author: Haneacan, J. S. C.

text:
    LOUIS J. MANFREDI, PLAINTIFF, v. FRANK MANFREDI, ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided February 21, 1951.

      Mr. W. Louis Bossle, attorney for plaintiff.

      Mr. Irvin M. Lichtenstein (Mr. Marie Marritz, of counsel), attorney for defendants Prank Manfredi and Jennie Manfredi.

      Mr. John B. DiMona, attorney for defendant Eenato Canzanese.
   Haneacan, J. S. C.

The defendants seek to dismiss the plaintiff’s complaint on the grounds that it does not state a claim upon which relief can be granted, and seek as well a more definite statement of the complaint. The latter motion for a more definite statement was orally determined at the time of argument. The former motion, therefore, requires present consideration.

Plaintiff alleges that on March 1, 1950, the defendants Manfredi, then being indebted to him in the sum of $25,000, executed an agreement, the pertinent portions of which read as follows:

“Whereas, the party of the Second Part loaned to the parties of the First Part the sum of $25.000.00, which was used in the erection and construction of said building, which the parties of the First Part promised to repay to ihe party of the Second Part at the time of the completion of said building; and
Whereas, the parties of the First Part have been unable to repay said loan and are desirous of securing the payment thereof to the party of the Second Part, and .the party of the Second-Part in consideration thereof has agreed not to enforce the payment of said debt until said buildings and lands shall have been sold;
Now, Therefore, in consideration of the premises and of the mutual rights and benefits arising herefrom to each of the parties hereto, it is mutually agreed:
1. That to the extent of said sum of $25,000.00 the party of the Second Part has an interest in the lands and premises hereinafter described and the buildings thereon erected prior to the equity of the Parties of the First Part therein.”

The agreement contained a description of certain lands and premises which the plaintiff alleges, by reason of mutual mistake, failed to encompass all of the lands intended to be covered. The plaintiff, by his complaint, conceives that the agreement was an “equitable mortgage” and a lien upon the property therein described. The complaint as well alleges that implicit in the terms of said “equitable mortgage” was the duty of the defendants Manfredi to make all reasonable efforts to sell the buildings therein described, and that failing in said duty, the payment of said debt might be enforced within a reasonable time after the date of the agreement. The complaint further alleges that the defendant Canzanese, at the time that the defendants Manfredi executed and delivered to him a mortgage on said premises, had actual knowledge of the existence of the plaintiff’s “equitable mortgage” and constructive knowledge of said “equitable mortgage,” which was recorded the day prior to the recording of the said Canzanese mortgage. Plaintiff now demands relief as follows: (1) reformation of his “equitable mortgage” to include lands not therein described, and (2) a foreclosure of said “equitable mortgage.”

The defendants Manfredi allege that there is no absolute debt, but merely a conditional or contingent debt, and that the plaintiff agreed not to enforce the payment of the debt until the lands and premises were sold.

The gist of their motion is that the agreement which the said defendants Manfredi executed did not constitute an “equitable mortgage” on the premises therein described; that the defendants Manfredi were not obliged to sell the realty involved within a reasonable time after the date of said agreement, and that the plaintiff is not entitled to a foreclosure and sale of the property involved.

It becomes first necessary, therefore, to determine the nature of the instrument which is before us.

In J. W. Pierson Co. v. Freeman, 113 N. J. Eq. 268, 166 A. 121 (F. & A. 1933), the court said as follows:

“If a transaction resolves itself into a security, whatever may be its form and whatever name the parties may choose to give it, it is, in equity, a mortgage. If a deed or contract, lacking the characteristics of a common-law mortgage, is used for the purpose of pledging real property, or some interest therein, as security for a debt or obligation, and with the intention that it shall have effect as a mortgage, equity will give effect to the intention of the parties. Such is an equitable mortgage.”

In Rutherford National Bank v. H. R. Bogle & Co., 114 N. J. Eq. 571, 169 A. 180 (Ch. 1933), the court said as follows:

“The whole doctrine of equitable liens or mortgages is founded upon that cardinal maxim of equity which regards as done that which has been agreed to be, and ought to have been, done. To dedicate property, or to agree to do so, to a particular purpose or debt is regarded in equity as creating an equitable lien thereon in favor of him foi whom such dedication is made. This wholesome equitable principle is one of wide, if not universal recognition and application.”
“The form which an agreement shall take in order to create an equitable lien or mortgage is quite immaterial, for equity looks at the final intent and purpose rather than at the form. If an intent to give, charge or pledge property, real or personal, as security for an obligation appears, and the property or thing intended to be given, charged or pledged is sufficiently described or identified, then the equitable lien or mortgage will follow as of course.”

