author: Palmer, C. C. J.

text:
    Camden County Circuit Court.
    EVELYN CROFT, PLAINTIFF, v. THOMAS W. BUNTING, WILLIAM H. TIEDEKEN, THEODORE C. TIEDEKEN AND EARL C. TWITCHELL, DEFENDANTS.
    Decided November 17, 1937.
    For the plaintiff, Joseph Beck Tyler.

    For the defendants: Boyle & Archer (William T. Boyle), and Ralph N. Kellam.

   Palmer, C. C. J.

Four cases in which the above named plaintiff is the plaintiff in each one and the above named defendants the respective defendants in each case, have been submitted to the court upon testimony, stipulations and briefs. The suits are to recover upon promissory notes each one signed by a separate defendant, dated December 16th, 1930, payable five years after the date thereof, at the office of Joseph H. Carr, pursuant to an agreement bearing the same date signed by the plaintiff and defendants. The notes are identical except as to the amounts, which are different in each case.

The testimony shows that the plaintiff is the present holder of these notes. Each note contains the following memorandum: “Pursuant to agreement dated December 16th, 1930.” This agreement is offered as part of the plaintiff’s case. No testimony was presented by the defendants other than certain portions of the ñle of a foreclosure suit. The determination of the liability of the defendants on their respective notes depends entirely upon the interpretation to be placed upon this agreement of December 16th, 1930.

In the agreement the defendants, together with some other persons, are designated as the “Moran Group,” which term will be used in this memorandum. The agreement recites that the “Moran Group” had procured an offer in writing for the sale to the plaintiff for the sum of $87,500 of a certain bond and mortgage made by the plaintiff to Ephraim T. Gill, dated March 26th, 1923, covering certain lands in the borough of Barrington, in the county of Camden: that there was then due on said bond and mortgage with then existing costs of foreclosure, the sum of $115,000. It further recites that the plaintiff desired to destroy the bond which was her personal obligation, that accompanied said mortgage, in order to eliminate any future liability to respond for any deficiency that might thereafter be incurred on a foreclosure of said mortgage, and that the defendants, together with the “Moran Group,” were stockholders in Haddonstock Corporation, the then owner of the lands covered by the mortgage, and further, that the members of the said “Moran Group” had interests in mortgages made subsequent to the date of the mortgage here in controversy.

The agreement will be analyzed in paragraphs, as follows:

1. The agreement provides that the plaintiff, upon acquiring said bond and mortgage, might destroy the bond without impairing the validity of the mortgage, and the “Moran Group” undertook to obtain an agreement from the Haddonstock Corporation recognizing the validity of the mortgage, notwithstanding the destruction of the bond and would procure further a declaration from the Haddonstock Corporation that there was then due on said mortgage at least the sum of $87,500 with interest from December 16th, 1930.

2. There was to be no merger of the mortgage as a result of this agreement.

3. In this paragraph the plaintiff agrees to sell and the “Moran Group” agrees to buy said mortgage for the sum of $43,750 and to pay for the same within five years from the date thereof, and to pay interest semi-annually on said sum of $43,750. It then apportions the proportion of this sum to be paid by the several members of the “Moran Group.”

4. This paragraph provides that in the event of the default of any member of the “Moran Group” in paying his share of the purchase price and interest on such purchase price, he should lose his share or interest in the mortgage, and the other members of the “Moran Group” were to take up such defaulting member’s interest.

5. The fifth paragraph stated that the plaintiff should be under no obligation to assign the bond with the mortgage when conveyed to the “Moran Group.” Obviously if the bond was destroyed there could be no assignment of it.

6. The sixth paragraph states that inasmuch as the plaintiff would sustain a loss by the sale of this mortgage to the “Moran Group,” the members thereof agreed that they would make up such loss if and when they received dividends on their stock in the Haddonstoek Corporation, and they agreed to pay to the plaintiff such loss if and when they received two-thirds of their actual investment in the Haddonstoek Corporation and in their mortgages on its lands.

7. The seventh paragraph provides that the obligation of the “Moran Group” under this agreement should remain without respect to whether or not the lands covered by the mortgage should be sold by tax sale or otherwise.

8. The eighth, ninth and tenth paragraphs of the agreement relate to details which have no bearing upon the present controversy.

11. The eleventh paragraph limits the amount to be paid to the plaintiff to the sum of $87,500, the amount paid by her for the bond and mortgage, but that such limitation should not operate as reducing the amount alleged to be due as principal and interest on the said mortgage so far as the “Moran Group” was concerned. This provision gave to the “Moran Group” as against the Haddonstock Corporation, the owner of the lands, the right to claim and collect the full face value of the mortgage.

12. Paragraphs twelve to eighteen inclusive, regulate the details of the management of the land covered by the mortgage and have no bearing upon the present controversy.

19. This paragraph provides that as long as the “Moran Group” is not in default in the obligations hereby imposed, there would be no foreclosure of the mortgage, nor call for its payment. This was designed for the protection of the defendants and the Haddonstock Corporation against probable foreclosure of the mortgage so that there would be no hindrance to the further development and sale of the lands covered by the mortgage.

The testimony shows that the plaintiff acquired the bond and mortgage in question and presumably destroyed the bond which accompanied said mortgage, and that the “Moran Group” for a period of two years thereafter paid interest upon the purchase price of the mortgage in accordance with the terms of the agreement, that is, until December 16th, 1932. That thereafter the plaintiff foreclosed the mortgage and organized a corporation to take title upon the foreclosure sale which was for a nominal consideration.

The question to be determined is the liability of the defendants to respond for the amount of their respective notes, which question must be determined by an interpretation of the terms and conditions of the agreement and the objects that it sought to accomplish. This is an integrated bilateral agreement.

“The ascertainment and effectuation of the intention of the parties, as manifested by the language employed and the objects to be accomplished are the ends to be served in the interpretation of written contracts.” Corn Exchange Bank v. Taubel, 113 N. J. L. (at p. 609); 175 Atl. Rep. 55.

The purposes and objects sought to be accomplished by this agreement were first as to the plaintiff to absolve her from future probable personal liability on her bond in the event of a foreclosure of the mortgage by the then holder, and a deficiency decree entered against her upon which suit might he brought, and to insure to her the amount that she paid for the mortgage, namely, $81,500.

As to the defendants and other members of the “Moran Group,” the object of the agreement obviously was to secure to them control of the first mortgage on their own property in the sense that they were stockholders in the Haddonstock Corporation, the then titleholdor, and to make secure to them the interests that they had in subsequent mortgages on this same land, and to obviate the then threatened foreclosure proceedings which would have in all probability resulted in severe losses to them. The plaintiff was to benefit by the elimination from future consideration of her bond, and obviously she was apprehensive as to this future condition, and to the defendants who then were threatened with the foreclosure of the first mortgage on their lands they were thus able to control, to some extent at least, such a foreclosure, and thereby enabled them to proceed with the further development and sale of the lands covered by the mortgage. The existing condition had been brought about by the then economic condition of the country, making it practically impossible to proceed further with the land development schemes. And the agreement would at least give to the defendants further time in the hope that changing conditions in the then future would enable them to proceed further with their land development schemes.

Obviously, the plan failed so far as the defendants are concerned, as the file in the foreclosure suit before me shows that the mortgage held by the plaintiff was foreclosed and that the members of the “Moran Group” were made parties defendant to said foreclosure suit by reason of subsequent mortgages held by them, and that the result of the foreclosure suit was to deprive the members of the “Moran Group” of all interest in the lands in question by reason of the sale under the first mortgage. So that to them the scheme was a failure and they lost not only their interest in the stock of the Haddonstoek Corporation, but also whatever interest they had as holders of subsequent mortgages.

It is argued that there has been a default on the part of the members of the “Moran Group.” Under the provisions of the seventh paragraph of the agreement, which provided that the obligation of the defendants was to remain, regardless of whether or not the lands covered by the mortgage were sold at tax sale or otherwise, and it is argued that they are bound to pay the note regardless of the fact that the sale that has taken place was a foreclosure sale. It is argued that the phrase, “Sold at taz sale or otherwise,” includes a sale under foreclosure proceedings. I am unable to agree with this interpretation of that language. A “taz sale” would be subject to redemption by the owner, while the sale under the foreclosure proceedings to all practical purposes put an end to the legal existence of the mortgage, and there could be, therefore, no subsequent delivery of the mortgage to the defendants under the terms of the agreement.

It is further argued that there has been a default and a breach of the contract on the part of the members of the “Moran Group” by reason of the failure to pay interest on the purchase price for the mortgage after December 16th, 1932, and that by reason of such breach the plaintiff can insist upon the payment of the amount of the notes involved in this litigation. This breach I take to be only a partial breach of the contract, and there was given to the plaintiff a legal remedy for such a breach; that is, the right to bring suit for the interest due upon the purchase price of the mortgage at the time that there was a failure to pay such interest.

It is to be observed that the agreement does not provide for any acceleration in the time for the payment of the principal by reason of the failure to pay interest when due. This failure to pay the interest by the defendants was not such a material breach of the terms of the contract as to excuse the plaintiff from performing her part of the contract, namely, to deliver the mortgage at the time called for its delivery, that is, five years after the date of the agreement. The plaintiff in this suit abandons all claim for interest alleged to have been due periodically, and the default in the payment of which she alleges was a breach of the contract, and seeks to recover now only interest from December 16th, 1935, the due date of the note and the time when the plaintiff was to deliver the mortgage to the members of the “Moran Group/' This would seem to indicate that the plaintiff did not regard and does not now regard the failure to pay the interest by the defendants upon the respective due dates thereof as a breach of this contract.

I am of the opinion that the failure on the part of the defendants to pay interest periodically upon the purchase price of the mortgage was only a partial breach of the contract and not so material as to absolve the plaintiff from her obligation to deliver the mortgage on December 16th, 1935. Blackburn v. Reilly, 47 N. J. L. 290; Vine v. Kennedy, 2 N. J. Mis. R. 774.

