author: Bkogan, J.

text:
    ANNA E. MOORE, PROSECUTOR, v. FIRE AND POLICE PENSION FUND COMMISSION OF THE CITY OF PATERSON, RESPONDENT.
    Submitted June 9, 1932
    Decided June 14, 1932.

      For the prosecutor, Randall B. Lewis.

    For the respondent, Salvatore L). Viviano.

   Bkogan, J.

The writ brings np the decision of the fire and police pension fund commission of the city of Paterson denying the application of Anna E. Moore for a pension as the widow of the late Peter Moore, police chauffeur of the police department of the city of Paterson and the matter was, under the statute, brought on before me as a single justice of the Supreme Court.

The return of the respondent discloses the following facts: that the applicant, Anna E. Moore, a resident of Massachusetts, appeared before the pension fund commission on September 9th, 1930, and made application for pension as the widow of Peter Moore, who died in July, 1925, while a member of the police department and while in good standing as a member of the pension fund for said police department; that the applicant stated that she had been married to the deceased since March, 1884, had lived with him as wife for fifteen years, but had been separated from him since 1899; that she had never been divorced or legally separated from him down to the time of his death; that she had seen him at stated intervals at least once a year up to 1919; that she claimed to have been married to decedent by a minister, at the Park Avenue Baptist Church in Paterson but there is no record of the marriage at the church nor were any records of such marriage found in any state or local bureau; that the said minister has since died and no one has been found who has any of his records concerning marriages performed by him. These facts appear in the return of the respondent and were brought out at the meeting of respondent commission on September 9th, 1930.

The return shows another meeting held on November 18th, 1930, in which the said application again engaged the attention of the members of the pension fund commission. At this second meeting the applicant produced witnesses in addition fco herself, one who had known the applicant and the decedent for forty years, and that for fifteen years they lived together as man and wife in the same house as the witness and were known as man and wife; another, an employe of the department of labor of the State of New Jersey, who testified that he likewise had known the applicant and the decedent for forty years and that he, too, knew them as man and wife and had met them at social affairs where they held each other out as man and wife; still another that he had known these parties for many years and had visited them at their home where the decedent introduced the applicant as his wife; still another who had employed the applicant as a domestic in her home, who knew the parties, applicant and decedent, as •man and wife.

There were other witnesses who testified along similar lines.

At a subsequent meeting, December 9th, 1930, the commission adopted a resolution denying the application of the said Anna Moore on the ground “that there had been no proof that she was ever married * * *” which resolution was unanimously adopted and, consequently, the application for pension failed.

This resume constitutes all the information contained in the return.

. At this juncture of affairs it will be observed that all the proof appearing in the return tended to prove and did prove if not a ceremonial marriage at least a common-law marriage.

In April, 1931, the parties hereto took testimony before a Supreme Court commissioner in which the matter in controversy was fully discussed by both sides. All of the witnesses mentioned above were heard and others in addition to that list. It further appeared that at or about the time of the alleged marriage the applicant had gone to the Prudential Insurance Company, in which company she carried a policy of insurance, and had had her name changed in the policy from her maiden name, Annie E. Wilson, to Annie E. Moore.

The testimony produced by the respondent, pension commission, to offset the prosecutor’s proof is at best negative in character. It tended to show and did show that from the time the prosecutor left the deceased that he had lived with another woman and that she had held herself out or for that matter had been held out, by the decedent, as wife. It is a significant fact that although the said Peter Moore died in July, 1925, at no time did the second woman in the case make application as the wife of the decedent for the pension that would have been her due under the law as widow of a deceased member of said police pension fund of the city of Paterson if she were in fact lawfully such widow. The testimony of the respondent attacks the prosecutor’s case by indirection and negatively. Testimony of this kind is never convincing in the face of affirmative proof to the contrary.

The respondent, the pension commission, takes the position that this court will not review evidence with a view to ascertaining whether it might have reached a different conclusion from the tribunal below and that if the judgment of the pension commission can be supported it will not be disturbed.

This generally states the law on this question, but there are certain exceptions thereto and the instant case is one of them. The facts in this case are reviewable in this court. Cf. Statute on Certiorari, section 11, 1 Comp. Stat., p. 405. In the ease at hand, however, an examination of the return of the respondent and the testimony taken compels the conclusion that there is no justification for the finding that the prosecutor was not married to the decedent, while there is plenary evidence, affirmative in its nature, to justify the finding that the prosecutor was married to the decedent.

The second point in the respondent’s brief argues that the prosecutor is in laches and therefore entitled to no relief. It must be presumed that this substantial question was raised at the time application was made for the writ and the writ allowed, so, apparently, the court, at the time the application was made, concluded that under all the circumstances of this case the prosecutor was not in laches. Her delay in making this application militated against herself and not at all against the respondent. Living as she did in the State of Massachusetts, the prosecutor was far away from the place where she might have gotten information about her rights. The respondent is a continuous body. Its records are permanent and laches may not generally be invoked under these circumstances. There is no inequity worked upon the respondent by the recognition of this claim. It is not such a delay as worked to the disadvantage of the respondent.

As to the third point that the prosecutor has failed to establish that she was the wife of Peter Moore at the time of his death and that she still remains unmarried, suffices it to say that there is a stipulation in the record that the prosecutor remains unmarried.

The proofs before the respondent, pension commission, sufficiently proved that the prosecutor was in fact the wife of the decedent and no evidence was presented to controvert it.

The resolution, therefore, of the pension commission of the fire and police pension fund commission of the city of Paterson will be set aside and a rule may be entered to that effect.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    HORACE R. BOGLE, PROSECUTOR, v. JOHN F. WOODS ET AL., COMMISSIONERS OF LYNDHURST, NEW JERSEY, DEFENDANTS.
    Argued May 3, 1932
    Decided June 24, 1932.
    Before Justices Parker, Campbell and Lloyd.
    Por the prosecutor, Carey & Lane.

    Por the defendants, William George.

   Per Curiam.

A certiorari was issued in this case to review two resolutions passed by the board of commissioners of the township of Lyndhurst at its meeting on March 21st, 1932. The first resolution purported to appoint commissioner John F. Woods as director of public affairs and public safety in place of Horace E. Bogle, the prosecutor, and directed that he should have the same powers as Bogle had exercised as director of the department.

The second resolution purported to appoint John A. Flynn as the chief of police. The township is governed by the Walsh act and is accorded by that act three commissioners for its government. These commissioners were Bogle, Woods and one Guidetti. They were elected May 14th, 1929, and organized one week later. At the organization meeting Bogle was designated as mayor and assigned to the department of public safety and affairs; Woods to the department of revenue and finance, and Guidetti to streets and public property. As such they acted until March 21st last when the resolutions were passed.

At the inception of this meeting and before the resolutions brought up by the writ were passed, Bogle, as director of public safety, announced that he had appointed one Otto Baer, Jr., as chief of police in the place of the former chief who had died.

The prosecutor contends that both resolutions are invalid and argues as to the attempted appointment of Woods that it would make him both director of public affairs and public safety and also director of the department of revenue and finance, which is in violation of the act which provides that each commissioner shall be designated by majority vote of the board of commissioners to be director of one of the departments at the organization meeting; and further contends that the resolution was invalid because it failed to place the prosecutor Bogle in charge of any department.

The act provides that the designation of commissioners so assigned may be changed whenever it appears that the public service would be benefited thereby. Doubtless there would be a presumption that any changes made would be for the benefit of the public service and we do not see any evidence' in the case sufficient to indicate that this is not so in so far ■as the assignment of Woods to public affairs and public safety was concerned. But whether it was necessary to shift Woods-from revenue and finance, and substitute Bogle in the same' resolution, it undoubtedly followed, without a resignation or a resolution vacating Woods’ position as head of the department of revenue and finance, that at the time he was elected to the department of public affairs and safety he was thereby appointed to two positions, one that he held and the other to which he had just been assigned. Plainly the act contemplates that there shall be a division of authority and an imposition of individual responsibility in departmental work,, and that each commissioner should be assigned to a single department and be held accountable for its management.. This is indicated by the power of appointment which is conferred upon the respective commissioners by the act and the power of removal similarly conferred.

It appears from the depositions taken that the prosecutor was assigned to public affairs and public safety a few days later, viz., on April 11th, but this would not cure the illegality, particularly as the writ of certiorari was allowed on April 5th, and explicitly to operate as a stay, so that an attempt; to cure the illegality savored of contempt. Apart from this,, if dual office holding could be effected for a day or a week,, as in this case, it could be effected for an indefinite period,, and one or more of the commissioners wholly deprived of functions which it is intended by the act should upon assignment wholly vest in the" appointee.

We therefore conclude that the resolution appointing Woods-commissioner of public affairs and public safety while he-held the position of revenue and finance was illegal; that Woods would first have to be divested of the commissioner-ship of revenue and finance before he could be appointed to the other position; or at best, contemporaneously with such appointment.

We consider also that the resolution appointing Flynns chief of police was illegal and that for two reasons: First, that there was no vacancy in the position. At the time of the adoption of the resolution Bogle was the director of public .affairs and public safety and this regardless of the validity of the action of the commissioners in attempting the shift in directorships, and he having made the appointment of Baer, that officer was holding office and there was no vacancy. Secondly, power of appointment of the chief of police rested in the individual who at the time was director of public affairs and public safety and not in the board as a whole after the original meeting of the commissioners. The law is .settled on this point. Seaman v. Strollo, 105 N. J. L. 570; 146 Atl. Rep. 331. As to the suggestion that the attack on the Flynn appointment should be by quo warranto, we are clear that under the circumstances of this case certiorari will lie. Murphy v. Freeholders, 92 N. J. L. 244; 104 Atl. Rep. 304.

The resolution relating to Woods will be set aside, with costs. With regard to the Flynn resolution, strict practice requires that he be made a party to the record, by endorsement of his name on the writ and service of such writ upon him. Zeller v. Guttenberg, 81 N. J. L. 305; 83 Atl. Rep. 466. But as it seems perfectly clear, in view of the Strollo case, that his appointment was illegal, he may be brought in at this time and be heard at a short day if desired; or failing such hearing a rule may be entered setting aside the resolution purporting to appoint him and brought up by the writ.


text:
    BUILDERS CONSTRUCTION COMPANY, RELATOR, v. ALBERT F. DALY, BUILDING INSPECTOR OF THE TOWNSHIP OF MILLBURN, RESPONDENT.
    Argued May term, 1932
    Decided June 27, 1932.