See also Metropolitan Life Ins. Co. v. Poliakoff, 123 N. J. Eq. 524, 198 A. 852 (Ch. 1938); Feldman v. Warshawsky, 122 N. J. Eq. 596, 196 A. 205 (Ch. 1937); reversed on other grounds, 125 N. J. Eq. 19, 4 A. 2d 84 (E. & A. 1938); 4 Pomeroy 691; also 53 C. J. S. 843; 33 Am. Jur. 427.

The form of the agreement is unimportant. The important element is the question whether the parties intended to give, charge or pledge the realty described in the agreement as security for an obligation.

It becomes necessary, therefore, to construe the agreement in ioto. The rules applicable to the construction of an instrument in writing which contains recitals are as follows: (1) that if the recitals are clear and the operative part is ambiguous, the recitals shall govern; (2) if the recitals are ambiguous and the operative part is clear, the operative part must prevail; and (3) if both the recitals and the operative part are clear but inconsistent with each other, the operative part is to be preferred. Bellisfield v. Holcombe, 102 N. J. Eq. 20, 139 A. 817 (Ch. 1927).

Employing this rule in the case sub judice, it is apparent that the parties, for the securing of the payment of a pre-existing debt and the postponement of the payment thereof, pledged the realty involved and created an equitable mortgage.

The next question to be considered is whether, under the circumstances, the debt referred to in the instrument upon which suit is brought may be said to be payable within a reasonable time after its execution or to be payable only when the realty therein described was sold.

Although counsel have been unable to discover adjudicated cases in the State of Hew Jersey, the general rule is that where the postponement of such payment is contingent upon the sale by the debtor of specified property, the debt is payable within a reasonable time.

In Nunez v. Dautel, 22 L. Ed. 161 (17. S. Sup. Ct. 1873), Mr. Justice Swayne said as follows:

“The paper was clearly not a promissory note, because it was not payable at a time certain, and it was not such a due-bill as the law regards as in effect a promissory note for the same reason. Story Pr. Notes, § 27; Salinas v. Wright, 11 Tex. 575; Ex parte Tootell, 4 Ves. 372. It was made up of the following particulars: it acknowledged the amount specified, consisting of principal and interest, to be due to the plaintiff for four years and six months’ services, and promised to pay him that sum, with interest, as soon as the crop could be sold, or the money could be raised from any other source.
No time having been specified within which the crop should be sold or the money raised otherwise, the law annexed as an incident that one or the other should be done within reasonable time, and that the sum admitted to be due should be paid accordingly. Payment was not conditional to the extent of depending wholly and finally upon the alternatives mentioned. The stipulations secured to the defendants á reasonable amount of time within which to procure in one mode or the other the means necessary to meet the liability. Upon the occurrence of either of the events named or the lapse of such time, the debt became due. It could not have been the intention of the parties that if the crop were destroyed, or from any other cause could never be sold, and the defendants could not procure the money from any other source, the debt should never be paid.”

See also 148 A. L. R. 1075.

Generally, when an instrument purports to be payable upon the happening oí a certain event, the question which must precede any inquiry as to the time oí payment, assuming that the event has not happened, is whether the instrument imports an absolute liability. If the event is one that is certain to happen, the mere promise to pay may import such an absolute liability. If, however, the event is one wholly or partially within the promisor’s control and therefore not certain to happen, the absolute character of: the liability cannot be inferred from the more promise, but must be sought in the other terms of the instrument or in extrinsic circumstances. The real significance of the provision that an instrument is payable upon the happening of an event that is wholly or partially within the control of the promisor is apparent after it has been determined whether the debt is an absolute one. If the instrument, read in the light of the surrounding circumstances, shows that the debt is an absolute one, it is reasonable to suppose that the parties intended that a reasonable effort should be made to cause the event to happen within a reasonable time.

There should be but little room for dispute that a debt which is already in existence does not or cannot change its character or absoluteness into a conditional obligation merely because a subsequent agreement between the parties postpones the payment of the debt until the happening of some future specific contingency. For this reason, it would appear that the question whether the debt is absolute or conditional — a matter of prime importance where the provision for payment upon a contingency forms a part of an original contract or obligation — should be but a mere incident of discussion where the agreement to pay upon a future event relates to a debt that was incurred by reason of a pre-existing contract or arrangement between the parties. 12 Am. Jur. 856, Contracts; 13 C. J.,p. 684; 17 C. J. S. 1066; 148 A. L. R. 1075.

The debt here arose out of a separate contract or arrangement which antedated the agreement setting the future event as determining the time for payment. The transaction under which the debt arose and that sought to be enforced had no immediate or contemporaneous connection. The agreement fixing the time for payment upon the sale of the realty is not a part of or coincidental with the original contract between the parties out of which the obligation itself arose.