If there was then only a partial breach of the contract on the part of the defendants by reason of their failure to pay interest periodically when due, which breach was not material so far as the obligations of the plaintiff to deliver the mortgage and demand the purchase price on December 16th, 1935, is concerned, then the plaintiff cannot recover in this suit, because at the time called for by the terms of the agreement for the delivery of the mortgage she, by her affirmative action in foreclosing that mortgage, has made it impossible for her to comply with the terms of the agreement.

The foreclosure of the mortgage and the sale thereon destroyed the mortgage as a legal existing obligation, and because of such destruction it was beyond the power of the plaintiff to fulfill her part of the agreement by making delivery of the mortgage at the time called for in the agreement. The defendants are therefore entitled to judgment in their favor in each case.


source: Caselaw Access Project

author: Berry, V. C.

license: Public Domain

text:
    Frank Fleming, complainant, v. Motion Picture Operators of Essex County, New Jersey, Local No. 244, &c., defendants.
    [Decided July 16th, 1937.]

      Messrs. McCarter & English, for the complainant.

      Mr. Andrew B. Crummy, for the defendants.
   Berry, V. C.

The bill seeks to compel the defendant union to restore complainant to membership therein. The matter is before the court on the return of an order to show cause why a temporary injunction should not issue requiring the reinstatement of complainant in the union and in his former job pending final hearing.

The essential facts seem not to be in dispute. Complainant was expelled from the union on December 31st, 1936, for non-payment- of dues. Since his expulsion he has tendered the arrearages to the treasurer and applied for reinstatement. The tender was refused on the ground that complainant was no longer a member; that he had not been suspended but expelled and that he would have to make application for election to membership and be balloted upon the same as any new applicant.

Complainant alleges that the most severe disciplinary action which the local union had power to take against him for non-payment of dues was to suspend him with the right to be reinstated upon payment within six months, without being balloted upon. The relative rights of the parties depend entirely upon the provisions of the constitution and by-laws of the local union and of the International Alliance of Theatrical Stage Employes and Motion Picture Machine Operators of the United States and Canada, with which the defendant local is affiliated.

It is provided in section 12 of article 20 of the constitution of the International Alliance that “members may be expelled without trial by local unions for non-payment of dues and other financial obligations A

Section 16 of the same article provides, inter alia:

“Members who have been expelled from this alliance may be reinstated only upon application for admission as new members in the mailer set forth in Section 2 of this Article; * *

The action taken against complainant came at a time when he was almost two years in arrears. It would seem that perhaps the formal action taken was unnecessary, for section 8 of article XIV of the constitution of the defendant local, provides, inter alia:

“Any member allowing himself to remain in arrears for one year shall be automatically expelled and dropped from the rolls as a member of the local and must make application as a new member and be submitted to all laws governing same.”

Complainant also charges the defendant with having wrongfully caused him to lose the employment which he enjoyed prior to his expulsion, but this is categorically denied in the affidavit submitted in behalf of the defendant.

In this posture of the proofs, complainant clearly is not entitled to an injunction pendente lite and accordingly the order to show cause will be discharged.


text:
    Frank Fleming, complainant, v. Moving Picture Machine Operators of Essex County, New Jersey, Local Mo. 244, &c., et al., defendants.
    [Decided January 31st, 1938.]

      Mr. Nathan W. Franzblau, for the complainant.

      Mr. Andrew B. Crummy, for the defendants.
   Berry, V. C.

This suit is an aftermath of the decision of this court in the consolidated cases of Collins v. International Alliance, &c., and Maglio v. Moving Picture Machine Operators of Essex County, New Jersey, Local No. 244 et al., reported in 119 N. J. Eq. 230; 182 Atl. Rep. 37. The complainant by this bill seeks his reinstatement as a member of Local No. 244. He was expelled by action of the executive board on December 21st, 1936, for non-payment of dues and this action was later, on January 19th, 1937, confirmed by vote of the members.

The complainant was one of the so-called senior members who, as complainants, joined fhe juniors in their fight for complete membership in Maglio v. Moving Picture Machine Operators, &c., supra. In that litigation the juniors were accorded the right to full membership in the union upon payment of the required initiation fee, &c. The final decree entered therein required the juniors to pay the necessary sums for admission on or before August 29th, 1936. The complainant in this cause, however, was not a junior; he was a so-called senior who with many other seniors had joined the juniors in that litigation and at the time of the entry of the final decree in that cause he and others were in arrears in the payment of their dues. In September, 1936, as appears from the minutes of a meeting of the executive board, an arrangement was made whereby the complainant was to pay the local $25 per week until his arrearages were made up, and to assist him the business agent procured for him an additional day’s work every week at about $12 per day, which the testimony shows lasted for about seven or eight weeks. Complainant paid onty $95 during this period in three payments of $25 each and one of $20. On December 14th, 1936, the executive board of the local took action with respect to a number of the so-called juniors who had not paid the amount of the initiation fees and dues as required by the final decree in the prior litigation, and extended the time for such payments by them to Monday, December 21st; and the secretary was instructed to notify these men that the zero hour would be December 21st, 1936, at twelve o’clock noon, and that failure to comply with the notice would result in their expulsion from membership in the local. The minutes of that meeting also contain the following record :

“The Treasurer also called to the attention of the board the cases of Bro. F. Fleming who owed 309.00 and Bro. R. Webb who owed 315.00 who according to our by laws stood expelled they being over one year in arrears in their dues The Board instructed the Treasurer to notify both of these Bros, that unless they paid their dues by 11.00 of Jan 21, 1936 they would be expelled as per Const, by laws local 244 Article 14, Page 20 & 21, Section 8.”

(Obviously the year referred to in this extended date was 1937 instead of 1936.)

On the following day, December 15th, the treasurer sent the following notice to the complainant:

“December 15th, 1936.
Mr. Frank Fleming
125 Atlantic Avenue
Long Branch, N. J.
Dear Sir & Bro.:—
You are hereby notified to appear before the Executive Board Monday December 21st 1936 at 11 A. M. at the Local Office. Regarding your indebtment of $309.00 with must be paid in full on the above date. Failing to do so you will be suspended according to the Local’s By-laws Article 14 Section 8.
Fraternally yours,
William C. Uesslise,
Treasurer.”

The by-laws of the union provide for automatic expulsion of a member for non-payment of dues upon his becoming in arrears for more than one year, but the customary practice was for the executive board to act on each individual case of delinquency. As shown in the Maglio Case, supra, dues were veri' high and amounted practically to extortion. The exactions from the junior members with a weekly salary up to $50 were ten per cent, of that amount and fifteen per cent, of the salary received above $50, so that, as appears from the opinion in the prior litigation, a member who received a salary of $100 a week would be obliged to pay $12.50 per week or $650 a year, plus $36 in dues, as tribute for the right to work. The evidence in the instant case shows that the complainant’s dues amounted to $180 per annum. This is the regular rate previously applicable only to seniors.

Notwithstanding that the executive board had extended the time for complainant to make up his arrearages of dues to January 21st, 1937, the treasurer, for some unexplained reason, notified him to pay up by December 21, 1936, the date fixed as the deadline for the junior members as above stated. This notice was sent to complainant by registered mail addressed to him at his home in Long Branch. The letter arrived there on Thursday preceding Monday, December 21st, but as complainant was working in Essex county he did not actually receive it until Saturday, December 19th. The secretary, Mr. Oppenheimer, who wrote the minutes of the executive board meeting of December 14th, 1936 (these minutes being written np while the board was in session and as the different matters were taken up and disposed of) says that the minutes of that meeting referring to the complainant’s arrearages were written in error and that the extended date for payment should have been December 21st, 1936, instead of January 21st, 1937; but he also testified that the minutes as written were approved at the following meeting of the board and later at a meeting of the members. He apparently did not discover his error, if any, until the date of the final hearing; at least there is no indication that he did and there was no attempt at correction before or after the minutes were approved. However, I prefer to rely upon the minutes of the meeting written while the meeting was in progress rather than upon the testimony of the secretary whose testimony cannot be received at its face value. I do not consider him a credible witness. Much of his testimony in the former litigation, of which I have a very vivid recollection, was false; and it has been demonstrated in this cause that he has testified falsely here also; nor is the testimony of Kaufman, the business agent, of any greater value. I find as a fact, therefore, that the time for the payment by complainant of arrearages of his dues was extended to January 21st, 1937.