      Before Justices Parker, Campbell and Lloyd.
    Por the relator, Spaulding Frazer and Aaron Van Poznalc.

    Por the respondent, Ira 0. Moore, Jr.

   Per Curiam.

The application in this case is for a writ of mandamus to compel the issuance of a permit for the erection of two dwellings in Millburn township, Essex county. The permit was applied for to the building inspector of the township and denied.

The applicant owns a tract of land of irregular shape fronting one hundred and forty-five feet on the west side of Baltusrol Way and extending northerly a distance of approximately three hundred and fifty feet. A driveway enters this tract from Baltusrol Way and extends nearly to its northerly end. It is a private road, was originally eight feet wide, and now proposed to be widened to twenty feet. On this driveway it is planned to erect the two dwellings with a setback from the outer line of the driveway of twenty-four feet.

While no specific reason seems to have been given for refusal of the permit by the building inspector, the respondent now seeks to justify his action on the ground that a present existing ordinance forbids the construction of dwelling houses within forty-nine feet of the centre line of highways, excepting certain streets previously laid out.

At the time the application was made, February 3d, 1932, the ordinance then in effect prohibited the erection of any building in the district in which the applicant’s land was located, within twenty-four feet of any street. The ordinance was later amended on March 7th, 1932, by changing the setback from the twenty-four feet from the street line theretofore permissible to forty-nine feet from the center line.

It appears that while the driveway was eight feet in width application .was made by a former owner of the land for permission from the township to construct a private sewer in the driveway, to connect with a township sewer in Baltusrol Way, and it is contended that by acceding to this request the township is estopped from passing and applying the provisions of the present ordinance to the lands in question.

This contention seems to us to be wholly without substance. The sewer was a private one for which the owner alone was responsible. The township simply acquiesced in its construction and assumed no responsibility respecting it. Under such circumstances it is difficult to conceive of any theory upon which the township was estopped from passing the ordinance or from enforcing it against the relator.

It is also claimed that the ordinance is unconstitutional as to the relator inasmuch as it had entered into binding contracts for the construction of the buildings based upon the permission granted by the township for the construction of the sewer. As we have held that the permit for the sewer did not estop the township as a matter of fact, we think it equally clear that it infringed no constitutional right of the relator, and that for the reasons already adduced respecting the first contention.

Uo question is raised as to the reasonableness of the restriction in a general sense, but it is contended that the premises of the relator are of such dimensions that the requirement to set back the forty-nine feet in effect denies it the use of the property for the purposes for which it was purchased, and which purposes it is claimed were acquiesced in by the township committee when it granted the permit to lay the sewer with its house connections.

We think this contention is also without force. When the sewer was constructed it was in an eight feet driveway. It is not apparent that it was either the intention of the applicant for the sewer or the understanding of the township committee that this driveway was to be the frontal street for a series of dwellings. It is as readily inferable that the driveway would be in the rear of the lots on which any dwellings might be built as that it should be the main highway upon which such dwellings would face. An examination of the premises fails to disclose that the ordinance in anywise deprived the relator of the reasonable use of his premises, even assuming that such result would render the ordinance invalid as to it.

• Although the question did not appear to be raised in the relator’s brief the regulation would seem to be reasonable in its general application, and the fact that the ordinance upon which the respondent relies was passed after the application for the permit was made affords no ground for the issuance of a mandamus after its adoption. It is the status of the municipal legislation at the time the application for this writ was made that must control and not as it stood at the time the application for the permit was made. Rohrs v. Zabriskie, 102 N. J. L. 473; 133 Atl. Rep. 65.

The rule for a writ of mandamus is discharged.


author: Pee Cueiam.

text:
    CARTERET ACADEMY, INCORPORATED, PROSECUTOR, v. STATE BOARD OF TAX APPEALS AND THE CITY OF ORANGE, RESPONDENTS.
    Argued May term, 1932
    Decided June 27, 1932.
    Before Justices Pabkeb, Campbell and Lloyd.
    Por the prosecutor, Osborne, Cornish ■& Scheclc.

    Por the respondents, William A. Oalhoun.

   Pee Cueiam.

A writ of certiorari was allowed in this case to review the .■action of the state board of tax appeals affirming an assessment of $46,400 upon the lands of the Carteret Academy, Incorporated. The status of the academy’s property for purposes of taxation has been before the court on two previous occasions and on both the academy was held not to be within any of the exempt classes as provided in section 203, subdivision 4 of the Tax act of 1918. 98 N. J. L. 868; 120 Atl. Rep. 736; 102 N. J. L. 525; 133 Atl. Rep. 886; affirmed, 104 N. J. L. 165; 138 Atl. Rep. 919.

In 1929 the legislature amended this section and the respondent concedes that the buildings and certain of the land are entitled to exemption under this amendment. The tract comprises approximately three and one-half acres, all contiguous to the building of the academy. Originally the tract was placed on the city maps as lot Ho. 1, block 95. In 1930 the lot was changed into two lots, being designated as lots Ho. 1 and Ho. 1-A, and as thus constituted lot Ho. 1 has a frontage of approximately one hundred and thirty-seven feet on one street and four hundred feet on another. On this lot stands the school building. The remaining portion of the tract is said to be used for athletic purposes. Both lots were assessed in 1931 by the assessor, but the assessment on lot Ho. 1 was set aside and that on Ho. 1-A was sustained by the state board.

Section 203 (4) of the act exempts “the land whereon any of the buildings (thereinbefore mentioned) are erected and which may be necessary for the fair enjoyment thereof, and which is devoted to the purposes above mentioned and to no other purpose, and does not exceed five acres in extent,” and the prosecutor contends that under this section the whole of its land, comprising approximately three and one-half acres of ground, is exempt.

In this situation an issue of fact was presented which in the first instance must be determined by the assessor, and if appeal be taken, thereafter by the reviewing body. This issue of fact is whether the lands taxed are necessary for the fair enjoyment of the buildings. On certiorari to this court the issue of fact is again raised. Sisters of Charity of St. Elizabeth v. Cory, 73 N. J. L. 699; 65 Atl. Rep. 500.

The state board found that the portion so set apart as exempt from taxation is all that is necessary for the fair enjoyment of the buildings, being ample for light and air, ingress and egress and the ordinary uses to which the building is devoted; including a sufficient allowance for lawns, trees and recreation; that the land thus exempted was liberal for the purpose. Our examination of the evidence leaves us in entire accord with this conclusion.

The contention of the prosecutor that the tract could not be severed for purposes of taxation under Chatham v. Sisters of St. Elizabeth 92 N. J. L. 409; 105 Atl. Rep. 204, finds, as we read it, no support in that ease and is unsound. Upon this theory any tract of land which might be acquired would be thus exempt regardless of its size provided only that it be a single tract and contiguous to the buildings. To state the proposition is to answer it.

The order of the state board will be affirmed.


text:
    ROBERT W. KIDD, PROSECUTOR, v. WILLIAM A. W. GRIER, PROSECUTOR OF THE PLEAS OF THE COUNTY OF SALEM; J. FORMAN SINNICKSON, JUDGE OF SALEM QUARTER SESSIONS COURT, AND THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF SALEM, RESPONDENTS.
    Submitted February 1, 1932
    Decided June 24, 1932.
    Before Justices Teenchaed and Donges.
    Bor the prosecutor, W. Orvyl Schaliclc.

    Bor the respondents, Francis D. Weaver.

   Per Curiam.

The prosecutor of this writ of certiorari was duly appointed special officer or county detective by the prosecutor of the pleas of Salem county on December 4th, 192G, and he properly qualified, all pursuant to chapter 296 of laws of 1913; and it is stipulated that he “held such office” until his discharge therefrom in 1931.

He was discharged on June 18th, 1931, in the manner outlined by chapter 182 of laws of 1930.

On June 19th, 1931, his successor, J. Emmor Bobinson, was appointed to such vacant office in the manner provided in the last mentioned statute, and immediately qualified and took possession of such office, and ever since has performed the duties thereof and received the compensation or salary provided therefor by law.

Several months later—on December 24th, 1931—the prosecutor of this writ applied for and obtained this writ of certiorari, and the respondents named therein contend that the prosecutor has mistaken his remedy, if any.

For reasons now to be stated, we think that is so.

The stipulation signed by counsel shows that the prosecutor was not in possession or occupancy of the office at the time he applied for his writ of certiorari, and was not seeking to remove from his way a proceeding which he apprehended might be used unlawfully to eject him or disturb him in the tenure of his office, for which purpose certiorari would have been the proper remedy. Moore v. Bradley Beach, 87 N. J. L. 391; 94 Atl. Rep. 316. On the contrary the facts show that he claimed the right and title ,to the office from which he had been ousted, and which office was then occupied by another, and so we are of the opinion that his proper remedy was by quo warranto and not by certiorari. That was pointed out with some care in Moore v. Bradley Beach. Under the the present procedure the present occupant of the office, and who would be most vitally affected by the judgment of the court in this suit is not before the court, because he is not a party to this proceeding, although he is now receiving and has received since June 19th, 1931, the date of his appointment, the compensation fixed and paid by the board of chosen freeholders of Salem county. That he is holding an “office” we think is clear. It seems not only to be recognized as an “office” by the stipulation, but is- well within the definition of “office” as found in Fredericks v. Board of Health, 82 N. J. L. 200; 82 Atl. Rep. 528.

In such situation we cannot properly, in this proceeding, determine the questions sought to be raised, namely, the validity of the discharge of the prosecutor (an exempt fireman) without a hearing, and the applicability of chapter 182 of laws of 1930 to the prosecutor in view of his appointment in 1926 prior to the passage of that statute.