At the time the instrument was executed there was, from the allegations of the complaint and the recitals of the instrument, an absolute, unconditional pre-existing debt. The payment of the debt was postponed until the happening of a contingent event, i. <?., the sale of the described realty, by an agreement separate, distinct and subsequent to that under which the debt arose. It was, under these circumstances, implicit that the sale would occur within a reasonable time. If this were not so, the debtor could postpone the maturity of the debt indefinitely and so deprive the creditor of his right of action for a similar period. Such a result would do violence to the intentions of the parties. Glazer v. Klughaupt, 116 N. J. L. 507, 185 A. 8 (E. & A. 1936).

The motion is, for the above reasons, denied.


source: Caselaw Access Project

author: McLean, J. S. C.

license: Public Domain

text:
    GRACE BRANDENBURG, PLAINTIFF, v. LEOPOLD W. A. BRANDENBURG, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided March 12, 1951.

      Mr. George P. Moser, attorney for plaintiff.

      Mr. Samuel M. Friedman, attorney for defendant.
   McLean, J. S. C.

This is a motion for an indefinite delay in the further hearing of the above case. It has been partly tried. The complaint was filed April 25, 1949, and the case is now entering its third year of judicial existence. An order to take the deposition of the defendant has been entered upon terms satisfactory to both counsel. Adjournments have been heretofore granted on the representation of counsel that efforts were being made toward an adjustment of the differences between the parties, resulting only in the substitution of counsel and further delay.

Defendant is now confined in the Federal Hospital at Springfield, Missouri, as a prisoner completing a five-year sentence. The date of his release is uncertain and because of other charges pending against him his future is unpredictable.

The purpose of the rules promulgated to implement our practice is to prevent unjustifiable expense and delay. Plaintiff is entitled to have her cause determined. Defendant is represented by competent counsel and is available for consultation. He should not be permitted to delay the trial of the action until the years dim the relevant proofs. The rules for taking depositions are designed to serve in such a situation and they afford every protection to those concerned.

.Defendant -will be given reasonable opportunity to perfect his defense, notwithstanding the time he has already had for such purpose. To that end, the further and final hearing will be set down for Monday, April 16, at ten o’clock at the Chancery Chambers, No. 1 Exchange Place, Jersey City. The taking of the depositions should be proceeded with; otherwise, it will be presumed that defendant is no longer interested and the case will be determined on the proofs already submitted on the part of the plaintiff. The time allowed anticipates disposal of any contest in the trial court, arid ample time for the record to be submitted to the Appellate Division before the summer recess.


author: William J. Brennan. Je., J. A. L.

text:
    IN THE MATTER OF THE PROBATE OF THE ALLEGED CODICIL OF MARY V. STROMING, DECEASED. GILBERT STROMING, ONE OF THE NEXT OF KIN, ETC., CAVEATOR-APPELLANT, v. RUSSELL E. STROMING, AS EXECUTOR, &c., OF MARY V. STROMING, DECEASED, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 12, 1951 —
    Decided March 5, 1951.

      Before Judges McGeeitan, Jayne and Wm. J. Bkbnnan, Je.

      Mr. Aaron Heller argued the cause for appellant (Messrs. ITeller <0 Laü's, attorneys; Mr. Irving Lloyd Gang on the brief).

      Mr. Donald, G. Oollesler argued the cause for respondent (Messrs. Oollesler ¡r Johnson, attorneys).
   The opinion of the court was delivered by

William J. Brennan. Je., J. A. L.

Appellant, Gilbert Stroming. filed a caveat against the probate of a codicil to the will of his mother. Mary V. Stroming. The Passaic County Court. Probate Division, after hearing, entered judgment on July 12, 1950, admitting the codicil to probate, and Gilbert appeals.

xlppellant’s brief argues that the trial judge “developed a prejudice against the caveator” which “of necessity influenced his subsequent rulings to the detriment of the contestant,” that this hostility was “perhaps precipitated by argument of (caveator’s) counsel, who sought to preserve and protect the interests of a client” and, further, “It required more than a perfectly controlled temper on the part of trial counsel to cope with the actions, arguments, criticisms and dictates of the trial court, especially where it was felt that there was no reason or provocation for such conduct.” The charge is based upon a number of sharp exchanges with counsel concerned with rulings upon objections to questions put to witnesses by appellant’s counsel and upon the vigor and nature of the examination of appellant made by the trial judge. Many of the exchanges with counsel and the court’s examination of appellant display the use by the j adge of a regrettable acerbity of language and an impatience of attitude toward the appellant which should have been avoided despite their provocation in many instances by the unwarranted persistence of appellant’s counsel in pressing his position after adverse rulings. “It must be borne in mind that, in the effectual maintenance of a strong and independent court system, the appearance as well as the actuality of fair and impartial judicial administration must at all times be sought:” State v. Illario, 10 N. J. Super. 475 (App. Div. 1950). The judge and counsel, as'officers of the court, share the responsibility fox- the faithful and meticulous performance of this high duty.