On Monday, December 21st, 1936, following the receipt of the treasurer’s letter, the complainant went to the office of the defendant local at shortly after ten o’clock in the morning, but was not admitted to the board meeting until after eleven o’clock when he was told that he was too late; that the deadline was eleven o’clock and that he was out. He explained that he had not received the notice until Saturday, December 19th; that he did not have the money necessary to pay his arrearages and had not had time to borrow it; but that if given a few days he would be able to do so. He was told that he was out, and that was all there was to it. However, the following Monday, December 28th, complainant again went to the office of the local, having in the meantime borrowed sufficient money from a friend to pay his arrears of dues, and he then tendered to the executive board, which was in session, and its secretary, $309 in cash in payment of his arrears of dues, but it was refused. He then went directly to the office of counsel who had represented him in the previous litigation and consulted Mr. Ward J. Herbert, of the firm of McCarter & English, who communicated with the secretary of the local by telephone and endeavored to persuade him to accept the money, but without success. The cash was later, at about the time of the filing of this bill, turned over to Mr. Herbert, who apparently still has it; and he has offered it to the local on different occasions in the meantime, but without success. The secretary, Mr. Oppenheimer, denies that the complainant returned with the money and tendered it on December 28th, and the business agent corroborates him; but as already stated 1 do not consider either of these witnesses worthy of belief; and evidence corroborative of complainant’s story indicates that these two officials testified falsely. A member of the defendant local, whose name I do not for the moment recall, testified that he was in the local office on the morning of December 28th, 1936, and saw complainant there also, and that complainant said he had the money to pay his back dues and showed him a roll of bills. In answer to questions propounded by the court as to the source of the cash tendered to the local by the complainant, he testified that he had borrowed it from a friend and neighbor in Long Branch; and at my suggestion the final hearing was adjourned to chancery chambers in Long Branch where further testimony was received. Complainant’s friend and neighbor, a Mr. Granetti, who is manager of a chain grocery store in Long Branch, and who has been there employed for seventeen years last past, and as to the truthfulness of whose testimony there cannot be the slightest doubt, testified that on December 26th, 1936, he loaned the complainant $400 in cash, $300 of which he withdrew from his savings account in the Long Branch Trust Company. He produced his bank book, and the bank, through one of its officers, produced its records, which showed the withdrawal by the said Granetti of $300 from his savings account at that bank on December 26th, 1936. This witness testified that he had the additional $100 in his pocket and he also produced a note or receipt drawn by him in his own handwriting and signed by the complainant and the complainant’s wife in which the receipt of $400 in cash was acknowledged and the signers of the paper agreed to repay it and pay interest at six per cent, thereon monthly until paid. Granetti said the money was loaned to Fleming, the complainant, expressly to pay his arrears in dues and to secure his reinstatement. The proof that complainant was in funds for the payment of his delinquent dues on December 28th, 1936, I consider to be positive and conclusive, and in view of this proof I have no hesitancy in saying that I find as a fact that, on December 28th, the complainant went to the office of the defendant local and tendered $309 in cash to the local and its secretary in payment of the arrearages in his dues owing at that time and that it was refused. There is other testimony indicating a continued effort on the part of the complainant to induce the defendant local to accept the money which he had tendered. Although the constitution and by-laws of the local provided for no appeal from the action of the executive board in expelling a member for non-payment of dues, the complainant and his counsel were told by the secretary of the union that complainant might have the benefit of an appeal to the members and accordingly the matter was brought before a meeting of the members on January 19th, 1937, by a Mr. Higginson, who was also a member of the local. Mr. Higginson testified that he had sufficient moneys in his pocket at that time to pay the arrears in the complainant’s dues, together with a $5 fee for reinstatement. He testified that this would require $314, and that he had that amount in his pocket at the time. Complainant testified that he had given this sum of money to Mr. Higginson for that purpose. The credibility of this testimony was seriously impaired on cross-examination, and I am uncertain whether or not the witness Higginson was in funds for the payment of complainant’s arrearages on January 19th, 1937, and I am uncertain also as to whether or not sufficient moneys had been turned over to Mr. Higginson by the complainant; but, in the view I take of this matter, what the facts are touching that point is immaterial. The minutes of the meeting on that day show that Higginson did appear and make a motion for the complainant’s reinstatement, which motion was lost. But the important fact is that the complainant tendered the necessary amount of cash to the local in payment of his delinquent dues on December 28th, 1936, long prior to the expiration of the grace period fixed by the executive board on December 14th, 1936, and that this tender was refused. It is true that under the provisions of the by-laws the executive committee might have refrained from taking any action to extend the time for payment of delinquent dues, and by a strict enforcement of these provisions the expulsion of the complainant would have ensued automatically; but it did not do that. It was customary for the union to be lenient with members touching the payment of their dues, and to give them additional time beyond the one year period when necessary — and the exactions from the members often made it necessary. In granting an extension of time to the complainant the local was but following its usual custom. Having extended the time within which complainant could pay his arrears to January 21st, 1931, the refusal of the local to accept the $309 when tendered was unjustified and the complainant’s expulsion illegal. The complainant has been a member of the defendant local for many years. His membership is a valuable property right of which he cannot be deprived by arbitrary and unjustifiable action of the officers of the local. Lo Bianco v. Cushing (Court of Errors and Appeals), 115 N. J. Eq. 558; 171 Atl. Rep. 558; 117 N. J. Eq. 593; 177 Atl. Rep. 102; affirmed, 119 N. J. Eq. 377; 182 Atl. Rep. 874. As is shown by the opinion of this court in the Collins and Maglio Cases, supra, the defendant local has a virtual monopoly of the moving picture operators’ positions in Essex county — the testimony in this cause was to the effect that not more than four or five out of all of such positions in Essex county are not controlled by this local. The complainant has no aptitude for any trade except that of an operator of moving picture machines, which he has followed for upwards of twenty years. To deprive him of his membership in this union would mean that he could not work at his chosen trade or profession in Essex county and because of the control of like positions in other North Jersey counties by affiliated locals, the chances of employment would be slim indeed. This field of employment is under the complete and absolute domination of the defendant union and affiliated locals. Lo Bianco v. Cushing, supra. The evils resulting from such dominance are discussed in my opinion in the Collins and Maglio Cases, supra, and need not be repeated here; but they are sufficient to cause public concern. The members of this union are not slaves to capital, their employers, but they are virtually slaves to the business agent and the officers of the union by whom they are dominated in a wholly arbitrary and autocratic manner. As stated in my opinion in the previous litigation, “the condition resulting from this system is but modified slavery.” In the instant case there is credible testimony to the effect that complainant’s expulsion was the penalty for his joining as complainant in the previous litigation. The action of the executive board in expelling him was unreasonable, arbitrary and unjustifiable and I will advise a decree directing his reinstatement upon the payment of dues delinquent on December 21st, 1936.


text:
    JOSEPH DOMBROSKI, PLAINTIFF, v. METROPOLITAN LIFE INSURANCE COMPANY AND VINCENT B. SMITH, DEFENDANTS.
    Decided October 27, 1938.
    For the rule, Clifford I. Voorhees.

      Conira, Quinn, Parsons & Doremus (John J. Quinn).

   Palmer, C. C. J.

This is defendants’ rule to show cause why a new trial should not be granted, allowed by the late Judge Lawrence, with the argument on the return thereof not completed before his death. Counsel for all parties have agreed by stipulation that the rule should be argued and determined by me. Accordingly it has been argued and briefs submitted.

The issue tried was that of a suit for malicious prosecution. The verdict was in favor of the plaintiff in the sum of $25,000. The reasons assigned were that the verdict was excessive and based upon passion, sympathy, bias and prejudice.

The plaintiff;, not a citizen of this country, was employed by the defendant insurance company in 1923 as a collector and solicitor, he speaking several languages and doing his work largely among the members of the foreign population of Freehold and vicinity. During the week of March 26th, 1934, a checking of his books and accounts by inspectors from the home office of the corporate defendant showed a considerable cash shortage, and plaintiff: was suspended. Some months thereafter it was brought to the attention of the corporate defendant that a number of its checks issued to policyholders at Freehold and in that vicinity for various reasons, had been forged as to the payees’ names. An investigation disclosed that plaintiff had been present and identified as being the proper payee, some of the persons who had cashed these checks. When confronted with this information he denied having forged any of the signatures, but did agree to make good the face of the checks so forged. This was accomplished by charging the amount of these checks against money deposited by plaintiff with the corporate defendant.

The whole matter was submitted to counsel for the corporate defendant and upon his advice the defendant Smith, an employe of the insurance company, made the complaints charging forgery and caused warrants to be issued in two cases against plaintiff. He was arrested, gave bail, was indicted and upon the trial of one case he was acquitted. The other indictment remains undisposed of. After his acquittal this suit was brought.

Plaintiff testified that his earnings were from $3,000 to $4,000 per year and in one or two years reached nearly $5,000. That he had done practically no work since his arrest and that the existence of the charges of forgery had prevented his securing work in the same line with any other insurance company. That he had made application to several of them and secured jobs, but when the investigation by his new employer disclosed the existence of the indictment he was discharged. Only one effort was "made to corroborate this testimony by any representatives of other insurance companies, and that witness testified that with a full knowledge of the indictment and acquittal of plaintiff he hired him but let him go because of the pendency of this suit for damages. That testimony hardly supports the theory of the plaintiff that his reputation as a collector for industrial insurance companies had been damaged.

He also testified that he lost his home because of inability to pay interest charges on a building and loan mortgage. The plaintiff’s daughter said that one of her schoolmates stated to her it would now, after the arrest of her father, be very hard for him to secure employment. That was all the testimony concerning any monetary losses sustained by the plaintiff.

I have road the entire testimony with care. I do not think that it justified the conclusion that the prosecution of the plaintiff was malicious. While defendant Smith on the stand stated that he did not believe the plaintiff had forged the signatures in question, yet at the time that the defendant Smith made the complaint charging forgery he had before him evidence of at least irregularities in the collection account of plaintiff, which the plaintiff agreed to repay, together with evidence of the presence of plaintiff at times when some of the checks were cashed, and that plaintiff introduced persons as the payees of said checks as being the proper payees thereof.

The charge of forgery necessarily included that of aiding and abetting a forgery. Certainly the defendant Smith was justified under the facts before him at the time of the making of the complaints that the plaintiff was guilty of aiding and abetting a forgery. The complaint then against the plaintiff could not have been maliciously made.

The verdict was far in excess of the damages sustained. While punitive as well as compensatory damages were asked for and unquestionably allowed by the verdict, I think the amount awarded must have been by reason of some passion or prejudice on the part of the jury. I am unable to find from the testimony facts which would justify a verdict of $25,000 in this case. Where a verdict is so excessive it can only be accounted for as the result of some passion or prejudice on the part of the jury, and the court is bound to set aside such a verdict.

The rule to show cause will be made absolute.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ISRAEL FEINSOD, PETITIONER, v. L. & F. CONSTRUCTION COMPANY, A NEW JERSEY CORPORATION, RESPONDENT.
    Decided May 31, 1938.
    For the petitioner, Louis L. Feinseth and Julius Stein.

    For the respondent, George F. Meredith.

