person “assessed for personal property shall be personally liable.” We may assume, for present purposes, without deciding, that this clause includes corporations. As to natural persons, the remedy provided by section 606 of the same act, after failure of distress proceedings, is summary imprisonment. Pamph. L. 1918, p. 874. As a corporation cannot be imprisoned, the question arises, what, on failure or manifest inadequacy of a distress, is available as a means of enforcing payment ? If distress will be ineffective, will a judgment and execution fare any better? The natural answer is in the negative. Eecurring to the Person case, we have a situation here that is parallel in all respects. In that case, as here, the corporation attacked the tax byTegal proceedings and pending the final adjudication the taxed personalty disappeared and the other available property was inadequate. Counsel draw the distinction that in the earlier case there was a certiorari and in this case an appeal to the cormty board and then to the state board. We think it is a distinction without a difference, and that, as in the Person ease, a voluntary submission to the statutory tribunals connotes an amenability to suitable legal process to enforce their adjudication.

In Wrightstown v. Salvation Army, 97 N. J. L. 89; 123 Atl. Rep. 607, the late Mr. Justice Kalisch, sitting alone, held that a suit at law for a tax, apparently as a debt, would not lie in case of a tax on real estate. The inference he drew may have been that because of the language of section 202 such suit was contemplated by the legislature. We think it does not follow; and that as one may be “personally liable” in mandamus as in an ordinary suit at law, and effectively so only in an action of mandamus, and that remedy is sustained by an old and well considered decision of this court, the relator is entitled to judgment on the demurrer.


author: Bodine, J.

text:
    JOSEPH YOCUS, PLAINTIFF-RESPONDENT, v. LEHIGH VALLEY RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted October 12, 1934
    Decided January 21, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    Por the defendant-appellant, Collins & Corbin (Edward A. Marlcley and Howard F. McIntyre).

    Por the plaintiff-respondent, Feinberg & Feinberg (Jacob Feinberg.)

   Bodine, J.

The plaintiff’s action was brought to recover damages for injuries sustained by being struck by a steel column which the defendant’s employes were lowering on to a barge where he was working at Pier No. 6, Jersey City. He was employed by William Spencer & Son.

The complaint, in part, alleges that the injuries were suffered by reason of the starting of the traveling crane carrying the column causing the injury, without giving due warning of the movement, and because defendant failed to exercise due care for plaintiff’s safety while making the movement in question. The proofs indicate that the column, while being carried by the crane, struck a cable upon the barge where plaintiff was working. The impact caused a sudden dropping of the column striking the plaintiff. If the movement was not negligent, there was evidence of such a lack of care for the plaintiff’s safety that this question, under the pleadings and proofs, was one for the jury.

The issues of negligence and contributory negligence were submitted to the jury in a properly balanced charge. Even though the plaintiff could and did see the column being carried by the crane as it approached the barge, there was no obligation upon his part to assume that it would be so handled by the crane engineer as to engage a cable and thus fall, causing his injuries. The issues were for the jury and not for the court.

There can be no doubt that there were risks inherent in plaintiff’s employment, which he assumed as between himself and his employer, but as the trial court quite properly pointed out, the negligent acts of third parties stand upon a different footing.

The court, in his charge, did mention that the defendant regarded the accident as the result of an act of God. The expression does seem unfortunate, but the only direct proof negativing the plaintiff’s account of the occurrence was an admission said to be made shortly thereafter that it was an accident. However, as the whole charge is read it would seem that the defendant was not prejudiced.

The court, having explained to the jury that the plaintiff must prove by the greater weight of evidence his right to recover, directed them, if they concluded he was entitled to recover, to consider the proofs adduced upon the question of damages. He also said that they might consider “whether or not his earning power has been permanently impaired as a direct or as a proximate result of the happening of this accident.” It is said that there was no proof of impairment of earning capacity. The change of employment and other proved facts, we think, made the question one for the jury to determine. But at all events, they were told that they must determine the question of damages from the proofs adduced. It does not seem that the jury could, if they followed the court’s instructions, award damages for any element not proved.

Other reasons for a reversal suggested in the appellant’s brief have been carefully considered but they require no further discussion.

The judgment is affirmed.


author:
John C. Wegner,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MICHAEL CASTAGNO, PETITIONER, v. LAVINE EXPRESS, RESPONDENT.
    Decided January 15, 1935.
    For the petitioner, Joseph H. Kenny.

    For the respondent, J. Webster Jones.

   A formal petition having been filed claiming compensation under and by virtue of the Workmen’s Compensation act of the State of New Jersey, with supplements thereto and amendments thereto; and an answer having been filed and the parties having appeared before me this 18th day of July, 1934, and having heard the facts and circumstances relating thereto, I, John C. Wegner, a deputy commissioner of New Jersey, do hereby find and determine as follows:

1. That the petitioner was employed by the respondent as a helper on an automobile truck and that on March SSd, 1934, his duties consisted of working on said automobile as a helper.

3. That on or about March 22d, 1934, petitioner sustained permanent injury as a result of the accident and that the said accident consisted of petitioner catching his hand between two barrels while unloading and that said accident arose out oí and in the course of petitioner’s employment.

4. That the petitioner had actual knowledge of the occurrence of said injury.

5. That as a result the petitioner received injuries to his right hand causing no temporary disability but received a disability permanent in quality and partial in character.

% t]i sji sH ❖

7. I further find that the contract of hire signed by the petitioner at the time of his employment by the respondent is illegal. Under the New Jersey Workmen’s Compensation act neither employer nor employe has the right to make any other arrangement than that set forth in section 2 of the Compensation act in lieu of the legal liability set forth in section 1. The law specifically states that no such agreement shall be valid. Contract of employment in this state must be controlled by the federal statute or by section 1 of the Compensation law of New Jersey or by section 2 of the said law. Attention is directed to the case of John Hancock Mutual Life Insurance Co. v. Lieb et al., 165 Atl. Rep. 720.

The contract of hire sets forth that the respondent is a corporation under the laws of the State of New Jersey engaged in the business of “common carrier.” The case of Higgins v. Erie Railroad, 89 N. J. L. 629; 99 Atl. Rep. 98, holds that express companies engaged in transporting merchandise for hire is not a “common carrier by railroad.” The dicta in this case reads as follows: The Wells Fargo Express Company manifestly does not fall within the purview of the act of congress relied upon by the plaintiff for which it is not a common carrier “by railroad” which class above the statute applies and therefore as to this defendant the nonsuit was correct. The contract of hire further uses the term interstate commerce. If reference is made to Federal Employers’ Liability act it will be noted that same restricts interstate commerce carriers solely to steam railroads and the ruling of the United States Supreme Court in the case of Wells Fargo Express Co. v. Taylor, 254 U. S. 175, so holds.

8. I further find that the release executed by the petitioner is illegal as it is contrary to the Workmen’s Compensation act and it further does not stipulate the sum certain therein.

It is therefore on this 15th day of January, 1935, ordered, that judgment final be entered in favor of the petitioner, Michael Castagno, and against the defendant, Lavine Express.

*******

John C. Wegner,

Deputy Commissioner.