We have, in the circumstances, exercised our discretionary power uxxder Rule 1:2-20 (see Rules 4:2-6 and 3 :S1 — J3) and have made an independent finding of the facts. We are satisfied that the codicil was properly admitted to probate. We perceive no prejudicial error in the rulings on questions of evidence. Counsel for appellant conceded at the oral argument that the record included all evidence he sought to adduce except that he argues he was not permitted sufficiently to develop, particularly on cross-examination of witnesses, evidence of “suspicions circumstances” which he contends are inferable from the choice of witnesses to the codicil, the difference in value between his client’s inheritance and that of the beneficiary under the codicil and the bequest to that beneficiary not only of certain notes but also of all other obligations due to testatrix from Goodyear Sundries & Mechanical Go., Inc. The trial judge might well have allowed greater latitude of examination on these subjects. No prejudicial error was committed, however, inasmuch as it is plain to us that, in this case, the fullest development of these circumstances would not have supplied the requisite proofs to sustain the caveator’s claim.

Mary Y. Stroming died January 27, 1950, at the age of 58, survived by Gilbert and another son, the defendant executor, Russel E. Stroming. Her husband and the sons’ father, Frederick, died in January, 1940. He had operated the corporate business of Goodyear Sundries & Mechanical Co., Inc., in New York City. After his death his widow acquired 51 per cent of the capital stock of the company and Russel acquired the remaining 49 per cent. Mrs. Stroming, as president, and Russel, as secretary, thereupon undertook the active management of the business. They prospered from 1942 to 1948 sufficiently to receive salaries of $300 per week each. When business fell off, Russel and his mother both advanced sums for working capital which were recorded on the company’s books as loans and which at the end of 1948 amounted to $5,250 as to each. Mrs. Stroming’s salary was reduced to $200 per week and remained at that figure until her death. Russel’s salary was reduced also, but not so much, and the reduction was substantially restored when his mother’s illness forced her to stop work in April, 1949, and Russel assumed the full burden of running the business.

In January, 1949, the business was in need of more assistance and Mrs. Stroming advanced $10,000 for which she received 32 company notes in the amount of $300 each and one note for $400. Russel had just bought a home and could not contribute to the financing. None of the notes was paid before testatrix’ death.

On November 18, 1946, Mrs. Stroming executed a will, drawn by Mr. Kalfus, a New York attorney who was and lor ten years had been counsel for the company and was then in private practice. Two months later, in January, 1947, the attorney withdrew from private practice and joined the company as a vice-president.

The will bequeathed Mrs. Stroming’s 51 per cent stock interest in the company to Russel, and gave the residue of her estate to Gilbert.

Consistent with her testamentary plan, testatrix made gifts to Gilbert of $9,000 in 1947 when he purchased his home, and $12,000 on or about October 25, 1949, when she sold her residence. In April, 1949, before being hospitalized for a second operation for a cancerous condition, she entrusted the company notes to Gilbert. He does not claim that she intended to make a gift to him of the notes at the time but only that he understood they were to be his upon her death as part of what he was to receive under her will.

In October, 1949, about the time of the $12,000 gift to Gilbert, Russel was required to advance $3,500 to the business. He told his mother about it and she offered to advance a like amount to keep their positions “equal.” Russel suggested that she cancel $3,500 of the notes instead. She asked Gilbert to return the notes and he refused. Gilbert denies that this happened, but we do not credit his denial. Mrs. Stroming not only told Russel about it but she also told her sister, Mrs. Chesebrough, and her attorney, Mr. Kalfus. Testatrix was concerned about Gilbert’s attitude because she feared he might “make trouble” for Russel. On November 22,1949, Mr. Kalfus paid her a social call when he had occasion to be in New Jersey on company business. She asked his advice. He assured her Gilbert could do nothing with the notes as they had not been endorsed and that the notes in any event -would probably be paid off in her lifetime as business improved. She told him “* * * the business as it was on November 22nd was not the business it was when she drew her original will, that in the meantime she had given plenty of money, she told me, to Gilbert. She told me she had sold her house not long before, that she wanted her sons to have the money while she was alive, and she told me that any money due to her from the corporation was really part of the corporate business and she wanted that part to go to Russel and the other things she had to go to Gilbert.” Mr. Kalfus advised her that this could be accomplished by the making of a codicil to her will leaving Russel any balance owing her bjr the company at her death. She instructed him to prepare such a codicil and ho did so that afternoon and it was executed that night. It bequeathed to Russel, in addition to her stock in the company, "all claims which I may have at the time of my decease against the said Goodyear Sundries & Mechanical Co., Inc., or monies loaned, or otherwise, and represented by promissory notes or open accounts.”