   FACTUAL DETERMINATION

H* $ $ $ & $

I find and determine, from the facts as stipulated and admitted and as disclosed by the testimony, as follows:

1. Petitioner was on January 13th, 1936, regularly employed by the respondent, and while so employed, petitioner did on said date sustain severe injuries as a result of an accident arising out of and in the course of his employment. On said date and while in the course of his duties as an employe of respondent, petitioner was riding in an elevator on premises known as 106 Market street, Newark, New Jersey, which elevator dropped four stories. As a result thereof, petitioner sustained severe and permanent injuries which are substantially as follows: fracture of the twelfth dorsal vertebra and right and left oscalsis, osteomyelitis of right osealsis, injuries to the skull, pelvis, compressed fracture of the second lumbar vertebra, severe cerebral shock, lacerations of the scalp, and other injuries to back, head and body.

2. Eespondent had knowledge of said accident and due notice was given in accordance with the provisions of the Workmen’s Compensation act relative thereto.

3. The compensation rate of the petitioner is $20 per week.

4. In addition to his cause of action under the Workmen’s Compensation act herein, petitioner was vested with a common law right of action against certain third parties, whose negligence was the proximate cause of the accident aforementioned. Petitioner retained Louis L. Feinseth, a member of the bar of New Jersey, to investigate, institute and prosecute a common law action against the said third parties. For the services to be rendered under said retainer, petitioner agreed to pay said attorney a sum equal to one-third of the amount of settlement paid by said third parties or a sum equal to one-third of the amount of any recovery against the third parties plus $200 to cover costs and expenses of the investigation and prosecution of said common law action.

5. Said fees and expenses agreed to be paid by petitioner to said attorney are reasonable fees and charges and are not in excess of the statute hereinafter referred to.

6. In March, 1936, said Louis L. Feinseth, as attorney of record, commenced an action in the Essex County Circuit Court of the State of New Jersey on behalf of said petitioner against said third parties.

7. On or about May 27th, 1937, the third party tort feasors settled said common law action for $12,000. By reason of said settlement petitioner became obligated to pay said Lonis L. Feinseth, attorney, the sum of $4,200, being $4,000 for his fee and $200 for his expenses, in accordance with the agreement aforementioned.

8. Thereupon, the said third parties and their insurance carriers delivered to petitioner a series of cheeks totalling $12,000, in exchange for releases executed by petitioner. One of these checks was in the sum of $1,370 and was executed by Maryland Casualty Company, the insurance carrier of one of the third party tort feasors, to the order of petitioner herein; Louis L. Feinseth, the attorney aforementioned, and the New Jersey Manufacturers Casualty Insurance Company, the insurance carrier of respondent. This check was so executed for the reasons hereinafter shown. Petitioner received the balance of $10,630. Out of this sum of $10,630, petitioner paid to Louis L. Feinseth, attorney, the sum $3,500 being approximately one-third of the said sum of $10,630. There remained therefore, a balance still due to said attorney under the retainer aforementioned, of $500 for his fees and $200 for his expenses, which the petitioner is under a legal duty to pay. In addition thereto, petitioner also paid out of said sum of $10,630 substantially all of the medical, hospital, nursing and other expenses hereinafter more particularly referred to and all made necessary by reason of the injuries suffered by petitioner.

9. From the date of the accident and for a period of sixty-eight weeks thereafter and until approximately the time of the settlement with the third parties, the New Jersey Manufacturers Casualty Insurance Company paid to petitioner on account of his temporary disability, the sum of $20 for each week or a total of $1,360. In addition thereto, said New Jersey Manufacturers Casualty Insurance Company paid a $10 hospital bill. These payments so made therefor amounted to $1,370. Said New Jersey Manufacturers Casualty Insurance Company served notice of the making of said payments upon tho third party tori feasors and Maryland Casualty Company, tho insurance carriers of one of the third parties, claiming reimbursement therefor. Apparently, the said Maryland Casualty Company made and delivered a check for $1,370, payable in the manner aforementioned in order not to become involved in a dispute between the petitioner, petitioner’s attorney and the respondent herein, or its insurance carriers, with reference to the rights in said check and the sum of $1,370 represented thereby.

10. Petitioner suffered temporary disability for a period of ninety-three weeks following his accident, which covers the period from January 13th, 1936, to October 25th, 1937. Petitioner is therefore entitled to be paid by respondent the sum of $1,860 for temporary disability at the rate of $20 a week.

11. Petitioner incurred medical expenses, hospital charges, nursing charges and other necessary charges, all totaling $2,919.72. I find these charges to be necessary and reasonable for the services rendered to petitioner. The said charges were properly chargeable to respondent and payable by said respondent.

H? $£ H« H« H* Hs H*

12. Of said sum of $2,919 incurred for expenses, the petitioner did actually pay, out of the moneys received from the third parties, $2,719.72, being the total of all of the bills aforementioned, with the exception of the charges of $200 due to Dr. J. Irving Port, which the petitioner is still obligated to pay.

13. There is a dispute between the parties as to the extent of the permanent disability suffered by the petitioner. Petitioner produced as his expert witnesses, Dr. J. Irvig Port, Dr. J. Wallace Hurff and Dr. Leopold Szerlip. The petitioner himself testified as to his physical and mental condition. Bespondent produced Dr. Boy Griffith, Dr. Jack Blumberg and Dr. Buoff. The estimate of the total permanent disability of the petitioner as testified to by his medical experts, range as high as one hundred per cent, of total permanency, and there is evidence that the petitioner is unfit to engage in any physical activities except to attend to his daily personal and bodily needs. The respondent has admitted that the petitioner is suffering from a total permanent disability of seventy-five per cent. After thoroughly considering all the testimony submitted, I find and determine that the petitioner suffers from a permanent disability equivalent to eighty per cent, of total and permanent disability. In arriving upon this conclusion, I have given considerable credence to the respondent’s contention that the petitioner’s functional disability is not completely impaired in that to some extent he still possesses some ability to perform a few normal functions, having in mind the test to be applied is his physical loss and not industrial incapacity. Sulkowski v. Mutual Chemical Company of America, 178 Atl. Rep. 71; Burbage v. Lee, 87 N. J. L. 36; 93 Atl. Rep. 859; Hercules Powder Co. v. Morris County Court of Common Pleas, 93 N. J. L. 93; 107 Atl. Rep. 433. .

LEGAL DETERMINATION

1. I have considered the questions with reference to the extent respondent is entitled to be released from its liability aforementioned by reason of moneys paid to petitioner in settlement of the third party action. I have also considered the question with reference to the right of reimbursement for the payments heretofore made by New Jersey Manufacturers Casualty Insurance Company on behalf of respondent in the said sum of $1,370.

2. The petitioner contends that respondent is entitled to a credit only of $7,800 on account of its liability hereunder, claiming that the respondent is released of its liability hereunder only to the extent of petitioner’s net recovery from the third parties, being $12,000 less $4,200 for expenses of suit and attorney’s fees hereinabove referred to. Eespondent claims a credit of $12,000 being the entire sum paid by the third parties.

3. From my consideration of the matter, I hold and determine that the rights of the parties hereto are controlled by chapter 163 of the laws of 1936 (Rev. 8tai. 34:15-40), and not by chapter 379 of the laws of 1931. This is so even though chapter 163 of the laws of 1936 did not become law until June 33d, 1936, which is approximately five months after the date of the accident.

4. Chapter 163 of the laws of 1936 releases respondent or its insurance carrier from liability only to the extent of the recovery of the third parties after expenses of suit, not in excess of $300, and attorney’s fees, not in excess of thirty-three and one-third per cent., have been deducted therefrom. Chapter 163 of the laws of 1936 does not change the substantive rights of the parties hereto and impairs no obligation of contract. It does not violate any federal or state constitutional provisions. The contractural obligation of the employer has always been to pay full compensation to the employe in accordance with the act. Chapter 163 of the laws of 1936 does not enlarge this liability. It merely regulates to the end that the employe will receive full compensation for his injuries in accordance with the statute. If chapter 163 of Pamph. L. 1936 effects a change in the law, the change effected is merely a procedural or remedial change and, therefore, violates no constitutional rights of the respondent.

5. It is not material that the accident herein occurred prior to the passage of chapter 163 of the laws of 1936. It seems to me that either the date of the payment by the third parties, which is May 37th, 1937, or the date of the entry of the award in this court, is controlling. No rights accrued to respondent or its insurance carrier until actual payment by the third parties. In a very analogous situation in McLaughlin v. Hahne & Co., 13 N. J. Mis. R. 6; 169 Atl. Rep. 542; affirmed, 130 N. J. L. 32; 173 Atl. Rep. 566, it was held that the date of the occurrence of the accident is not determinative of the rights of the parties, but that the rights of the parties are determined as of the date of the award. This was again approved by the Court of Errors and Appeals in J. W. Ferguson Co. v. Seaman, 119 N. J. L. 575; 197 Atl. Rep. 245.

6. The right of reimbursement sought by the respondent in my opinion, is an action in rem. The right of the respondent is against the moneys collected by the petitioner in the third party action hereinbefore referred to. The res was not created until subsequent to the adoption of chapter 162, laws of 1936, in that the settlement was not made until sometime subsequent thereto. It is my opinion that the law in effect at the time of .the creation of the res is applicable.

7. For the reasons above stated, I find and determine that by reason of the third party settlement, the respondent is entitled to credit of $7,800 on account of its liability hereunder and to nothing more.

8. Petitioner concedes that respondent is entitled to an additional credit on account of its total liability hereunder to the extent of 1,370 heretofore paid out by respondent insurance carrier, but contends further that the respondent has no right of reimbursement. Bespondent claims that it is entitled to reimbursement to the extent of $1,370. I cannot agree with this contention of respondent.