The writ of certiorari will be dismissed, with costs.


author: Dtjngan, C. C. J.

text:
    CHARLES SUYDAM, PLAINTIFF, v. PUBLIC INDEMNITY COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Decided June 29, 1932.
    For the motion, Heine •& Laird (John A. Laird, of counsel).
    Contra, Arthur T. Vanderbilt (Mr. Jacobs, of counsel).
   Dtjngan, C. C. J.

In February, 1928, plaintiff was in jured by a truck owned by Joseph Forte, as a result of the negligent operation by William E. Bennett, and in March, 1929, he instituted suit against them and eventually obtained a judgment against them for $22,000. Execution was issued on this judgment, and returned unsatisfied. Hudson Casualty Insurance Company had issued a policy of insurance indemnifying Forte to the extent of $10,000 for any accident resulting in injury to one person, and when the suit against Forte and Bennett was commenced, the summons and complaint in that action were sent to the Hudson Casualty Insurance Company, which subsequently, during the pendency of the action, was merged into the Public Indemnity Company, the defendant in this suit; and these companies—first the former by its attorneys filed the answer for the defendants Forte and Bennett, and then the latter by its attorneys, unsuccessfully conducted the defense in that suit. Upon the return of the execution therein, this plaintiff brought this suit against the Public Indemnity Company, the successor of the Hudson Casualty Insurance Company, under the provisions of chapter 153 of the laws of 1924, page 352, which is as follows:

“Ho policy of insurance against loss or damage resulting from accident * * * shall be issued or delivered in this state by * * * any insurer authorized to do business in this state, unless there shall be contained within such policy a provision that the insolvency or bankruptcy of the person insured shall not release the insurance carrier from the payment of damages for injury sustained or loss occasioned during the life of such policy, and stating that in case execution against the insured is returned unsatisfied in an action brought by the injured person * * * because of such insolvency or bankruptcy, then an action may be maintained by the injured person * * . * against such corporation under the terms of the policy for the amount of the judgment, not exceeding the amount of the policy.”

The complaint in this case stated the action by the plaintiff against Forte and Bennett, the entry of judgment against them, the issue of execution thereon, its return unsatisfied, the issuing of the policy in suit to Porte, and demanded damages in the sum of $10,000. The defendant by its answer set up two defenses, which may be summarized as follows:

1. That the policy required the assured to give immediate written notice of any accident causing loss covered by the policy, which he failed and neglected to do until more than a year after the accident resulting in the suit.

2. That the policy had a “named operator” endorsement, which provided that the policy should cover only while the automobile was being driven by Joseph Porte and Arthur Wood; and that, in violation of that endorsement, the automobile involved in the accident was being driven by William E. Bennett.

The plaintiff thereupon amended his complaint and alleged that the answer to the complaint in the action against Porte and Bennett was filed by the attorney appearing for them therein, at the request of the Hudson Casualty Insurance Company, which company retained and paid him; and that the attorney who tried the case for them in the Bergen County Circuit Court was engaged by the Public Indemnity Company, with which the Hudson Casualty Insurance Company had become merged in the meantime; that he was paid for his services by the Public Indemnity Company; that these acts of the Hudson Casualty Insurance Company and of the Public Indemnity Company constitute an admission ■that said companies insured Porte and Bennett; and that “the Public Indemnity Company is now estopped to deny that Porte and Bennett are covered by the said policy” in accordance with the policy limits therein contained.

In answer to this amended complaint the defendant says that on April 11th, 1929, Hudson Casualty Insurance Company wrote a letter to the assured Porte, disclaiming liability for failure to give immediate notice of the accident and for a, violation of the “named operator” endorsement, and returned the papers in the case to him and suggested the employment by him of counsel to defend the action,, but stating that the company would file an answer for him and defend the action i£ he desired, but upon “the full reservation of our rights, and will not be any assumption of liability.” This letter was returned by Mr. Forte with the following endorsement: “I hereby request that the Hudson Casualty Insurance Company undertake the defense of the suit of Charles Suydam v. Joseph Forte and William E. Bennett now pending in the Circuit Court of Bergen county, without' further obligation ’on their part, in accordance with the contents of the above letter. (Signed) Joseph Forte.”

A similar letter was written to Mr. Bennett, who also returned with a like endorsement.

Thereafter, under date of May 27th, 1931, Mr. Forte signed and delivered to the defendant, Public Indemnity Company, a non-waiver agreement, as follows:

“non-waivek ageeement.

It is hereby agreed by and between Joseph Forte, hereinafter called the Insured, and the Public Indemnity Company, hereinafter called the Company, that the Company shall by its representative, and at such time and in such manner as it deems advisable, proceed to, and, investigate, a certain accident which occurred, or is alleged to have occurred on or about the 14th day of February, 1928, at Creskill, Hew Jersey; and this agreement and investigation and/or any act performed, or thing done, by the said representative, the Company or by or in its behalf, including, but not limited to, all proceedings necessary to the legal defense of any action or suit arising therefrom or in connection therewith and consequent upon the said accident, and until such time as the Company may expressly communicate to the Insured its position in writing, shall not be construed as a waiver of any provision, term, condition, limitation, &c., in said policy contained, held by the said Insured, nor a waiver of any right or rights thereunder, either by him or the said Company.”

A similar agreement was signed and delivered to defendant by Mr. Bennett.

On behalf of the plaintiff, motion is now made to strike out these defenses and for the entry of summary judgment against the defendant.

There is no question but that, under numerous decisions in this and other states, the investigation by a liability company of a case between an injured person and the insured, and taking charge of and conducting the defense for an insured, constitute a waiver of defenses under the policy which may be interposed by the insurer in a suit by the insured, and estops the insurer from setting them up in such a suit; but, on the other hand, the cases are equally numerous that an insurer by investigating and defending a case against an insured under a reservation of its rights or under an expressed waiver of the insured, is not estopped to set up defenses under its policy in a suit by the insured who has paid a judgment against him in a case by a person injured.

The plaintiff, while admitting that this is so, insists that, by force of the statute of 1924, above quoted, the person injured becomes a party to the policy, and that, unless he is given notice by the insurer of its reservation of rights, and assents thereto either expressly or impliedly, or expressly waives the obligation of the insurer arising from the investigation and the defense of the suit against the insured, the insurer, in a suit against it by a person injured, is estopped to set up defenses against him which it might have interposed in a suit by the insured, and claims that the case of Horn v. Commonwealth Casualty Company, 105 N. J. L. 616; 147 Atl. Rep. 483, is authority for this view; but a careful examination of that case fails to show that before- the investigation and defense of that case there was any reservation of its rights by the defendant or any waiver of its rights by the insured.

No rights under the policy accrue to the injured party until there is a judgment against the insured, and until an execution on such judgment is returned unsatisfied. Then, and not until that time, may the person injured bring suit against the insurer, and when such .suit is brought, the action must be maintained against the company “under the terms of the policy,” which I understand to mean—such terms as would permit the insured to recover, or as would prevent him from recovering. Since the injured party in this case had no interest in the contract between the insurer and insured until after judgment and the return of execution unsatisfied, he was not entitled to notice of reservation of rights by the insurer or the waiver of those rights by the insured, both of which were matters occurring prior to the accrual of any interest in the policy by the party injured. The party injured has no greater rights under the policy in a suit against the insurer than has the insured in a suit by him against the insurer; and since, under the reservation of rights given by the insurer to the insured, Mr. Porte, and by the execution of a non-waiver agreement by him, the insurer would not be estopped in a suit by the insured to plead violation of the terms of the policy as a defense, the defendant is not estopped in this suit to plead such defenses.

The result of these views is to deny the motion made on behalf of the plaintiff to strike out the defenses.


author: Porter, C. C. J.

text:
    Essex County Circuit Court.
    MINNIE APFELBAUM AND ALICE LAWSON, ADMINISTRA-TRICES OF THE ESTATE OF JOHN P. JOHNSON, PLAINTIFFS, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION, DEFENDANT.
    Decided July 2, 1932.
    Eor the plaintiffs, Jacob Mellinger.

    Eor the defendant, Perkins, Drewen & Nugent (John P. Nugent, Jr., of counsel).
   Porter, C. C. J.

The motion is to strike out the answer and for judgment, on the ground that the defense is frivolous and sham.

The suit is to recover money claimed to be due under two life insurance contracts between John P. Johnson and the Prudential Insurance Company, defendant.

At the argument on this motion it was stated the facts were as follows: That John P. Johnson has been missing since June 10th, 1921. That pursuant to chapter 275, Pamph. L. 1927, a petition was filed with the surrogate of Hudson county for an order to show cause why Johnson should not be declared dead. That the surrogate made an order that the defendant be notified of the pendency of said proceedings so that it might be heard, the petition reciting the fact of the existence of the insurance policies on the life of Johnson issued by the defendant. That the defendant entered an appearance in said proceedings. That no proof being submitted to the surrogate why the prayer of the petition should not be granted he issued a decree declaring Johnson to be dead.

Letters of administration were later issued to the plaintiffs and a demand was made on the attorneys for the defendant that payment be made under the terms of the policies of insurance on Johnson’s life. The payments not being made by the defendant, this suit was instituted setting up generally these facts.

The answer admits that the premiums due under the policies have been paid, but denies that any money is due under the terms of the policies, and further sets up separate defenses—that Johnson is alive and that due proof of death has not been received as required under the policies.

It is contended by the plaintiffs that these defenses are frivolous and insufficient in law because the death of Johnson has been established by the decree of the surrogate. It is argued by the plaintiffs that the defendant, having appeared in that proceeding, is barred from raising the question of Johnson’s death, because that question is res adjudicata; and, furthermore, that the separate defenses are a collateral attack upon the decree of the surrogate.

I think there is no merit in the contentions of the plaintiffs. The decree of the surrogate does not adjudicate Johnson to be dead but simply finds a presumption that he is dead. The defendant seeks to overcome this presumption. It does not attack the decree collaterally or otherwise.

In seeking to overcome this presumption of death, the defendant may do so without an attack on the decree of the surrogate. The defendant may not disagree at all with the decree. It simply desires to overcome the presumption thus decreed.