Testatrix enjoined Russel and Russel’s wife, Elinor, to whom she gave the executed codicil for safekeeping, Mr. Kalfus and her sister, Mrs. Chesebrough, to say nothing about the codicil. Gilbert never learned of its existence until after his mother’s death when he and Russel went to the Passaic Comity Surrogate’s office to probate the will and Russel produced tire codicil.

Gilbert has abandoned the contentions made below that his mother lacked testamentary capacity when the codicil was executed and that he affirmatively proved that Russel liad actually exercised undue influence upon their mother to execute the codicil. His sole reliance on the appeal is upon the argument that the proofs established the existence of a confidential relation between Russel and his mother, throwing upon Russel the burden of proof to show the absence of such influence, which burden, Gilbert argues, Russel did not meet.

Normally the person asserting undue influence has the burden to prove clearly its existence, that is, in this case, convincingly to show that the testatrix’ "free agency” was destroyed by the exercise of improper influence constraining her to do what she otherwise would not have done in modifying the disposition made by her will. See In re Gotchel, 10 N. J. Super. 208 (App. Div. 1950) ; In re Neuman, 133 N. J. Eq. 532 (E. & A. 1943). The beneficiary, however, has the burden to show the absence of undue influence where the person charging it proves the existence of a confidential relation between the beneficiary and the testatrix and also proves at least “slight circumstances” or indicia of undue influence exercised upon the decedent. Gellert v. Livingston, 5 N. J. 65, at 71 (1950).

There are innumerable cases involving confidential relationship, but the courts have not been able precisely to define what it is. See Foster v. Medela, 9 N. J. Super. 195 (App. Div. 1950); In re Fulper, 99 N. J. Eq. 293 (Prerog. 1926). A confidential relation is not confined to any specific association of the parties; “Its essentials are a reposed confidence and the dominant and controlling position of the beneficiary of the transaction.” Foster v. Medela, supra. “It is clear that the dominance must be of the mind, and the dependence must be upon the mind rather than upon the hands and feet of the donee.” Chandler v. Eardgrove, 124 N. J. Eq. 516 (Ch. 1938). It exists when the circumstances make it certain that the parties do not deal on equal terms, but on the one side there is an overmastering influence, or, on the other, weakness, dependence ot trust, justifiably reposed. It does not exist where the parties deal on terms of equality, although, as here, they are at the same time mother and son and business associates. See Croker v. Clegg, 123 N. J. Eq. 332 (E. & A. 1938).

The testatrix was undoubtedly very ill at the time the codicil was executed. She did not, however, know how ill she was, because on the advice of her physician her family faithfully kept the truth from her. They encouraged her in her belief that she had jaundice and that recovery would be slow but nevertheless certain. Her first operation was performed in March, 1948, and following her convalescence she returned to work, traveling from Passaic to New York and spending at least four full days each week at the office until April, 1949. After her second' operation she sold her home and lived with Gilbert and his wife about six weeks and then took her own apartment in Barry Gardens, Passaic, in early November, 1949, and lived there alone, attended only during the day by a nurse until the middle of December when a night nurse was also employed. She had visitors every day, usually her sons and their wives and her sisters, but others also. As late as January 11, 1950, her birthday, she had a party of a dozen or more of her lady relatives and friends. Her family knew that her death was inevitable, but until two weeks before her death when she lapsed into a coma there was no sign of its imminence. She was “gay,” “always a happy go lucky disposition,” “her mind was keen,” “never incoherent,” “always normal.”

Appellant makes a particular point that she was constantly taking drugs to relieve her pain, but his argument that she was in a state of continuing narcosis is not supported in the evidence. Her doeior prescribed sedatives to be taken at times of her choice and these, he said, when taken “kept her quiet, drowsy and sleeping part of the time,” but otherwise she was “wide awake” and “she certainly didn’t lose her mental faculties but they certainly were lessened,” “she talked sensibly.” She managed her household affairs, paid her own bills, and manifested throughout a determination to maintain her own independence.