9. In the instant case, the recovery herein, under the Workmen’s Compensation act, exceeds the amount recovered from the third parties, less costs and attorney’s fees. Under such circumstances, the rights of the parties are governed by section 23 (f)-3, as amended by chapter 162 of the laws of 1936. Rev. Stat. 34:15-40 (e). This section holds that the employer is liable only for the difference between the amount of the employer’s or insurance carriers’ liability under the statute and the sum recovered by the employe from the third parties less attorney’s fees and costs. This section further provides that the employer or his insurance carrier “shall be entitled to be reimbursed as hereinafter provided for so much of the medical expenses incurred and compensation payments theretofore paid to the injured employe or his dependents as exceeds the amount of such difference.” Clearly in the instant case the “difference” referred to in this section exceeds by far the sum of $1,370 for which reimbursement is claimed. Under this section there is no right of reimbursement unless the payments made, for which reimbursement is claimed, exceed the amount of the difference. I hold, therefore, that there is no right of reimbursement and that the respondent is merely entitled to a credit for $1,370 on account of its total liability under this act. I hold further, that respondent has no claim on the sum of $1,370 which has been withheld from the third party settlement.

10.1 hold that payments by respondent or its insurance carrier on account of disability shall be deferred until there shall have been exhausted by the application of $20 per week from the date of the accident, the net proceeds which have already been received by petitioner. After deducting from the said sum of $12,000 paid by the third parties the legal fees and expenses in the sum of $4,200, and medical and other charges actually paid and to be paid by petitioner, in the sum of $2,919.72, petitioner has actually left only $5,080.28 which should be applied toward the disability payments under the Workmen’s Compensation act; that in addition thereto, petitioner has received from respondent, or its insurance carriers, the sum of $1,360 towards his temporary disability payments. This means that petitioner has already received the sum of $6,440.28, which represents disability payments for a period three hundred and twenty-two weeks from January 13th, 1936. Payments by respondent for disability and on account of its liability hereunder shall be postponed until the expiration of three hundred and twenty-two weeks from January 13th, 1936.

OKDEK AND ALLOWANCE OE COMPENSATION

It is, thereupon, on this 31st day of May, 1938, ordered, that judgment final be entered in favor of the petitioner and against the respondent and its insurance carrier, New Jersey Manufacturers Casualty Insurance Company as follows:

1. Por temporary disability for ninety-three weeks, from January 13th, 1936, at the compensation rate of $20 per week, $1,860. 2. For eighty per cent, of total and permanent disability or disability for four hundred weeks, at the compensation rate of $20 per week, $8,000. 3. For medical expenses, hospital expenses and other expenses hereinabove referred to, $2,919.72. Total, $12,779.72.

It is further ordered that on account of said judgment aforementioned in the total of $12,779.72, respondent is entitled to a credit of $7,800, being the net recovery from the third parties after deducting attorney’s fees and costs, and is entitled to an additional credit of $1,360 heretofore paid by respondent, and $10 paid by respondent for a hospital bill, leaving therefore $3,609.76 remaining to be paid hereunder by respondent.

It is further ordered, that at the expiration of three hundred and twenty-two weeks from January 13th, 1936, the respondent pay to the petitioner the balance of $3,609.76 in weekly payments of $20 each until paid in full.

* * * * * * *

Harry S. Medinets, Deputy Commissioner of Compensation.


author: Melko, D. C. J.

text:
    Perth Amboy District Court.
    THE MORRIS PLAN INDUSTRIAL BANK OF NEW YORK, A BANKING CORPORATION OF THE STATE OF NEW YORK, PLAINTIFF, v. WILLIAM P. MITCHELL, DEFENDANT.
    Decided November 12, 1938.
    For the plaintiff, Louis Ogust.

    For the defendant, Samuel G. Cohen.

   Melko, D. C. J.

This action on a promissory note was commenced by service of summons and state of demand upon the defendant, on which state of demand there was endorsed a notice requiring specification of defenses to be filed. Accordingly on October 18th, 1938, specification of defenses was filed, service of a copy thereof having been acknowledged prior thereto by the attorney for the plaintiff. The ninth paragraph of the said specification set forth as one of the defenses: “Defendant denies that the signature on the said note set forth in the first paragraph of the state of demand is his signature.”

The trial of the case was held on October 21st, 1938, and the assistant treasurer of the plaintiff corporation testified that he was familiar with the note and transaction on which this suit was brought; that the note was owned by the plaintiff and that there was due from the defendant the sum of $278.60. The note was admitted in evidence over the objections of the defendant’s attorney on the ground that the signature had not been proved, and that said proof was required because of the aforesaid allegations contained in the specification of defenses.

Attorney for the plaintiff then rested his case contending that such proof was unnecessary as defendant had not filed affidavit as required by Rev. 8tat. 2:98-3, which was adopted in 1914 and provides:

“In every suit or judicial proceeding brought upon a negotiable instrument, the authenticity of any signature or endorsement thereon shall be taken to be admitted unless the same is put in issue by the pleadings, or, in courts wherein the defendant is not required to file any pleadings, unless the party to the suit denying the authenticity of such signature or endorsement shall file with the court an affidavit stating that to the best of his knowledge and belief, such signature or endorsement is not the true signature or endorsement of the person purporting to have made the same.”

Defendant’s attorney thereupon rested and moved for a directed verdict on the ground that the plaintiff failed to prove the signature of the defendant as was required.'

The statute providing for the demanding and filing of specification of defenses in the District Court was adopted by the legislature in 1910 set forth in Rev. Stat. 2:32-50 and Rev. Stat. 2:32-51 is as follows:

“Plaintiff, in an action on contract for the recovery of more than $300 may endorse upon his state of demand, a notice to defendant demanding of him that he file a written specification of defenses he intends to make in the action at or before the time specified for appearance in the process or summons, or on the return of the warrant, or at the time of appearance specified in the recognizance.
“Defendant, when demand is made as provided by section 2:32-50 of this title, shall, within the time allowed, specify his defenses to the action in writing, file the same and serve a copy thereof upon plaintiff or his attorney, and at the trial of the cause he shall be confined to the defenses so specified. If defendant fails to comply with plaintiff’s demand and serve the copy he shall be barred from making any defense to the action. The court, however, may, before or at the trial of the cause and upon terms, permit defendant to file and serve or amend such specification.”

The specification filed in this matter contained ten separate defenses among which was the one by which the defendant denied the signature on the note and by reason thereof, the defendant would have been permitted to go forward with his proof as to this defense or any other defense alleged therein, after the plaintiff had proved a prima facie case. Defendant’s failure to file the affidavit as required by Rev. Stat. 2:98-3 admits the authenticity of the signature on the note and plaintiff’s proof of ownership of the note and amount due thereon constituted a prima facie case, and the burden therefore was on the defendant to proceed with his defense which he apparently chose not to do.

The effect of the act is to enable the plaintiff, in the absence of the prescribed affidavit to proceed without personal proof of the signature on the note. The language of the act is that in the absence of the affidavit, “the authenticity of such signature or endorsement shall be taken to be admitted.” Rossi v. Benedict, 98 N. J. L. 81; 118 Atl Rep. 713.

Defendant urges that the motion for directed verdict against the plaintiff be granted because the specification of defenses filed herein answers the purpose of the prescribed affidavit and that therefore the plaintiff had not proved a pt'ima facie case. This contention is unavailing for while the defendant is entitled to know before trial what the claim against him is, so the plaintiff on the other hand, to prevent surprise to him under the otherwise informal procedure, is entitled to know, if he asks, what defense will be interposed, but the statutory specification is not to be construed as an answer. Beser v. Krasny, 114 N. J. L. 146; 176 Atl. Rep. 146.

The statute providing for specification of defenses is similar to section 116 of the old Practice act and of which Mr. Justice Dixon, in Turner v. Wells, 64 N. J. L. 269; 45 Atl. Rep. 641, said:

“The statute was not designed to detract at all from the proof which the plaintiff must offer to establish his claim prima facie. Only after that is established can the statute be invoked to ward off defenses which do not go in denial in the making of the contract.”

The case of Mechanics Trust Co. v. Halpern, 184 Atl. Rep. 744; 116 N. J. L. 374, cited by the defendant has no direct bearing because in that case the verdict was directed for the plaintiff because of the failure to file the prescribed affidavit and because of the failure to set up properly defenses in the specification of defenses. The largest inference that can be gathered from that case is that had the appropriate specification of defenses been filed, the defendant would have been permitted to go forward with the defense.

Defendant further contends that because of the demand for specification of defenses and filing thereof, he was required to file a pleading, and therefore not in the purview of Rev. Stat. 2:98-3. Strictly speaking, this is not so, for had he failed to comply with the demand, he was still an active litigant and could have resisted plaintiff’s claim to some degree. The legal effect of Rev. Stat. 2:32-50 and 51 is not to deprive a defendant, even though he fails to specify his defenses, of the right to challenge by cross-examination or otherwise, the character or sufficiency of plaintiff’s proof, to make out his right to recover. Tricoli v. Tramonde, 95 N. J. L. 363; 113 Atl. Rep. 230.

It appears that the plaintiff proved a prima facie case to which no defense was offered and he is therefore entitled to judgment of $278.60 against William P. Mitchell who is the only defendant upon whom service of process was made.


author: John C. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SIGVALD HAALAND, PETITIONER, v. LARSEN BAKING COMPANY, RESPONDENT.
    Decided November 18th, 1938.
    For the petitioner, Jack Prizzia.

    For the respondent, Clarence B. Tippett.

   ifc íj: sH & ❖

The claim of the petitioner herein, and amended during trial, was that while employed as a salesman for the respondent, going from house to house on his route about every five or ten minutes during the day he was obliged to yell up dumbwaiters and up windows, and as a result of this he lost the use of his voice. He stated this condition materialized in 1937 and that he lost his voice in July, 1937, and stopped work about October 15th, 1937. A consideration of his testimony during direct and upon cross-examination shows that he had worked several years previous to July, 1937, for this company and doing about the same type of work; that he had noticed a hoarseness in his throat or voice coming on some considerable time before he lost the use of his voice in July, 1937. He continued his work after July, 1937, until about October 15th, 1937, and in the meantime he had recurrent recovery as well as loss of voice.

He visited certain doctors who appeared to have attributed his loss of voice to the nature of his work.

I have also considered the testimony of the medical witness produced by the petitioner and it was his opinion, following his examination November 9th, 1938, and his consideration of a hypothetical question covering the history in the case, that his condition could be caused by constant use of his voice. The fact that the man smoked at least one pack of cigarettes each day could not be entirely eliminated as a possible cause for partial loss of use of voice.