If in fact the defendant can prove that Johnson is alive, certainly that will overcome the presumption of death and defeat the plaintiff’s action in this suit. The death of the insured is, of course, a prerequisite to recovery.

While many decisions in various states support this view, reference need only be made to one which it seems to me settles the law and is controlling. In Scott v. McNeal, 154 U. S. 34, there was a decree of presumptive death of Scott, and an administrator was appointed. Scott was not in fact dead, and returned and brought an ejectment suit against McNeal who had acquired Scott’s property from the administrator. The Supreme Court of the United States held that proof, under proper pleadings, even in a collateral suit, that Scott was alive controls and overthrows the prima facie evidence of his death.

Having reached this conclusion, it follows that the defense that due proof of death has not been received by the defendant is also proper.

The motion to strike out the answer is denied.


author: Parker, J.

text:
    FRANK THOMSON, RELATOR, v. STATE HIGHWAY COMMISSION OF NEW JERSEY, RESPONDENT.
    Decided July 1, 1932.
    Por the relator, Seufert & Elmore.

    Por the respondent, Walter H. Bacon, Jr.

   Parker, J.

The relator was in possession of a house and lot in Bergen county, under a contract to purchase and pay for the same by installments of $50 per month, made with Ralph Tibbals, owner of the fee, in 1923. The contract provided that Tibbals might mortgage the property and that Thomson by assuming the mortgage should have credit for the same on the purchase price. Tibbals mortgaged to one Cunningham for $4,000. Thomson’s agreement was never recorded.

In 1930 the highway commission, requiring a part of the property for a new road, took possession of the same under power conferred on it by statute, and paid Tibbals $25 for a deed to the part taken (the description of which is not before me), and obtained from Cunningham a release of that part from the mortgage. Thomson, the relator, seems to have been ignored in the matter although he was plainly in possession and the commission was therefore charged with notice of his contract rights which proper inquiry would necessarily have disclosed. As the highway commission has been held immune to an action of trespass (Haycock v. Jannarone, 99 N. J. L. 183; 122 Atl. Rep. 805); and necessarily to ejectment also, in view of its statutory power to enter the remedy of the landowner is to enforce payment for his land by mandamus to take proceedings to condemn it in case of inability to agree on the price. Goodavage v. State Highway Commission, 96 N. J. Eq. 424; 125 Atl. Rep. 919.

The only defense set up by the respondent is that relator Thomson has not shown such an ownership or interest as to entitle him to any compensation therefor.

I think this position clearly untenable. Respondent undertakes to show that Thomson as vendee has not performed his part of the contract of purchase by making the payments required according to its terms, and suggests that he may be estopped by failure to give notice of his rights at the time the agents of the commission took possession by filling in over his lot. Just how a party in possession of real estate is to be held estopped to challenge a trespass because he stands on possession as notice of his rights, I fail to see. As to the failure to keep up his payments on the contract, if there be such failure, that is a matter between him and Tibbals, of which conceivably Tibbals might take advantage, but not the respondent. Moreover, the contract is liberal in its terms, perhaps because Tibbals is the uncle of Thomson’s wife. Thomson has clearly an interest which would make him a necessary party to a condemnation proceeding of the land, and the condemning party would omit him “at its peril;” the condemnation being nugatory as to him in such case. National Railway v. E. & A. R. R. Co., 36 N. J. L. 181, 185; Rowland v. Mercer County Traction Co., 90 Id. 82; affirmed, 91 Id. 332; 102 Atl. Rep. 814. If there had been a condemnation of the land instead of an agreement with Tibbals and the mortgagee, and Thomson had been made a party as contract vendee in possession, the value of his interest would have been ascertained in Chancery as provided by statute. He cannot be deprived of his right to compensation because the owner of the fee and mortgagee have sold out their respective interests.

The material facts are perfectly clear. A writ of peremptory mandamus will be awarded.


author: Mountain, S. C. C.

text:
    GENEVIEVE B. MOLT, PLAINTIFF, v. PUBLIC INDEMNITY COMPANY, DEFENDANT.
    Decided July 13, 1932.
    For the motion, Arthur T. Vanderbilt.

    Contra, W. Howard Demarest.

   Mountain, S. C. C.

This matter comes before me on a motion to strike out the complaint, which, among other things, alleges that the plaintiff is a private citizen of the United States and as such is entitled to the security and liberty guaranteed by the constitution of our government, as well as the State of New Jersey, and privacy to her person, reputation and home.

She had been injured in an automobile accident, and the other person involved in that accident was insured in the defendant corporation. She complains that corporation has violated the rights I have referred to; that it has made a canvass of the plaintiff’s neighborhood, including friends and strangers, and interrogated them as to the plaintiff’s habits, character, honesty, health, &c., and as to her personal and private affairs, and has made insinuations of fraud and dishonesty, and has in addition, trailed and annoyed the plaintiff, following her in her errands and movements from day to day, and causing her to he unnerved and disturbed in mind and body.

There is also a count drawn, which alleges a visitation by the agents and servants of the defendant upon the plaintiff while she was in the hospital and asleep, in an effort, by force and arms, to conduct a physical examination of her person. She claims special damages for the illness resulting from these trespasses, recovery for nervous agitation, and also special damages to her good name, reputation, honesty and integrity.

There is authority for bringing an action of this kind, which is an action for continuous slander—as differentiated from libel. Libel of any kind requires a record. Jefferies v. Duncombe, 11 Bast 226; Levi v. Milne, 4 Bing. 195; Schultz v. Frank Fort Marine Accident and Plate Glass Insurance Co., 151 Wis. 537. The facts in the latter case were somewhat similar to those in the action before us, but the justice who decided it held that it was libel. I think it was, in fact, a case of continuous slander. See, also, 43 L. R. A. (N. S.) 520.

The complaint before me will be stricken out for the following reasons:

1. It is uncertain, vague and indefinite.

2. It attempts to present a case of continuous slander.

3. It joins with that, a count for assault and battery, whicji is no impropriety, except that the corporation is defendant. The count is bad. because it does not allege that the assault was made by an agent or servant of the corporation acting within the scope of his authority.

4. The special damages are not properly pleaded. This does not present a case where the damages follow the slander per se, or can they be assessed for physical sickness alleged to have been caused by the plaintiff. Butler v. Hoboken Printing and Publishing Co., 73 N. J. L. 45; 62 Atl. Rep. 272. In other words, the complaint for continuous slander must be drawn with great particularity, and the special damages must be averred with the same care. My criticism.of the count, based on assault and battery, has been made.


author: Elannagan, J.

text:
    Essex Oyer and Terminer.
    THE STATE v. ARTHUR C. MINCH AND HENRY J. MORRIS
    Decided June 17, 1932.
    Eor the state, Joseph L. Smith, Felix Forlenza and Harold H. Fisher.

    Eor the defendant Arthur C. Minch, Jacob Fox.

    Eor the defendant Henry J. Morris, Leo I. Korn.

   Elannagan, J.

This is a motion to quash an indictment.

The indictment is drawn under the Crimes act, sections 37 and 215, which provides that a combination of individuals “to cheat and defraud any person of any property by any means, which if executed would amount to a cheat” shall be demed a conspiracy and punishable as for a misdemeanor and that any other “cheats,” “deceits,” or other offenses of an indictable nature at common law shall be misdemeanors and punishable accordingly. So that the present indictment must stand, as against this motion, if it be good either under the express provisions of the statute or if it alleges a crime at common law.

The indictment charges that defendants “did conspire, confederate and agree together to cheat and defraud one Peter Ereda of his moneys,” setting out certain overt acts. The indictment contains certain additional allegations but as “the essential of an indictment for conspiracy is the combining together to do an unlawful act and as an indictment properly setting this out is not bad simply because it contains other unnecessary averments” (Joyce on Indictments (2 ed.) § 488; United States v. Weiss, 293 Fed. Rep. 992; Madden v. State, 57 N. J. L. 324; 30 Atl. Rep. 541), these additional allegations will only be considered on this motion because they make manifest the underlying question involved in this case.

The indictment charges a conspiracy to “cheat and defraud” a private individual of his moneys by means which, the language of the indictment shows, involved the use of no token and no particular interest of the public was prejudiced by the acts as alleged.

The question presented for decision is, therefore, whether or not a confederation by individuals to commit a mere private fraud is a crime in this state. There seems to be no New Jersey case directly in point.

While the perpetration of a private fraud by a single individual would not constitute a crime at common law, the contrary appears to be the case where the private fraud is accomplished by a combination of individuals for the puipose of perpetrating it. In Clark & Marshall on the law of crimes, the authors say (sections 142 and 144):

“It is a misdemeanor to conspire to commit against another ;a mere private wrong, the only effect of which would be to render the wrong-doers liable to an action for damages, if acting individually. While the contemplated wrong would not be indictable, the unlawful combination to commit it, because ■of the increased power to injure, is regarded as so far injurious to the public at large as to require the state to interfere. Hawkins says: ‘There can be no doubt that all combinations whatsoever, wrongfully to prejudice a third person, are highly criminal at common law.’ And Chitty says: '‘All confederacies wrongfully to prejudice another are misdemeanors at common law, whether the intention is to injure his property, his person or his character.’

* * * * * *

“To obtain another’s money or goods by mere false representations, without using false weights, measures, or tokens Is a mere private wrong at common law, and not an indictable ■cheat, and yet it has been held an indictable offense to conspire to defraud by such means.”

Other authorities sustaining this view are State v. Buchanan, 5 Har. & John 317; Com v. Warren and Johnson, 6 Mass. 74, and 2 Bish. Cr. L. (9th ed.) 135, § 198.

One of the most instructive opinions upon this subject is that of Judge Buchanan in State v. Buchanan, supra, where many old English cases supporting his conclusion are reviewed and explained. The Buchanan case was cited with approval by Chief Justice Green in State v. Norton, 23 N. J. L. 33.