Gilbert saw his mother almost daily both before and after the codicil was executed. There was no evidence of any attempt to exclude him from his mother’s society. As late as Christmas Day Gilbert’s wife, Irene, had a conversation with tesiairix about the disposition of her property. Irene testified that testatrix told her again what she had previously said on occasions in Ociober and November, that she meant Eussel to have the business as his own, “he liad worked hard for it,” and since Irene and Eussel’s wife, Elinor, “weren’t exactly on friendly terms, she thought it would be better if she left Eussel the business and my husband (Gilbert) the residue of her estate. She mentioned that to me several times.”

The essentials of a confidential relationship in the specific sense which makes applicable the doctrine relied on by appellant do not appear. Further, we are not persuaded that Eussel was, as appellant suggests, the author of the plan to have his mother execute the codicil. Testatrix had made known her worry and distress because of Gilbert’s refusal to surrender the notes to her sister, Mrs. Chesebrough, a week earlier. There is not an iota of proof that Mr. Kalfus’ visit was prompted by any motive but the desire of a friend and fellow company officer to pay his respects to his superior. Indeed, the subject of the notes was not discussed by him and the testatrix until after Gilbert and Irene had come to the apartment while Mr. Kalfus was there, and after their departure testatrix told Mr. Kalfus the story of Gilbert’s refusal and asked his advice what to do. Em sel learned of his mother’s plan only when Mr. Kalfus returned to the company office and told him about it. Any suspicion in this circumstance is dispelled by testatrix’ conversations with Mrs. Chesebrough that afternoon after Mr. Kalfus had left, when she told her sister, “Oh, I feel relieved,” “I have had a paper drawn up that the notes won’t do Gilbert any good so now I will let him wonder why I am not asking for them any more.”

Nor do we find any indication of an evil plan or design in the fact that the codicil was witnessed by Russel’s wife, Elinor, and two other witnesses brought to the apartment by her. That was done on instructions of the testatrix given by telephone .to Elinor. One of the witnesses, Mr. Lioy, had witnessed the original will, and the other, Mr. Dewey, who was Elinor’s uncle, was a friend of long standing of the testatrix. There is no reason suggested by appellant to discredit their testimony of what occurred. Roth said that upon their arrival and after exchanging greetings, testatrix asked them to excuse her while she read the codicil, which Elinor had brought. She' called them back to her room after an interval and explained that she was executing a “codicil” or “addition” to her will, and thereupon she signed it and they and Elinor witnessed it. Testatrix folded it carefully, before they signed, in such manner that they could not read its contents, and after its execution she gave it to Elinor with the request that Elinor take care of it. They talked a while longer in a general vein and then left.

Everything surrounding the-execution of-the codicil and the subsequent secrecy about it on the part of testatrix and Russel and his wife is entirely consistent with Mrs. Stroming’s deter-ruination not to have any unpleasantness between her and Gilbert, or between her sons, while she lived. Both Gilbert and his wile, Irene, attempted in their testimony to portray Mrs. Stroming as gullible because impaired in her mental faculties, but the attempt utterly fails. Ills mother’s understanding app recial ion of her problem and what was required for its solution, is the determinative fact, fully supported in the proofs, which completely dissipates the inference of selfish design to take advantage of his mother’s illness which he charges to his brother. Irene’s testimony of her conversation with testatrix on Christmas Day unwittingly substantiated the existence of Mrs. Stroming’s actual motive when Irene revealed the strain in her relations with Elinor and Mrs. Stroming’s feeling “it would be better if she left Russel the business and my husband the residue of tlie estate.”

The judgment allowed a counsel fee to the attorneys for the executor and directed that such fee, together with costs, be paid from the residuary estate. An allowance of counsel fee to counsel for the appellant was denied. Gilbert challenges these aspects of the judgment and also the amount of the counsel fee allowed the attorneys for the executor as excessive. The applications were addressed to the trial court’s discretion and we find no error in its exercise in tlie circumstances of this case.

Affirmed.


author: Dojmges, J. S. C.

text:
    IDA TRIGGIANI AND LOUIS TRIGGIANI, HER HUSBAND, PLAINTIFFS-APPELLANTS, v. OLIVE OIL SOAP CO., A CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 26, 1951 —
    Decided March 15, 1951.

      See also 1 N. J. Super. 55, 62 A. 2d 153.

      Before Judges Jacobs, Bigelow and Douges.

      M.r. Louis Santorf argued the cause for plaintiffs-appellants.

      Mr. John 17. Hand argued the cause for defendant-respondent (Messrs. Evans, Hand •& Evans, attorneys).
   The opinion of the court was delivered by

Dojmges, J. S. C.

(temporary J. A. D.). This is an appeal by the plaintiffs from a judgment of dismissal rendered by the Passaic County Court.