It is my opinion, after considering all of the testimony, that the condition suffered by this petitioner is occupational in nature, not accidental within the meaning of the statute, and not compensable. The petition is dismissed, and judgment found for the respondent.

# * * * * t\i *

John C. Wegner, Deputy Commissioner.


author: Pope, D. C. J.

text:
    First Judicial District Court of Somerset County.
    KYLE A. LUNGER, PLAINTIFF, v. RICHARD M. PAGE, EXECUTOR OF THE ESTATE OF WILLIAM H. PAGE, DECEASED, DEFENDANT.
    Decided November 23, 1938.
    For the plaintiff, Charles Howard.

    For the defendant, Bowers & Rinehart.

   Pope, D. C. J.

The executor of the estate of William ii. Page, deceased, was permitted to enter a special appearance for the sole purpose of making this motion to quash a writ of attachment and all proceedings thereunder. The undisputed facts submitted to the court are that in October, 1935, William H. Page, a resident of Yew York City, departed this life leaving a last will and testament, in and by which he nominated lviehard M. Page as executor, who qualified before the surrogate of Yew York county on October 17th, 1935, and that an exemplified copy of the will and letters are on file in Somerset county surrogate’s office.

William H. Page was a former resident of Somerset county and owned considerable property here at the time of his death but which is heavily encumbered.

At the time of his decease, William H. Page was indebted to Kyle A. Lunger, in the sum of $277.09, which debt is not disputed, but in fact has been recognized by the executor who is willing to pay it as soon as assets are available. The financial condition of the estate is somewhat involved and although some time has elapsed, the executor has not yet been able to determine if the estate is insolvent and no proceedings have been taken in that respect. On August 22d, this year, the executor held a public sale of personal property at the Far Hills estate for the purpose of raising moneys to be used to pay carrying charges on the real estate which comprise the main assets of the estate. It is stated that the estate is being liquidated as rapidly as circumstances will permit.

Under the writ the proceeds of this sale were attached which levy gives rise to this motion.

The reasons assigned is that the court is without jurisdiction and that there is no authority in the District Court act for process by way of a writ of attachment against a nonresident executor.

I am unable to find any provision in the District Court act or in any supplement or amendment thereto which authorizes the issuance of a writ of attachment against a non-resident executor nor has counsel been able to direct attention to any such legislative provision.

That the provisions of the District Court act relating to attachments provides a distinct mode of procedure and specifically prescribes and limits the jurisdiction of the court is beyond question. The cases of Muller v. Leeds, 52 N. J. L. 366; 19 Atl. Rep. 261, and Connelly v. Lerche, 56 N. J. L. 95; 28 Atl. Rep. 430, hold that an attachment cannot be issued against executors or administrators except in the case of joint debtors.

"The remedy of creditor by attachment is obviously inconsistent with the usual and orderly administration of the assets of an estate, and is not, in the absence of express statutory authorization available against an executor or administrator with respect to a demand against the estate of the decedent.” 6 C. J. 41.

This rule is recognized in the Lerche ease, supra (at p. 99). There the learned justice states:

"This writ should be quashed as issued against an executor. It has been held that an attachment under our statute is a proceeding in rem and obviously inconsistent with the law of administration of estates as established in this state, and that therefore a court will quash a writ of attachment against an executor in such a case as here presented.”

The writ of attachment will be quashed and all proceedings thereunder vacated.

Upon the argument of this motion counsel for Kyle A. Lunger submitted an application to transfer the cause to the Court of Common Pleas of the county of Somerset under chapter 163 of the laws of 1936 (page 386), (R. S. 2:26-60 and 26-61), which provides:

“bfo cause or matter which is now pending or shall hereafter be pending, in any court mentioned in the above title, which has not jurisdiction of the subject-matter, either in the original suit or on appeal, shall be dismissed for that cause only, but the cause or matter shall be transferred with the record thereof and all papers filed in the cause for hearing and determination to the proper court, which shall thereupon proceed therein, as if the cause or matter has been originally commenced in that court. The record shall, when necessary, include a transcript of all entries and proceedings in the cause.”

The case of Commonwealth Roofing Co. v. Michael Riccio, 81 N. J. Eq. 315; 88 Atl. Rep. 385, and Vaux v. Vaux, 115 N. J. Eq. 586; 172 Atl. Rep. 68, are cited in support this motion to transfer. Obviously the first case cited lends no support whatever to this motion, that case merely holds that where jurisdiction of the subject-matter is not exclusive, it will not be exercised if the recovery at law is full, plain and adequate, unless there are some features of the case which make it more appropriate for a court of equity than for a court of law.

The Yaux case was a suit commenced by a writ of attachment out of the Circuit Court at the suit of a wife against her husband which was transferred under the statute by the Circuit Court to the Court of Chancery because it was without jurisdiction. Obviously, the Circuit Court was without jurisdiction because it was a suit between husband and wife which the Circuit Court could not entertain. It will be noted that the vice-chancellor holds in that case that the Circuit Court being a court of general jurisdiction at law (at p. 588), “the issuance of the attachment was not a usurpation of power by the Circuit Court and that the writ was not void, and this being so, the writ had the effect given it by the statute and was a lien on the defendant's land. Indeed, if the writ was void, no action was commenced thereby and there was no cause pending in the Circuit Court which could be transferred to Chancery.'' Citing Hermann v. Mexican Petroleum Corp., 85 N. J. Eq. 367; 95 Atl. Rep. 492.

District Courts are not courts of general jurisdiction at law. Their jurisdiction is limited and prescribed by statute. As I have already shown above, this court had no power to issue the writ of attachment. The writ being void from the beginning this court acquired no jurisdiction whatever either over the parties or the res and the writ and all proceedings thereunder were coram non judice. Under the Transfer of Causes act it is only when there is an action “pending” and the court “is without jurisdiction of the subject-matter,” that the District Court may transfer the cause to an appropriate tribunal.

Since the writ of attachment was void and without any legal force whatever, it failed entirely to introduce into this court a cause of action and for that reason there is no cause “pending.” It is well settled that jurisdiction of a court over parties or a res can be acquired only by the issuance and service of a legal and valid writ or in some intsances, by consent of the parties. It is quite clear that there is nothing for me to transfer to the Court of Common Pleas.

Under the statute referred to, the power to transfer is also limited to cases in which this court is without jurisdiction “of the subject-matter.” The subject-matter in this ease is a debt of $277.09 for work done and services rendered.

It is, therefore, apparent that if the parties were properly before the court, that this court would have full and complete jurisdiction over “the subject-matter.”

The application to transfer the cause will have to be denied for the reasons stated.

An order quashing the writ of attachment and all proceedings thereunder may be presented. The order should also embody the refusal of the court to transfer the cause to the Common Pleas as counsel has expressed a desire to appeal from the conclusions herein expressed.


author: Daniel A. Spair, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    AILEEN GROGAN, PETITIONER, v. DAVID GRANGER, Sr., MINNIE GRANGER AND AETNA CASUALTY AND SURETY COMPANY, RESPONDENTS.
    Decided November 22, 1938.
    For the petitioner, Harry Edelson.

    For the respondent, Cox & Walburg (by Arthur F. Mead).

   It appears from the testimony that the petitioner sustained an accident on June 24th, 1935, arising out of and in the course of her employment with the respondent David Granger, Sr. The petitioner was working in the basement of premises No. 93 Jerome avenue, Deal, New Jersey, she was overcome by gas, she came up out of the basement, fell to the ground, and was unconscious. The petitioner was given resuscitation by the first aid squad of the Deal fire department, and Dr. Harold A. Kazmann rendered medical treatment. The doctor sets forth in his statement dated May 5th, 1937, that the petitioner complained of generalized aches and pains in her chest and back and also headaches. The doctor felt that the headaches were due to sinus blockage. It was his impression that the petitioner probably had some previous sinus infection and possibly a beginning bronchiectasis before the accident of June 24th, 1935, and that the condition may have heen aggravated by the chilling received by the petitioner when she came np from the basement. The petitioner ceased work for a week, and then continued to be employed by the respondent David Granger, Sr., until September 10th, 1935. Dr. Kazmann rendered medical treatment for several weeks. The testimony also discloses that the petitioner was treated on three occasions by Dr. John B. Maher, and that when she left the employ of the respondent David Granger, Sr., on September 10th, 1935, she went to New York City, working for several employers, the last employer being Dr. Theodore L. Cohn. She was employed by Dr. Cohn from March, 1936, and was still employed by him at the time of the hearing held in this matter. It also appears that the petitioner was rendered other medical treatment by Dr. Sauer, and also by Dr. Cohn. Dr. Philips made X-rays of the petitioner. It appears from Dr. Cohn’s testimony that the doctor made a diagnosis of bronchiectasis, myocarditis, chronic right sacro-iliac sprain, and other symptoms of persistent sequelae of illuminating gas poisoning. Dr. Cohn rendered medical treatment from May 25th, 1936, to May 13th, 1938, and in addition made examinations on June 1st, 1938, and June 8th, 1938. It was his conclusion that petitioner had a permanent disability of- twenty per cent, to twenty-five per cent, of total and that this condition resulted from the accident as described by the petitioner.

Dr. George E. Meehan testified that he examined the petitioner on July 20th, 1938. It was Dr. Meehan’s conclusion that the petitioner had a chronic right sacro-iliac sprain and a neurosis, due to the accident. He estimated a permanent disability of approximately twenty per cent, of total.

Dr. Ambrose B. Dowd testified that he examined the petitioner on December 21st, 1935, at which time he found no disability or pathology resulting from carbon monoxide poisoning. He stated that at that time he found no permanent disability.

Dr. Otto R. Holters testified that he examined the petitioner on July 24th, 1935, at which time the petitioner complained of a persistent cough and injury to the lower back. He came to the conclusion, that the petitioner had a subacute tonsillitis but that this condition was not caused by carbon monoxide poisoning. It was his conclusion that she had no permanent disability that could be attrtibuted to the accident.