The contrary of this view is earnestly maintained in a painstaking opinion by Mr. Justice Ford in State v. Rickey, 9 N. J. L. 293. The Rickey case is not in point as the combination claimed in that case was to defraud a bank of issue, and hence, a public interest was involved. The argument of Mr. Justice Eord was, therefore, by way of dicta. Mr. Justice Ford’s argument is, however, expressly disapproved in later cases by dicta in opinions written both by Chief Justice Green and Chief Justice Beasley. In State v. Donaldson, 32 N. J. L. 151, Chief Justice Beasley says:

“The course of reasoning adopted by Mr. Justice Eord in State v. Eickey is now very generally admitted to be fallacious. In the case of State v. Norton, supra, the view of law expressed by Mr. Justice Eord is disapproved and Chief Justice Green in stating his conclusions, after an examination of the subject, remarks The great weight of authority, the adjudged cases, no less than the most approved elementary writers, sustain the position that a conspiracy to defraud individuals, or a corporation, of their property may in itself constitute ail indictable offense, though the act done or proposed to be done in pursuance of the conspiracy be not in itself indictable.”

In 2 Bish. Cr. L. (9th ed.) 135, § 198, the author says:

“If two or more persons conspire to defraud another, taking advantage of the power for evil which the combination gives, but neither means nor end is criminal, the case is within the doctrine of our subtitle before the last. [Boferring to section 180.] Therefore, it has become established that a conspiracy to defraud an individual is indictable by reason of the combination of numbers to do the unlawful thing, though the same wrong actually accomplished by one of the conspirators would only be a civil injury and not a crime.”

The case of State v. Black, 5 N. J. Mis. R. 639; 138 Atl. Rep. 513, has no application as no fraudulent or wrongful means were there alleged to have been employed.

I conclude that for two or more persons to confederate together to deprive another of his property by fraud is a conspiracy and a crime if an overt act in fulfillment thereof be performed.

The motion to quash must therefore be denied.


author: Perretti, J.

text:
    Passaic District Court.
    PUBLIC SERVICE ELECTRIC AND GAS COMPANY, A CORPORATION, PLAINTIFF, v. BENJAMIN SANFORD, DEFENDANT.
    Decided July 13, 1932.
    Por the plaintiff, Perlman & Elias.

    Por the defendant, Louis A. Cowley.

   Perretti, J.

This case was submitted on an agreed state of facts involving substantially the following situation:

On June 12th, 1929, the plaintiff sold a certain Kelvinator machine and equipment to one Joseph De Santis for $202.50, under a conditional sales agreement, specifying inter alia the times for payments thereunder. No payments have ever been made on account of the obligation represented by this instrument. The conditional sales agreement, together with a statement purporting to describe the premises in which the Kelvinator was to be placed, and the method of annexation thereto was filed in the office of the register of deeds for Passaic county, on June 21st, 1929. Thereafter, the premises were sold to the defendant in this action. It appears further, and on this arises the principal point of contention between the parties, that the description of the premises in the statement above referred to consisted of a street name and number, which was incorrect, and a lot and plot number in a municipal map, which were correct, and described the-premises in which the Kelvinator was actually placed, and which were sold to the defendant accurately: also that the-conditional sales agreement itself, designated the correct, street name and number as the place of delivery. The parties-stipulate also that the defendant had no actual notice of the-conditional sales agreement at the time he bought the property. The plaintiff now sues the defendant in replevin for a return of the Kelvinator.

Counsel for the plaintiff contends: (1) that the filing, as above set forth, is a sufficient compliance with section 7' of the Uniform Conditional Sales act; and (2) that under the facts of this case, no filing of a statement with the conditional sales agreement is required. Counsel for the defendant in answer says that where two descriptions within the same statement conflict, neither is of any effect and the-result is as if no statement had been filed. Both counsel cited various authorities in support of their contentions.

I have first considered the second contention of plaintiff' for the reason that if plaintiff is correct in that contention,, it would be unnecessary to determine the remaining question, in the case. It is not clear from the stipulated set of facts-whether the defendant actually dealt with the Kelvinator as-personalty, or bargained for it separately at the time he purchased the property. If it had appeared that the defendant-had regarded this chattel as personalty, and if he had notice,, actual or constructive, on the conditional sales agreement, a. compliance with section 7 of the Conditional Sales act would' not have to be shown in order for the plaintiff to prevail. Since this does not appear, it must be presumed that the-defendant bargained for the realty only, and as including theKelvinator in question.

Chapter 210, laws of 1919, paragraph 7, reads:

“If the goods are so affixed to realty at the time of a conditional sale or subsequently as to become part thereof, but to be severable without material injury to the freehold, the-reservation of property shall be void after the goods are so affixed as against subsequent purchasers of the realty for value and without notice of the conditional seller’s title,. unless the conditional sale contract, or a copy thereof, together with a statement signed by the seller briefly describing the realty and stating that the goods are or are to be affixed thereto, shall be filed before such purchase in the office where a deed of the realty would be recorded or registered to affect such realty.”

It is contended by the plaintiff that because of the character of the attachment of the chattel in question, this plaintiff was not obligated to file the notice in accordance with the aforementioned provision. While the method of annexation is admittedly such that the Kelvinator could easily be removed without damage to the realty, that fact by itself does not, to my mind, relieve the plaintiff from the necessity of filing a statement containing the description. That statement, which statement it must be borne in mind is that of the plaintiff itself, says, among other things, that it has— “by agreement attached the said equipment therein described to be attached to said realty * * * so as to be easily severable without material injury to the freehold. This statement is made and given in order to file the same as provided in said act in the office where a deed will be recorded and registered to affect such realty.”

Plaintiff cannot now repudiate its own agreement and statement. The factor of the intention of the parties seems to me to be an important element to be considered. In none of the cases cited by the plaintiff do I find that the element of intention is held to be immaterial. I do find, however, that in the case of Manufacturers Building and Loan Association of Newark v. Public Service Electric and Gas Co., 106 N. J. Eq. 68; 150 Atl. Rep. 196, the court stated:

“The purchaser, having expressly agreed, could not repudiate his agreement and prevent removal.

“The retention of title under conditional sales agreement by vendor, of chattels to be attached to real estate, expresses the intention that such chattels shall not become part of the realty.”

Considering the intention of the parties, so that I might give effect to such intention, and considering that the article in question is so attached as to be severable without injury to the freehold, I feel that the plaintiff was obligated to file the statement required by the statute for this form of annexation.

It is necessary to determine, then, whether the statement required having actually been filed, complies with the requirements of section 7. The defendant admits that if the realty had been correctly described in the statement filed, plaintiff would be entitled to the possession of the Kelvinator. The defendant further contends, however, that notwithstanding that the statement filed describes the premises by lot and plot number, with reference to the municipailty assessment map, correctly, that because the notice also reads “14 Woodward Avenue,” which is incorrect, that the notice is bad. I do not think that this is so.

It is my thought that where the description is indicated as in this case, by street number and name, and also be by a lot and plot number in the municipal map, and these descriptions conflict, the street name and number should be disregarded and the lot and plot number should prevail. And even if this last be not true, as I read the statute under which this notice is required to be filed, the only purpose was to give notice either actual or constructive to subsequent purchasers.

Surely, the defendant cannot say that he had no notice because he chose to disregard the correct address by reason of the statement also containing the incorrect address. The situation, to my mind, is not analagous to a situation urged by the defendant, of a misdescription in a deed causing that deed to be void for uncertainty.

The purpose of the filing was to give notice. The statement contained the correct address and the defendant had notice as to that address. It does not appeal to me that merely because an additional and incorrect address is contained in the notice, that the defendant can say either that he had no notice, or that he was justified in disregarding the notice of the correct address.

Tor these reasons, judgment for possession should be entered in favor of the plaintiff.


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HARRY HIGHAM, PETITIONER, v. PREAKNESS HILLS COUNTRY CLUB, A CORPORATION, RESPONDENT.
    For the petitioner, Nathan Babinowitz.

    For the respondent, Harley, Cox & Walberg.

   The above matter coming on for hearing, and having been submitted to me for decision, I hereby find and determine as follows:

# í¡í ;j; ;|i

2. That the petitioner was employed by the respondent as a golf professional on or about the 1st day of August, 1930, and that he continued in such employment up to the 3d day of August, 1930, that his duties consisted in working, giving lessons to members belonging to the Preakness Hills Country Club, said lessons including playing lessons, that the petitioner was, so engaged at the time he was injured.

3. That the petitioner at the time of the injury received for his services wages amounting to $100 per month.

4. That on the 3d day of August, 1930, the petitioner sustained personal injuries under the following circumstances: On August 3d, 1930, the climatological records from the department of agriculture of the United States government show that the thermometer registered ninety-five degrees Fahrenheit, that during the entire day, the day was extremely hot; that the petitioner began working for the said respondent at eight o’clock on that morning by giving golf lessons to some of the members of the club and that he continued, principally during the course of the day, to be exposed to the sun rays, and that he was obliged to do so in the course of his employment; that on or about four o’clock of the said day, he was requested by Charles Bloom, chairman of the greens committee, and supervisor of the said petitioner to whom he owed the duty of reporting for service, to accompany said Charles Bloom to give him a playing lesson while the said Charles Bloom was engaged in playing with another; that after he had played for a short time, he immediately began to feel dizzy but continued, nevertheless, to plajr until he reached the tenth hole of the course, when the petitioner, in swinging his golf club, suddenly collapsed on the fairway and was taken to the clubhouse and given immediate attention by several doctors who were in the clubhouse at the time. The petitioner was in a state of complete collapse and in a semi-conscious condition. Stimulants were administered to him immediately to revive him. The first aid treatment that was administered, extended over a period of several hours, and the petitioner was then removed to the Barnert Memorial Hospital where he was confined for four days during which time he was attended by Doctors Boemer and Wishnack. He was then ordered by his physicians to seek rest, and go to a cool place and since he had a sister living at Sea Bright, New Jersey, it was suggested that he be attended by her. While at Sea Bright he was attended by Doctor Monahan, who visited him and treated him. Upon his return to Paterson, he was again subjected to further treatment by Doctor David Mendelsohn, who administered electricity and other forms of treatment necessary for his condition. He was treated by Doctor Mendelsohn until sometime in October, 1930, when Doctor Mendelsohn discharged him because he was unable to do anything further for him. During the time that he was at the hospital and while he was at his sister’s home, in Sea Bright, he was attended in both places by three nurses.