Plaintiff, Ida Triggiani, was injured as the result of a fall on the stairway of a factory building owned by the defendant, part of the fourth floor of which was leased by it to Mrs. TriggianPs employer. She had worked in this building for about 11 months prior to the accident on November 11, 1942. On that day she worked from 3 :30 i>. m. to 11:30 p. jvi. The only method of ingress and egress to this floor was by a flight of stairs which contained a landing on each floor and between floors.

Plaintiff testified that the stairway was equipped with light fixtures, and that the person who operated the light switches was a night watchman who was employed by the defendant. However, for a period of two months prior to the accident the lights remained unlighted.

On the day of the accident, Mrs. Triggiani stopped working at 11:30 p. si. The light on the fourth floor was lit, but as she descended, she saw that the lights on the third floor were out. She reached for the railing but missed the step and fell.

The court below decided that plaintiffs had not adduced sufficient evidence to warrant the submission of the case to the jury and entered a judgment of dismissal.

At the outset, it might be pointed out that where, as here, a landlord retains control of the passageways and stairways for the common nse of the tenants, he is bound to see that reasonable care is used in having said passageways and stairways reasonably fit for use. However, if they are maintained in a reasonably fit condition, there is no duty to maintain lights, unless the landlord has assumed the duty of providing necessary lights either expressly by contract or by implication’ of law, or if he is required to do so by statute. Gleason v. Boehm, 58 N. J. L. 475 (Sup. Ct. 1896); Solomon v. Finer, 115 N. J. L. 404 (Sup. Ct. 1935). In the instant case there was evidence, through the testimony of Mrs. Triggiani and of Mr. Mainardi, that the lights were turned on and off by an employee of defendant. Therefore, a question for' the jury may have been raised with respect to the assumption of the duty. However, if a landlord assumes a duty of providing and maiirtaining lights upon a stairway, it continues to be Ris duty, thereafter, to exercise reasonable care to maintain .a light until notice of its discontinuance has been given. Rhodes v. Fuller Land Improvement Co., 92 N. J. L. 569 (E. & A. 1919).

A thorough review of the record discloses by the plaintiff’s own testimony that the defendant discontinued any .assumed duty to maintain the lights in the stairway. The failure of the defendant to maintain the lights for a period of two months was an abandonment of the assumed duty. Mrs. Triggiani had personal knowledge of this abandonment for she testified that the lights were out during these two months and that she used that stairway during that time. This .was effective notice to her as a matter of law. Notice is just as effective if given by acts and deeds as by express communication. Cf. Cavanagh v. Hoboken Land Co., 93 N. J. L. 163 (E. & A. 1919).

Viewing the plaintiffs’ evidence as a whole and in its most favorable light, we conclude that the trial court did not err in dismissing the case.

Our. determination is dispositive of the appeal and it is not necessary for us to consider the questions of assumption of risk and contributory negligence raised in the briefs.

The judgment under review is affirmed.


author: William J. Brenxtan, Jr., J. A. D.

text:
    DOMINICK FERRARO, PLAINTIFF-RESPONDENT, v. GOTTHARD ZURCHER, Sr., AND UNITED STATES CASUALTY CO., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1931 —
    Decided February 20, 1951.

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

      Mr. Harry Krieger argued the cause for plaintiff-respondent.

      Mr. James J. Skeffingion argued the cause for defendants-appellants.
   The opinion of the court was delivered by

William J. Brenxtan, Jr., J. A. D.

Appellant insurance company filed-with the Division (then styled Bureau) of Workmen’s Compensation a duly executed Form 3 (R. 8. 34:15-98) dated December 21, 1945, undertaking to pay petitioner workmen’s compensation for permanent total disability. The bureau approved the agreement by an executed Form 5(a) dated February 13, 1946 (R. 8. 34:15-50). Payments wore made under the agreement until October 13, 1946, when they were stopped. Petitioner filed his claim petition on May 26, 1948. The deputy director after hearing found that petitioner’s disability did not exceed 20 to 25 per cent permanent partial disability and dismissed the petition by determination entered Majr 31, 1949, because the paj'inents which had been made under the agreement exceeded the compensation payable for such disability. The Passaic County Court on appeal found that petitioner had suffered permanent total disability and on vYugust 23, 1950, entered judgment accordingly. Defendants appeal.