It is my conclusion that the petitioner is entitled to permanent disability because of an injury to her back resulting from the fall sustained by her after she came up from the basement of the laundry, and further because of the fact that she has a neurosis. It is my further conclusion that such permanent disability amounts to ten per cent, of total. She is therefore entitled to compensation for a period of fifty weeks.

Petitioner’s wages were $40 per month, plus room and board. The value of the room and board not having been fixed at the time of the hiring, same is fixed at the rate of $5 per week, in accordance with the statute. Petitioner’s compensation rate is therefore $10 per week.

The record does not disclose that petitioner is entitled to any further allowance, on account of temporary disability.

The testimony discloses that Dr. Sauer rendered a bill in the amount of $12.50 for a belt, paid by the petitioner, and $5 for medical treatment, also paid by the petitioner; that Dr. Philips made a charge of $25 for X-rays, of which the petitioner paid $5; and that Dr. Theodore L. Cohn rendered a bill in the amount of $745. It does not appear that any of these bills were authorized by the respondent. It is therefore my conclusion that these bills cannot be assessed against the respondent.

Dr. Cohn is not entitled to an allowance for appearance and testimony in court, in view of the provisions of the statute, chapter 149, Pamph. L. 1918, ¶ 17 (R. S. 1937, 34:15-64), providing that fees may be allowed for medical witnesses residing in the State of New Jersey. It does not appear that Dr. Cohn is a resident of New Jersey, and for this reason, allowance for his appearance and testimony cannot be made. $ $ $ $ * * %

The testimony does not disclose that the respondent Minnie Granger employed the petitioner. The petition for compensation is therefore dismissed as against Minnie Granger.

The Aetna Casualty and Surety Company is joined as a respondent, in view of the fact that the said company is the insurance carrier for the respondent.

It is, therefore, on this 22d day of November, 1938, ordered, that judgment be entered in favor of the petitioner and against the respondents David Granger, Sr., and Aetna Casualty and Surety Company.

❖ ❖❖❖❖❖❖

It is further ordered that the petition be dismissed as against Minnie Granger.

Daniel A. Spair, Deputy Commissioner.


author: Leyden, S. C. C.

text:
    R. & A. REALTY CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, AND JOHN ROTELLA, TRADING AS BLOOMFIELD SCRAP IRON AND METAL COMPANY, PLAINTIFFS, v. THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION OF THE STATE OF PENNSYLVANIA, WILSON & ENGLISH CONSTRUCTION COMPANY, A CORPORATION OF THE STATE OF NEW YORK, THE BOARD OF PUBLIC UTILITY COMMISSIONERS OF THE STATE OF NEW JERSEY, J. P. BURNS, HARRY BACHARACH, THOMAS L. HANSON, AND FRANK J. REARDON, DEFENDANTS.
    Decided December 2, 1938.

      For the Pennsylvania Railroad Company, John A. Hartpence and Thorn Lord.

    For Wilson & English Construction Company, William G. Hart.

    For the Board of Public Utility Commissioners and Harry Bacharach, Thomas L. Hanson and Frank J. Reardon, individually, John A. Bernhard.

    For J. P. Burns, Winne & Banta.

    For the plaintiffs, R. & A. Realty Corporation and John Rotella, Mario Turtur.

   Leyden, S. C. C.

Prior to the time hereinafter mentioned, Leesville avenue in the township of Woodbridge, Middlesex county, crossed the Pennsylvania Railroad at grade. A proceeding was instituted by the township of Woodbridge and after notice and hearing the Board of Public Utility Commissioners of the State of New Jersey determined that the crossing was dangerous to the public safety and public travel was impeded thereby. Accordingly the board made an order dated September 6th, 1934, directing the Pennsylvania Railroad to eliminate the crossing by means of an underpass entirely within the street lines. December 1st, 1934, was the date fixed for the commencement and September 1st, 1935, for the completion of the work, The railroad company vainly sought delay. Pennsylvania Railroad Co. v. Board of Public Utility Commissioners, 13 N. J. Mis. R. 768; 180 Atl. Rep. 688; affirmed, 116 N. J. L. 415; 184 Atl. Rep. 841. The power and authority of the Board of Public Utility Commissioners to make the determination and order is found in the Fielder Grade Crossing act. Pamph. L. 1913. ch. 57, p. 91; Cum. Supp. Comp. Stat. 1924, §§ 167-30 et seq.; R. S. 48:12-61 et seq.

Upon the making of the order the Pennsylvania Eailroad Company had no choice in the matter. It was compelled to proceed with the elimination. Erie Railroad Co. v. Board of Public Utility Commissioners, 89 N. J. L. 57; 98 Atl. Rep. 13; affirmed, 90 N. J. L. 672; 103 Atl. Rep. 1052; affirmed, 254 U. S. 394; 65 L. Ed. 322. It entered into a contract— the Board of Public Utility Commissioners approving — with the defendant Wilson & English Construction Company for the performance of the work of lowering the grade of Leesville avenue and the construction of the underpass. Wilson & English Construction Company in turn sublet part of the work to the defendant, J. P. Burns.

The plaintiff R. & A. Realty Corporation is the owner of real property abutting Leesville avenue and adjacent to the Pennsylvania Railroad right of way, and the plaintiff John Rotella, trading as Bloomfield Scrap Iron and Metal Co., is the tenant in possession of the land and the owner of the business located thereon.

The complaint consists of forty-nine pages and is divided into twenty counts, ten in behalf of the plaintiff R. & A. Realty Corporation and ten in behalf of John Rotella. By it they seek to recover damages allegedly sustained by them to their respective interests by reason of the construction by the defendant railroad within the roadway on Leesville avenue of the underpass and approaches thereto. It is alleged that the construction has caused the plaintiffs’ property and business to become permanently depreciated in value and has caused other damages as set forth in the complaint. The first ten counts correspond somewhat to. the second ten, for example, counts 1 and 11 seek recovery of damages from the defendant Pennsylvania Railroad Company upon what is alleged to be common law principles of liability. Counts 2 and 12 seek the recovery of damages against the Pennsylvania Railroad Company by reason of the violation of the plaintiffs’ constitutional rights. Count 3 and 13 seek the recovery of damages from the defendant Pennsylvania Railroad Company, upon the theory that such recovery is authorized by the Fielder act. Counts 4 and 14 seek the recovery of fifty per cent, of the damages from the defendant, Pennsylvania Railroad Company, upon the theory that such a recovery is authorized by the said statute. Counts 5 and 15 seek the recovery of damages from the defendant Board of Public Utility Commissioners upon the theory that the recovery is authorized by the said statute. Counts 6 and 16 seek the recovery of damages from the defendants, Harry Bacharach, Thomas L. Hanson and Prank J. Reardon, individually, on the ground that their action as members of the Board of Public Utility Commissioners was ultra vires and illegal. Counts 7 and 17 seek the recovery of damages against the Pennsylvania Railroad Company on the theory of a common law trespass. Counts 8 and 18 seek the recovery of damages against the defendant Wilson & English Construction Company upon the same theory, and likewise counts 9 and 19 seek the recovery of damages against the defendant J. P. Burns, and counts 10 and 20 seek damages against the defendant Wilson & English Construction Company upon alleged common law principles of liability.

The defendants move to strike the counts of the complaint relating to them respectively. The motion in behalf of the Pennsylvania Railroad Compan]’' is made upon the following grounds:

1. That the several respective counts of the complaint do not set forth or state a legal cause of action against the Pennsylvania Railroad Company.

2. That the complaint is sham.

3. Is frivolous.

4. Is vague and uncertain.

5. Is so framed as to embarrass a fair trial.

6. It appears from the complaint itself that the defendant was acting as an arm of the state and not liable to suit.

The defendant the Board of Public Utility Commissioners and the individual commissioners move to dismiss the complaint upon the following grounds:

1. That it does not set forth a legal cause of action against either the board or the individual members of the commission.

2. That the Board of Public Utility Commissioners is an agency of the state and its representative for the purpose and within the limitations expressed within the act of 1911 and the supplements and amendments thereto, and as such agency is not a proper defendant.

3. The state without its consent cannot be sued, and since there is no allegation of such consent, the suit cannot be maintained.

4. The public utility commissioners as individuals constituted the Board of Public Utility Commissioners on the date of the order directing the elimination and are therefore not personally liable in a civil action for damages arising out of their acts as such commissioners.

5. That the order of the board directing the elimination was an order issued in the performance of a duty of a public character.

The defendant Wilson & English Construction Company moves to dismiss upon the ground:

1. That it on the dates alleged acted in a contractual relationship with the Pennsylvania Kailroad Company in compliance with a mandatory order made by the Board of Public Utility Commissioners, an agency of the state, which order required the Pennsylvania Eailroad Company to eliminate the crossing, and that it was acting for an agency of the state under the authority of a lawful court order.

2. That it is an improper party and under no liability to the plaintiffs because the legislature provided an exclusive remedy for damages sustained by directing that such damages should be paid by the railroad company involved and the Board of Utility Commissioners.

3. That the eighth count of the complaint is duplicitous in that it alleges in one count two causes of action, i. e., trespass quare clausum fregit and trespass on the case.

4. That the eighteenth count fails to comply with the requirements of certainty and the defendant is not reasonably appraised of that which is complained of.

The defendant J. P. Burns moves to dismiss upon substantially the same grounds as those urged in behalf of the Wilson & English Construction Company.

In passing, it might not be amiss to observe that no part of the plaintiffs’ property has been actually taken and the change in grade of Leesville avenne is wholly within the highway lines; that the location and level of the railroad has not been changed; that nothing has been added to the railroad’s structure nor done for a railroad purpose. The highway has been changed. Its grade, wholly within its lines, has been depressed for a certain distance in order to carry it underneath the railroad tracks, leaving a portion of the plaintiff’s property on an elevation. All that the Pennsylvania Eailroad did was to enter into an agreement with an independent contractor, to wit, Wilson & English Construction Company in obedience to the state’s mandatory order for the performance of the work of changing the grade of the highway for the benefit of its users and for the safety of the public. There is no allegation of negligence in the performance of the work.