The medical testimony produced on behalf of the petitioner convinces me that the petitioner suffered from a sun stroke and that this sun stroke was due to the character of his employment which required him to be necessarily exposed to the sun rays and heat of the day beyond the normal and average player, and by reason of his- exceptional employment in being so exposed, his claim is within the purview of the Workmen’s Compensation act. This bureau has so ruled * * * and the principle has been adopted by the Court of Errors and Appeals in our state in the case of Kauffeld v. G. F. Pfund and Sons, 97 N. J. L. 335; 116 Atl. Rep. 487.

The injuries testified to by petitioner’s physicians is that as the result of the said sun stroke, the petitioner suffered .a partial paralysis of the left arm and a hemorrhage of the cervical spine, which causes a partial limitation of his neck, which has incapacitated the petitioner to the extent that he cannot use a golf club to the same degree of efficiency as he did before the accident, and that he has been advised that exposure to the sun may prove dangerous to him in the future, that in their opinion, the extent of permanent disability sustained is twenty per cent, total disability.

The respondent, on the other hand, produced Doctors Charles B. Bussell and T. A. Clary who testified as follows: Doctor Clay testified that there are instances of where sun stroke leaves no after effects and his testimony was along general lines of medical knowledge on this subject, but he did not examine the petitioner, and therefore knew nothing ■of his condition. The testimony of Charles B. Bussell indicates, however, that he examined the petitioner on September loth, 1930, in the office of Doctor Wishnack and that his examination discloses that there were no after effects. Doctor Bussell admitted, however, that cases of sun stroke generally warrant that care should be taken by the petitioner and admitted that he knew the petitioner was still being treated by Doctor Mendelsohn. Under the circumstances, I feel that after weighing the medical testimony of both sides •and the testimony of the petitioner, that the petitioner has sustained ten per cent, total disability. The petitioner was paid during the course of his temporary disability by the respondent and I cannnot award any payment for compensation for temporary disability. *******

John J. Stahl, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ROSE BARRESSE ET AL., PETITIONER, v. STANDARD SILK DYEING COMPANY, RESPONDENT.
    For the petitioner, William Sheps and Benjamin L. Stein-{Nathan Babinowitz, of counsel).
    For the respondent, Edwin J. O’Brien.

   This is a proceeding brought by Eose Barresse, against the Standard Silk Dyeing Company for compensation for herself and dependents. The claim is based by reason of the death of Francesco Barresse, her husband, who was shot and killed while working for the respondent as a watchman. The respondent admits that the deceased was killed in the course of his employment but denies that his death arose “out of” his emplojunent. The defense urged is that the death of the deceased was due to an act of “horse play” or “skylarking” between co-employes and under our law makes an injury flowing therefrom non-compensable. The case relied upon by the respondent is Hulley v. Moosebrugger, reported in 88 N. J. L. 161; 95 Atl. Rep. 1007. The principle therein established by our Court of Errors and Appeals in that case is that an employer is not liable under the Workmen’s Compensation act to make compensation for injury to an employe which was the result of “horseplay” or “skylarking” so called, whether the injured or deceased party instigated the occurrence or took no part in it. The facts proven in this case, however, .are clearly distinguishable from the ease of Hulley v. Moosebrugger, supra, and in my opinion has no application to the ■case at bar. The incidental duties of the deceased are as follows : On September 20th, 1930, the deceased was employed, ■on the occurrence of his death, as a watchman to guard the property of his employer, a silk dyer. lie was stationed in .a small building adjoining a gate which led into the yard of the dyeing plant. Entrance to the yard of the plant was gained through the gate by request of the deceased who controlled its operation and by passing through the building in which the watchman was stationed. The duties of the deceased as watchman as disclosed from the evidence was to protect and guard his employer’s property which included the duties of restraining persons from entering the premises without first obtaining his permission, and to prevent all “Tooling” around the premises. These duties were imposed upon the deceased by his superior, Charles Stuart, who testified as to the above duties imposed by him on the deceased. Testimony was adduced in which objects were thrown from .a hilltop near the premises and of men congregating near the gate who were ordered stopped by the decedent in aecord.ance with the orders given him by Stuart to stop all “fooling.” The circumstances under which the deceased met his death .show that he was killed in the performance of his duty in preventing and actually stopping an act of “horseplay” by two co-employes, under the following circumstances: While the deceased was on duty in the building adjoining the gate ■and was engaged in conversation with one Fichólas Charicco, ■another employe, one Joseph Oakley, who was employed as a truck driver, entered the building, passed some remark to •Charicco, and swung him around a swivel chair on which Charicco was seated. Oakley entered the yard and Charicco began sharpening his knife on the doorstep of the building in which the deceased was seated and said to Oakley that 'he would cut him, whereupon Oakley drew a revolver which 'had been furnished to him by the respondent and asked ■Charicco, “how would you like to have this P I’ll shoot that: I’ll shoot thatThe deceased turned to Charicco and demanded in Italian that he stop (ferma) whereupon in complianee with the orders of the deceased, he desisted and began to converse with -the deceased for about five minutes when the revolver held by Oakley went off and killed Barresse. The testimony indicates clearly that the deceased was performing his duties imposed on him as a watchman by his superior, Stuart, in attempting to ward off any action on the part of co-emplo3res which might prove harmful. It is also reasonable to conclude from the testimony that the duties of a watchman in fulfilling his contract of service would naturally extend to the avoidance of any act on the part of employes where a knife and revolver were used to order such action on the part of coempies to stop. In Bryant v. Fissel, 84 N. J. L. 72; 86 Atl. Rep. 458, Mr. Justice Trenchard laid down the rule applicable in this case as follows: “An accident arises 'out off the emplo3unent when it is something the risk of which might have been contemplated by a reasonable person, when entering the employment, as incidental to it. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service. And a risk may be incidental to the employment when it is either an ordinary risk directly connected with the emplo3>ment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment.”

In the present case I am of the opinion that the deceased acted in the performance of his duties in attempting to protect his employer by ordering Charicco and Oakley to stop flourishing their dangerous weapons, and I find that in compliance with the orders of the deceased, that the said Charicco desisted and that the fatal shooting by Oakley followed some minutes later is undisputed. Barresse performed his duty and compensation will be allowed.

2. The dependents are as follows:

Name of Each Dependent. Age at Last Birthday. Belation to Decedent.

Bose Barresse ............. 47 Widow

Erank Barresse ............ 13 Son

Theresa Barresse .......... 15 Daughter

Bose Barresse ............. 9 Daughter

3. That the respondent is directed to make payment of the burial expenses not to exceed $150.

4. The legal advisors, Benjamin L. Stein, William Shops and Nathan Babinowitz, of counsel, axe entitled to compensation in the sum of $950 to be paid by the petitioner and $500 to be paid by the respondent.

5. Stenographic fees will be paid by the respondent.

$ $ $

John J. Stahl, Deputy Commissioner.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARGARETTA GRIESBACH, PETITIONER, v. ADAM BLACK & SONS, RESPONDENT.
    Tor the petitioner, Abraham H. Gottlieb.

    Tor the respondent, Harley, Cox & Walburg.

   *******

1. The petition alleges that the petitioner’s decedent, on Tebruary 15th, 1930, at ten a. M., was struck on the right foot by a plank, and that he died on April 7th, 1930. The petitioner who is the widow and only dependent in this case, testified that her husband had worked for five or six years as a whoelright for Adam Black and Sons, the respondent, losing very little time from his work, and that he appeared to be in good health. She testified that about a quarter of one, on Saturday, October 15th, when he came home, he limped and that his foot was all black and blue. She bathed his foot with hot water and salts, and he stayed home a few days and then went to bed. A physician was called on February 21st, the physician being Dr. William Pindar. Dr. Pindar treated the deceased until April 7th, when death occurred. The widow did not have any conversation with the respondent, relative to the alleged accident or death.

The petitioner produced as a witness, Gladys Lutz, a daughter of the deceased, who testified, as she came home Saturday noon, February 15th, she saw her father get out of a street car, and he was limping. She did not say anything to her father, nor did she go home with him, although she herself was going to her father’s for lunch, and did go to her father’s for lunch. She testified, the following noon she called the respondent on the telephone, but there was no one there except the girl that answered the telephone, and that there was no one around the respondent’s plant. She testified that on the day her father died, she saw William Black at the respondent’s place of business, and said her father passed away this morning. She testified further, that William Black said, "I am sorry to hear it,” and that was all that was said.

The petitioner produced Dr. William Pindar, who is the only doctor involved in this case. Dr. Pindar testified that he was called to the home of the deceased on February 21st. On his first examination he found that all the toes were black and that there was gangrene running above the ankle, and that the foot and leg above the ankle was shedding skin. In answer to counsel’s question as to history, Dr. Pindar said, that the deceased told him he had met with an accident and hurt his foot, but did not say anything about the nature of the accident, nor where the accident happened. Dr. Pindar further testified, that the deceased made no other statement. Dr. Pindar further went on to say, that on his second examination of ’the deceased, made the following day, after a pathological examination had been made, that he was of the opinion, that the sole cause of the condition was diabetes melitus and diabetic gangrene, as a result of gradual circulatory changes at the extremity, and that in signing the death certificate, he gave as the cause of death, diabetes melitus, with no contributory cause.

The burden of proof is upon the petitioner to sustain the allegations set forth in the petition in accordance with the decisions of our upper courts. Bryant v. Fissel, 84 N. J. L. 72; Dunnewald v. Steers, 89 Id. 601; 99 Atl. Rep. 345. The proof adduced by the petitioner to sustain this burden must be competent evidence and must be such evidence, that the inferences drawn therefrom are probabilities and not possibilities. Reimer v. Proctor Publishing Co., 85 Id. 441; 89 Atl. Rep. 931, and Price v. New York Central, 92 N. J. L. 429; 105 Atl. Rep. 187; Carlson v. Rosenfeld, 5 N. J. Mis. R. 416; 137 Atl. Rep. 95; LeGrand v. Hubbard & Lange, 8 N. J. Mis. R. 470.

I find from the testimony adduced in this case, that the petitioner has not sustained the burden of proof that death of the deceased was caused by an accident arising out of and in the course of his employment with the respondent, and I further find that the petitioner has not produced any competent evidence from which the court could infer properly, that the deceased sustained an accident arising out of and in the course of his employment..

*******

Charles E. Corbin, Deputy Commissioner.


author: Berry, Y. C.

text:
    Edwin F. Pfeifer et al., complainants, v. Robert A. Reiman et al., defendants.
    [Decided July 8th, 1932.]

      Messrs. Osborne, Qornish <& Soheclc, for tbe complainants.

      Mr. Louis B. Zavin, for the defendant Adolph K. Artke.

      Mr. Albert 0. Kraft, for the defendant Frederick Schill & Company, Incorporated.

      Mr. William, J. Jaeger, for the defendant Theodore August and also for George Hensen, trading as Irvington Hardware Company.

      Messrs. Levy, Fenster & McCloshey (by Mr. Nicholas Yitello), for the defendant Birkenmeier & Kuhn Company, Incorporated.

      Mr. Michael G. Alenick, for the defendants W. A. Thornley & Company, Incorporated, and Bussell C. Gavett.

      Messrs. Bennett & Hanschka, for the defendant Grover C. Porch.

      Mr. Benjamin Cohn, for the defendant Thomas Hoofing Company.

      Mr. Isador V. Davis, defendant, pro se.

      Mr. Harry C. Brown, for the defendant Watchung Garden-Nurseries, Incorporated.

      Messrs. Stickel, Waldeman & Duveneck, for the defendant Bing & Pink.

      Mr. Max Krueger, for the defendant Andrew Isenberg.

      Mr. David H. Yonteff, for the defendant P. Storsberg Company.
   Berry, Y. C.

This is an interpleader suit. The complainants allege that on September 12th, 1930, a written contract was entered into by one Adolph Kulzer with Bobert A. Beiman, under which Beiman agreed to erect a dwelling house in Maplewood, New Jersey, for Kulzer, at a cost of $19,500. Before any work was done or materials furnished the contract was filed in the office of the clerk of Essex county. At the time the contract was executed, and at all times thereafter, the complainants were the record owners of the land upon which the building was erected, and Kulzer was actually the agent of the complainants in executing the contract, although it was not so stated therein, nor was there any record or other notice of these facts to the defendants until after default by the contractor. Eeiman abandoned his contract shortly before its completion leaving unfinished work estimated to cost $610. After deducting this $610 from the money in their hands the complainants had a balance of $4,665.51 for which they admit liability to the contractor, or to persons who furnished labor and material.

Most of the materialmen filed stop notices under section 3 of the Mechanics5 Lien act, some of the notices being directed to the owners and some to Kulzer. In addition, claims were served upon the owners by persons to whom the contractor had given orders and by one materialman who held an assignment.

The total of these claims by the stop notice claimants and assignees was in excess of the funds in the hands of the owners, hence this bill.

On April 9th, 1931, the bill of complaint was adjudged as confessed against all of the defendants, and an interlocutory decree entered.

The taxed costs allowed to the complainants were $192.98, leaving a balance of $4,472.53, which is now on deposit in this court for distribution among the various claimants.

When the case came on for final hearing the parties entered into a written stipulation of facts in which it was agreed that the building contract referred to, with specifications attached, and was filed in the office of the clerk of Essex county on September 15th, 1930, which was before any work was done in the erection of the building; that the contract was between Adolph Kulzer and Eobert A. Eeiman; that Kulzer was referred to throughout the contract as the owner; that there is nothing in the contract to show that he was acting as the agent for the Pfeifers and that the Pfeifers were the owners of record on the date of the execution of the contract, which was September 12th, 1930.

The facts concerning the stop notices and assignees as shown in the stipulation are as follows:

STOP NOTICE CLAIMANTS

Name Date of Filing Directed to Amount
Passa'ie-Bergen Lumber Co. January 17, 1931 Adolph Kulzer $991.81
Watchung Garden Nurseries, Inc. January 21, 1931 Adolph Kulzer 256.00
Andrew Isenberg January 24, 1931 Adolph Kulzer 1.175.00
Birkenmeier & Kuhn Co. February 5, 1931 Adolph Kulzer 283.50
Grover C. Porch February 6, 1931 Adolph Kulzer 1.700.00
Louis Wesson February 7, 1931 Adolph Kulzer 282.00
Birkenmeier & Kuhn Co., Inc. February 7, 1931 Edwin F. Pfeifer and Helen P. Pfeifer This is a duplicate 283.50
W. A. Thornley Co. February 9, 1931 Edwin F. Pfeifer and Helen P. Pfeifer 1,389.11
F. Storsberg February 10, 1931 Adolph Kulzer 500.00
Adolph K. Artke February 10, 1931 Edwin F. Pfeifer and Helen P. Pfeifer 230.00
Thomas Roofing Co. February 10, 1931 Adolph Kulzer former owner—Edwin F. Pfeifer present owner 540.00
Geo. P. Heuser, trading as Irvington Hardware Co. February 11, 1931 Edwin F. Pfeifer, Helen P. Pfeifer, Adolph Kulzer and Robert Reiman 39.75
Frederick Schill & Co. February 19, 1931 Adolph Kulzer 1,152.25
Bing & Fink February 19, 1931 Edwin F. Pfeifer and Helen P. Pfeifer or Adolph Kulzer 185.00
Theodore August February 24, 1931 Edwin F. Pfeifer and Helen P. Pfeifer, Adolph Kulzer and Robert Reiman 182.00
Frederick Schill & Co. March 9, 1931 Edwin F. Pfeifer and Helen P. Pfeifer This is a duplicate 1,152.25

ASSIGNMENTS AND ORDERS

Name Date Amount
Grover C. Porch (assignee) January 24, 1931 $1,700.00
Andrew Isenberg January 27, 1931 1,175.00
Adolph K. Artke January 27, 1931 530.00
Theodore August January 27, 1931 212.00
Reese Metal Weatherstrip Co. (duplicate of Bing & Fink) February 10, 1931 185.00
Russell C. Gavett January 30, 1931 213.45
E. Storsberg Co. February 2, 1931 500.00
(This last order is not mentioned an exhibit.) in the stipulation but appears. as

The exhibits also show that there was one other order '•given, but not - mentioned in the stipulation, to Abraham ..Schottenfeld fot $122, dated January 20th, 1931. There was no statement of claim filed by this defendant, and it may be assumed that it was either paid or abandoned.

The stipulation and the exhibits disclose that the defendant, W. A. Thornley Company, Incorporated, obtained a judgment against the owners specially and against Reiman generally in a mechanics’ lien suit. The claim was filed on or about May 25th, 1931, and the suit started on the same day. Judgment was entered on September 30th, 1931, in the sum of $1,520.90.

It is apparent, therefore, that there are four groups of claimants to this fund, viz.:

1. The mechanics’ lien creditor whose judgment is for $1,520.90.

2. The holders of the assignment and orders whose claims total $4,015.25.

3. Stop notice claimants who directed their notices to the Pfeifers as owners.

4. Stop notice claimants who directed their notices to Kulzer as owner.

The mechanics’ lien claimant, the assignee and the holders of the orders, excepting Gavett, filed stop notices. The total of all claims is $9,082.46.

W. A. Thornley Company, Incorporated, and the holders of the assignment and the orders contend that the only remedy in this ease was by lien claim, and that the filing of stop notices was ineffective for the reason that the building contract was not signed by the owner of record as required by section 2 of the Mechanics’ Lien act as amended in 1930.

Prior to the amendment the wording of section 2 of the statute was as follows: “Whenever any building shall be erected in whole or in part by contract, in writing, such building and the land whereon it stands shall be liable to the contractor alone for work done or materials furnished in pursuance of such contract, &c.”

It was held under this statute that if the contract was signed by an authorized agent of the owners it was sufficient to deny to everyone except the contractor the privileges of filing mechanics’ liens. S. A. Willetts & Co. v. Earl, 53 N. J. Law 270; 21 Atl. Rep. 327.

The amendment adopted in 1930 required that the contract shall be signed by the owner, the language of the amended section being as follows:

“Whenever any building, or an addition to any building, shall be erected, constructed, completed, altered or repaired in whole or in part by contract in writing, signed by the record owner of the estate or interest in the land which is to be charged with the lien hereunder, such building', and the land whereon it stands, to the extent of the estate or interest so charged, shall be liable to the contractor alone for the work done or materials furnished in pursuance of such contract.”

The amendment went into effect on September 1st, 1930, and the contract in this case was made on September 12th, 1930. The record owners at the time of the execution of the contract were Edwin E. Pfeifer and Helen P. Pfeifer. The contract was signed by one Adolph Kulzer. The filing of the contract did not preclude the right of: mechanics’ liens and did not make available the remedy by stop notice. Weaver v. The Atlantic Roofing Co., 57 N. J. Eq. 547; 40 Atl. Rep. 858; English v. Warren, 65 N. J. Eq. 30; 54 Atl. Rep. 860.

In the Weaver Case the building contract was filed without specifications. A number of materialmen served stop notices upon the assumption that the filing of the contract effectually prevented the filing of liens by anyone but the contractor. Some materialmen served upon the owner orders for payment of money given to them by the contractor.

The owner filed a bill of interpleader. The defendants filed answers substantially admitting the facts set forth in the complainant’s bill, but disputing as between themselves the priority of their several claims upon the fund. A decree was made to the effect that the complainant was entitled to the relief prayed for and that the defendants interplead and adjust their claims upon the fund as between themselves. An agreed statement of facts was entered into by all the defendants.

Vice-Chancellor Grey held that the filing of the contract without the specifications did not relieve the land from liability to lien, and that consequently workmen and material-men had no right to resort to the remedies provided by the third section of the statute. In his opinion he said (page 552):

“This condition renders ineffectual all the notices claimed to have been given by workmen and materialmen to the owner to retain and pay from the contract price, by virtue of the provisions of the latter section. All who were in this class of creditors of the contractor had their remedy by filing a lien claim under the first section and the other provisions of the act, from which they were not precluded by the filing of the contract alone.