The gravamen of the complaint is that the construction of the underpass and the consequent depression of the grade of Leesville avenue left a portion of the plaintiffs’ property on an elevation and deprived it of the ingress and egress from Leesville avenue it formerly enjoyed; took away its valuable frontage and as a result has permanently rendered the property less valuable for the purposes for which it is best adapted.

It i.s appropriate to note at this point that as a result of a proceeding brought by the present plaintiffs in the Court of Chancery against the Pennsylvania Eailroad Company and the Board of Public Utility Commissioners, the defendants conveyed or caused to be conveyed to the plaintiff the E. & A. Eealty Corporation a triangular tract of land adjacent to the westerly side of its property to serve as a means of access, practically at grade, to and from Leesville avenue. The conveyance was made without cost to the plaintiff and it accepted it and is using the property so conveyed, without prejudice, however, to any action at law which it might desire to bring.

There is no allegation in the complaint that the grade of Leesville avenue was legally established before the work of elimination was undertaken.

It is settled that the owner of land abutting on a highway has no vested right to recover damages for a change of grade of the highway in the absence of a statute giving that right, and this is so even though the general effect of the change of grade is to impair or substantially destroy access to the landowner’s property. It is not a taking of property in the legal sense. It is damnum absque injuria. Clark v. Elizabeth, 61 N. J. L. 565; 40 Atl. Rep. 616; Willets Manufacturing Co. v. Freeholders, 62 N. J. L. 95; 40 Atl. Rep. 782; Sommer v. State Highway Commission, 106 N. J. L. 26; Burns Holding Corp. v. State Highway Commission, 8 N. J. Mis. R. 452; affirmed, 108 N. J. L. 401; Cooper v. State Highway Commission, 6 N. J. Mis. R. 723; 150 Atl. Rep. 768; Hulelt v. Sea Girt, 108 N. J. Eq. 309; 154 Atl. Rep. 741. But the plaintiffs insist section 2 of the Fielder act as amended, supra, gives them the right of action pleaded.

Section 1 thereof gave the board power to order any company operating a railroad in this state to eliminate grade crossings by either reconstructing the railroad over or under the highway or by vacating, relocating or changing the lines, width, direction or location of the highway, or the opening of a new highway. Sections 2, 3 and 4 of the original act related to the manner in which the expense of such changes was to be borne. Section 5 created a procedure by which the municipalities of the state, the railroads or the Board of Public Utility Commissioners might set in operation an application for the alteration of a grade crossing, and section 6 related to the powers previously granted to the board.

Section 2 provides as follows: The entire expense of such alterations, changes, relocation or opening, including damages to adjacent property, shall be paid by such railroad, unless a street railway uses such crossing, in which event the board may order not exceeding ten per centum of such expense directly chargeable to the crossing used by the street railway company, to be paid by the company operating such street railway, and the balance to be paid by the company operating such railroad.”

Section 2 was amended in 1930, Pamph. L. 1930, ch. 101, p. 348, to read: “The entire expense of such alterations, changes, relocation or opening, including damages to adjacent property and the cost of removing, relaying or relocating any municipal water or sewer pipes or other municipal pipes, conduits, or subways, shall be paid fifty per centum by such railroad company, or companies involved and fifty per centum by said board (Board of Public Utility Commissioners) out of funds to be provided for that purpose.”

Section 2 of the act was again amended in 1933 (Pamph. L. 1933, ch. 390, p. 1092; R. S. 48:12-62), so that in its present form as set forth in the Revised Statutes it provides: “The railroad company or companies involved, and the board out of funds to be provided for that purpose, shall each pay fifty per cent, of the entire expense of such alterations, changes, relocation or opening, including damages to adjacent property and the cost of removing, relaying or relocating any municipal pipes, conduits or subways; provided, that if funds are granted or allotted by the United States government or any of its agencies, the board may, with the consent and approval of the governor, allot and credit any or all of the funds so received toward the part of the expense to be borne by such railroad company or companies.”

Reliance is placed upon the phrase “including damages to adjacent property” in that section.

At the time of the passage of the Fielder act in 1913 there was a statute in force authorizing the recovery of damages arising from the alterations of the. grade of any street or highway. It provided: “An action doth and shall lie in behalf of any person or corporation owning any house or other building standing and erected upon any street or highway, the grade whereof shall be or shall have been altered by virtue of the ordinance, resolution, or other proceeding of the legislative authority of any city, borough, town corporate, village, or other municipality in this state, to recover from such city, borough, town corporate, village, or other municipality all damages which such owner or owners shall suffer by reason of altering any such grade; provided, that no such action shall be brought after the expiration of twelve months from the working of any such grade.” Pamph. L. 1858, p. 415; section 70 of the Road act; 4 Comp. Stat., p. 4461. Hence the phrase “including damages to adjacent property” was incorporated in section 2 of the Fielder act. However, this statute permitting the recovery of damages in such cases was repealed in 1918 (Pamph. L. 1918, p. 659), so that when section 2 of the Fielder act was amended in 1930 (chapter 101) and 1933 (chapter 390), no right of action existed either at the common law or by statute for damages arising out of the change of the grade of a street or highway; Sommer v. State Highway Commission, supra. The Fielder act, as amended, did not nor was it intended to create a cause of action in adjacent landowners for damages occasioned by the changed grade of a street or highway. Such an object was not expressed in its original title: “A supplement to an act entitled ‘An act concerning public utilities; to create a Board of Public Utility Commissioners and to prescribe its duties and powers;’ approved April 21st, 1911.” The intent was not to impose a liability to pay damages where none existed but merely to provide a method of ascertaining and paying damages for such taking of private property as under existing law entitled the owner to compensation. Willis v. Winona, 60 N. W. Rep. 814; 25 L. R. A. 142. There was no necessity ui)on the part of the legislature to create such a cause of action for the statute of 1858 as amended, supra, granting that right, was then in Ml force and effect. Such a right, in derogation of the common law, must be created by an express statute to that effect. It will not be inferred or implied by judicial construction. The sole purpose of section 2 was to apportion the cost of the grade crossing elimination among the various parties concerned therein.

What has been said with relation to the claim against the Pennsylvania Eailroad applies with equal force to that against the Board of Public Utility Commissioners. Consent or permission to sue the state will not be spelled out by mere inference or legal construction.

In the performance of its statutory 'powers and duties the Board of Public Utility Commissioners of the State of New Jersey is an alter ego of the state and as such cannot be sued as a separate entity or body. The state cannot be sued in its own courts without its consent, and if the legislature had intended that the state should be subject to suit it would have said so in plain and explicit language. Strobel Steel, &c., Co. v. State Highway Commission, 120 N. J. L. 298; 198 Atl. Rep. 774; DeSantis et al. v. Delaware, Lackawanna and Western Railroad Co. et al., 11 N. J. Mis. R. 22; 165 Atl. Rep. 119.

By their complaint the plaintiffs would place the burden of determining the constitutionality of an act of the legislature upon the individual members constituting the Board of Public Utility Commissioners at their peril. It is urged that the action of the board in making an application to the United States government for a grant to aid in the cost of the construction of the elimination was illegal and ultra vires, and that the 1933 amendment to section 2 of the Fielder act is unconstitutional, in violation of article 4, section 6, paragraphs 1, 2 and 3 of the New Jersey Constitution providing that all bills for raising revenue shall originate in the house of assembly; that no money shall be drawn from the treasury but for appropriations made by law, and the credit of the state shall not be directly or indirectly loaned in any case; and therefore the defendants Harry Bacharach, Thomas L. Hanson and Frank J. Reardon, individually, acted without sufficient authority in law and subjected themselves to individual liability.

There is no merit in this contention. The individual commissioners acted in concert in the performance of a public, statutory duty. There is no allegation in the complaint that the commissioners were actuated by motives of private gain, oppression or bad faith. Members of a public board, acting in the performance of a public duty and under a public statute, are not personally liable in a civil action for damages arising out of their acts, provided what they do is done in good faith. Valentine v. City of Englewood Board of Health, 76 N. J. L. 509; Johnson v. Marsh, 82 Id. 4; 85 Atl. Rep. 761. The determination of the constitutionality of an act is a purely judicial function residing in the courts. The making of the order by the board was a matter which was at least colorably within its jurisdiction. Grove v. Van Duyn, 44 N. J. L. 654. It the rule were otherwise, the public business of the state would be shackled, for public officers would be loath to perform their duties.

The seventh, eighth, ninth, seventeenth, eighteenth and nineteenth counts of the complaint are similar. The seventh count is typical of the others. The allegations thereof are substantially that beginning on or about the first day of March, 1937, and on divers other days and times to the commencement of the action, the defendant Pennsylvania Bailroad Company by its servants, agents and employes, with force and arms, broke and entered the particularly described close of the plaintiff B. & A. Bealty Corporation, and then and there put, placed and erected divers structures, barriers, fences and walls in and upon said close and kept and continued such structures, barriers, fences and walls without the leave and against the will of the plaintiff for a long space of time, thereby hindering and preventing the plaintiff from having the full use, benefit and enjoyment thereof. The allegation of resulting damage is that the plaintiff has thus been deprived of valuable frontage and access to and from the premises by way of Leesville avenue, whereby the land has been greatly depreciated in value. If the allegations are true, there has been a direct physical invasion of the land of the plaintiff and the count sets forth a good cause of action for trespass quare clausum fregil. The question of damages can and undoubtedly will be controlled by the court at the trial.

The result is that the motions to strike counts 1, 2, 3, 4, 5, 6. 10, 11, 12, 13, 14, 15, 16 and 20 will be granted, and the motions to strike counts 7, 8, 9, 17, 18 and 19 will be denied.

Appropriate orders may be submitted accordingly.