“The effect of this situation was that the contract price was left in the hands of the owner open to the disposition of the contractor by giving orders upon it in the nature of equitable assignments.”

As to the form of the assignments with which he had to deal he said, “that no particular form of words is necessary to constitute an equitable assignment. Any writing or act which indicates the intent of the assignor to make an apropriation of the fund, or part of it, will in equity be enforced as an assignment.” He distributed the fund among the holders of the assignments.

Vice-Chancellor Pitney reached the same conclusion in the ease of English v. Warren, supra.

There is an intimation in the opinion of Mr. Justice Collins in the case of Murphey-Hardy Lumber Co. v. Nicholas, 66 N. J. Law 414; 49 Atl. Rep. 447, that where a filed contract did not state the true consideration and a materialman filed a lien claim, there was nevertheless open to him the right to file a stop notice.

On page 419 Mr. Justice Collins said:

"It is argued that because, as was decided in Smith v. Dodge & Bliss Co., 14 Dick. Ch. Rep. 5.84, a secret arrangement between owner and builder variant from the filed contract will not defeat a claim under section 3 of the act, therefore the plaintiff's remedy in the present ease is under that section. Doubtless, resort might have been had to that section —-perhaps it may be in any case—but that remedy is not inconsistent with the lien given by section 1. * * *”

In view, however, of Weaver v. The Atlantic Roofing Company and English v. Warren, it is not open to question in this court that where the right of mechanics' lien is available the filing of stop notices is improper and ineffectual.

The amendment of 1930 requires that the contract be signed by the record owner in order that the materialmen and laborers shall be precluded from the right to file a mechanics' lien. Here, such a contract not having been filed, the right to file a lien remained and there was no remedy by stop notice under section 3. That the several claimants were decreed to interplead, that they filed statements and supplemental statements, and that the court took jurisdiction, is immaterial. Yice-Chancellor Grey had the same situation before him and held the stop notice ineffective.

It is unnecessary, therefore, to pass on the objection made in this case to those stop notices which were directed to the agent instead of the owners.

The controversy is thus confined to the mechanics’ lien claimant, the holder of the assignment and the holders of the orders.

The mechanics’ lien claimant filed a notice of intention as required by the amendment to the act on October 10th, 1930. It filed its lien and started suit within four months from the last date of the furnishing of material, and then entered judgment in due course, generally against the contractor and specially against the land and building.

While it has long been the established law of this state that the court of chancery has no power to enforce a mechanics’ lien claim, that right being given exclusively to the law courts, it was nevertheless held by Vice-Chancellor Van Fleet in Dalrymple v. Ramsey, 45 N. J. Eq. 494 (at p. 497); 18 Atl. Rep. 105 (at p. 106), that:

“Where a court of equity has acquired jurisdiction of a suit upon some well-established ground of equity cognizance, and the decision of the suit renders it necessary for the court, in order that full and complete justice may be done to all parties, to pass upon the rights of a person claiming a lien under this statute, the court may, in that case, settle, and determine his rights, but not otherwise. * * *”

If the court should hold that W. A. Thornley Company, Incorporated, the mechanics’ lienor, must satisfy its judgment out of the land without recourse to the fund in court, and if the fund were paid over to the contractor or his assignees, the result would be that the owners would be paying the Thornley claim twice. This would be inequitable. They are entitled to have the fund first applied in satisfaction of the lien on their land. It might also result that the contractor himself would get báck a part of the fund if the assignments aggregated less than the fund, even though he failed to pay the general judgment against him; but he has no equitable right to any of the money under such circumstances. He cannot be unjustly enriched at the expense of the owners; and the rights of his assignees rise no higher than his own. The money paid into court could have been used by the owners to pay the mechanics’ lien judgment had the claim been filed before the institution of this suit; and the court has taken jurisdiction under a well-established ground of equity practice and has all of the parties before it.

The lien claim rights of W. A. Thornley Company, Incorporated, date back to the beginning of the building and antedate the assignment and the orders and this claimant should be paid first out of the money in court and the land relieved of its lien. The balance of the fund should be distributed, as far as'it will go, among the assignee and those holding orders drawn by the contractor on the owners in the order of their respective dates of execution, there being no evidence that any of them were accepted by the owners. They are nevertheless valid in equity.

I shall advise a decree in accordance with these conclusions.


text:
    GIUSEPPE MEGARO, PLAINTIFF, v. EMIDIO CORDASCO AND MARIA CORDASCO, DEFENDANTS.
    Argued May 3, 1932
    Decided July 13, 1932.
    Before Justices Trenchard, Case and Brogan.
    For the rule, Carl and William Abruzzese.

      Contra, Anthony R. Finelli.

   Per Curiam.

The defendants obtained this rule requiring the plaintiff to show cause why plaintiff’s judgment should not be satisfied of record. The case was argued orally but neither side has seen fit to furnish the court with any brief.

No copy of the judgment in question has been laid before the court. There is presented to us the affidavits upon which the rule to show cause was obtained, but these of course cannot be used to sustain entry of satisfaction of the judgment. Hankinson v. Hummer, 12 N. J. L. 64. Depositions were taken under the rule and have been laid before us.

The depositions tend to show that the judgment was entered May 4th, 1925, for $1,166 damages and $38.10 costs; that on February 1st, 1926, the plaintiff received a payment of $600 on account of the judgment; that on February 17th, 1927, the attorney of defendants paid to the sheriff (who had an execution in his hands) “on account of this judgment” $770, who, after deducting $98.97 costs, paid to the “attorney of the plaintiff” the remainder of the $770. It would therefore seem, if such payments were made wholly on account of the judgment, that it has been fully paid, unless there were other costs or fees payable on account of the j udgment.

The plaintiff claims, as we see it, that such payments were not wholly made on account of such judgment, and also that there were other costs or fees which still remain unpaid, and in the deposition he says that there is still due “about $300.”

The defendants on the other hand claim broadly that the judgment has been fully paid.

The matters pertinent to this issue, so far as they appear in the depositions, are so meagre and confused, and so imperfectly stated, that it is impossible for us to satisfactorily determine the fact. This is so with respect to the question whether or not the payments made were wholly on account of the judgment, and is also true with respect to the broad claim made by the plaintiff that there were other costs and fees unpaid on account of this judgment, among others, certain fees or costs of reinstating the judgment after it had been improperly if not fraudulently canceled on January 29th, 1926.

Standing in the way of a determination that the judgment has been fully satisfied, is this pertinent piece of evidence appearing in the depositions. It appears that on September 3d, 1927, there was outstanding an alias execution; that on that day the Chief Justice granted a rule to show cause why proceedings thereon should not be stayed and the alias execution be quashed and the judgment canceled of record. Pending that matter, on September 30th, 1927, the attorney of the defendants wrote a letter to the attorney of the plaintiff, as follows:

“I have arranged with my clients to allow you the sum of $100 for your fees in the Megaro matter. My clients do not happen to have the money at hand, but they faithfully promised me to turn over this sum to me the latter part of the coming week. I am therefore enclosing a stipulation extending the time for the argument of the rule to show cause for two weeks and I trust that in the meantime a satisfactory arrangement can be effected. Will you therefore please sign the original stipulation and keep the copy for your files.”

The depositions show that this offer of compromise was accepted, but the $100 was never paid, and that the rule to show cause then outstanding was abandoned. This is uncontradicted.

We have thus referred to what seems to us to be some of the pertinent matters, such as they are, as exhibited by this meagre record, which, upon the whole, is so imperfect and unsatisfactory as to leave us in doubt as to the only question with which we are concerned, namely, has this judgment been fully paid ?

In this situation we think it would be improper for us to act, for the rule is that the court will not order satisfaction of a judgment to be entered unless the proof of payment thereof is full and satisfactory. Hankinson v. Hummer, 12 N. J. L. 64.

The rule will be discharged, but without costs.


author: Pee Cubiam.

text:
    SAMPSON W. JOHNSTON AND ELEANOR F. JOHNSTON, HIS WIFE, PLAINTIFFS, v. MORRIS E. HAUSEMAN AND SALLIE R. HAUSEMAN, HIS WIFE, DEFENDANTS.
    Argued May 3, 1932
    Decided July 13, 1932.
    Before Justices Teen chard, Case and Brogan.
    Bor Sallie E. Hauseman, William Charlton.

    Bor the plaintiffs, T. Philips Brown.

   Pee Cubiam.

On November 19th, 1926, Morris E. Hauseman and Sallie It. Hauseman, his wile, who had been married and had lived together for forty years, executed a mortgage to secure a bond, executed by them, upon property in Cape May county, which land and premises were owned solely by Morris E. Hauseman, the wife having only an inchoate dower interest. The depositions show that all of the moneys received from the mortgagee went solely to the benefit of Morris E. Hauseman and were used by him to pay bills for the construction of the buildings which he erected upon the mortgaged lands, and that Sallie E. Hauseman, the wife, received no part thereof. The mortgage was foreclosed and a deficiency arising at the sheriff’s sale, judgment by confession upon the bond accompanying the mortgage was entered in this court against both Morris E. Hauseman and Sallie E. Hauseman, husband and wife. This is a rule to show cause why that judgment should not be vacated, so far as it applies to Sallie E. Hauseman.

Under similar facts this court, in the case of Hamburger v. Hamburger, 8 N. J. Mis. R. 3; 148 Atl. Rep. 15, decided that a married woman was not liable on a judgment confessed on a bond in similar circumstances. Examinations of that case indicates that it is identical with the facts herein. Attention is called to the fact that the mortgage in the present case was executed prior to the passage of Pamph. L. 1927, p. 33.

The holding in the Hamburger case was this: “A married woman held not liable on judgment confessed on bond executed by husband and wife, where husband was sole owner of property mortgaged to secure bond, wife having only an inchoate dower interest, and proceeds of the mortgage going exclusively to benefit of husband (Pamph. L. 1927, p. 33), enacted at a later date being inapplicable since it is not retroactive.”

Upon the authority of that case the judgment under review, in so far as it affects Sallie B. Hauseman, will be vacated and set aside, with costs.