Petitioner argues that the approval of the agreement set forth in Form 5(a) issued by the bureau has the force of a judgment binding upon appellants, subject to modification only if the appellants have proved a diminution of disability in accordance with B. 8. 34:15-27. Not so. An approval pursuant to R. S. 34:15-50, which is what the approval was, is not a determination upon the merits and thus is not a finality to be reopened only to the extent permitted by R. 8. 34:15-27. Form 5(a) itself provides: “If payments are not made as set forth (or if, for any reason, there should be a modification of this settlement) this Bureau should be notified at once.” The Division of Workmen’s Compensation was powerless to view that approval as final. Nagy v. Ford Motor Co., 6 N. J. 341 (1951) ; Donofrio v. Haag Bros., Inc., 10 N. J. Super. 258 (App. Div. 1950). Before there exists an adjudication of the extent of disability which may be modified only under Ji. S. 34:15-2? ‘(that is, when, as here, the only issue involved is the extent of disability), there must be a determination and rule for judgment which includes a finding of fact as to the amount of the then present disability and which is entered after hearing in open court upon consideration of the sworn testimony of petitioner and other witnesses present, together with any “stipulations of the parties,” and which otherwise satisfies the requirement of the proviso to JI. S. 34:15-22, as amended by L. 1945, c. 74, p. 390, effective April 2, 1945.

ISTo agreement between an employee and employer or insurance carrier for compensation not approved by a hearing deputy in open court operates as a bar to the formal determination of any controversy. 11. S. 34:15-22; Nagy v. Ford Motor Co., supra. When payments under the agreement stopped, petitioner availed himself of the remedy provided by 11. 8. 34:15 — 51, that is, he filed his petition within two years after the last payment for an original and formal adjudication of his claim upon the merits. The burden of proof upon that petition was not upon appellants to prove a decrease of disability but upon petitioner to sustain by preponderant evidence the. claim asserted therein that his permanent disability was total.

At best the agreement was some evidence against appellants as a declaration against interest. Miller v. National Chair Co., 127 N. J. L. 414, 423 (Sup. Ct. 1941) ; affirmed, 129 N. J. L. 98 (E. & A. 1942). It spoke, however, as of December 21, 1945, and upon this record was not of itself sufficient proof to sustain the allegation of permanent total disability made in the petition filed May 26, 1948. Cf. Burns v. Thomas A. Edison, 92 N. J. L. 288 (Sup. Ct. 1919) ; Dubies v. Manufacturers Liability Insurance Co., 96 N. J. L. 107 (Sup. Ct. 1921); affirmed, 97 N. J. L. 567 (E. & A. 1922) ; Craciola v. Lewis, 253 N. Y. S. 752 (App. Div. 1921) ; Lanni v. Amsterdam Building Co., 217 App. Div. 278, 216 N. Y. S. 763 (1926); Anthus v. Rail Joint Co., 185 N. Y. S. 314 (App. Div. 1920); affirmed, 231 N. Y. 557, 132 N. E. 887 (1921); O’Boyle v. Harry Seitz & Sons, 160 A. 145 (Super. Ci. Pa. 1932).

The question for our decision is what percentage of permanent disability was proved. In our approach to the problem determinative weight in the first instance is given to the factual findings of the County Court. Donofrio v. Haag Bros., Inc., supra; McGowan v. Peter Doelger Brewing Co., 10 N. J. Super. 276 (App. Div. 1950). We are empowered, however, in our discretion, to make independent findings of fact when the interests of justice require it, and our review of this voluminous record persuades us that we should do so in this case. Rule 3 :81-13 (cf. Rules 1:2-20 and 4:2-6).

Petitioner was 67 years of age when on August 25, 1943, he suffered a serious brain injury by falling from a garbage truck on which he was working for the defendant Zurcher. He suffered a subarachnoid hemorrhage, although there was no skull fracture. He was hospitalized for seven weeks. Three weeks after the accident the insurance company retained Dr. Bohl to attend him; Dr. Bohl treated him thereafter and for a considerable period after his discharge from the hospital on October 13, 1943. The doctor’s opinion in 1945 was that petitioner was totally disabled and upon that opinion the insurance company prepared and filed the Form 3 agreement of December 21, 1945. Dr. Bohl re-examined petitioner on October 12, 1946, and concluded he had made “a remarkable recovery” and that his then present overall permanent partial disability did not exceed 20 to 25%. The insurance company discontinued payments under the agreement the following day, October 13, 1946.

The petitioner had performed arduous manual labor all his life. His testimony at the hearing and his complaints to his own medical witness, Dr. Policastro, when that doctor examined him on June 1, 1948, and to Dr. Blumberg, appellants’ medical witness, who examined him on January 3, 1949, were of alleged virtual loss of memory, persistent pains through the back and head, dizziness, constant fatigue and, as a result, completo incapacity to do any kind of sustained laboring work; that when he tried to work, which he said was usually only around his garden, and once when he tried to help in the building of his church, and again when he tried to take a job with the Borough of West Paterson, his weakness and dizziness and the pains in his back forced him to stop. Both Doctors Policastro and Blumberg accepted these complaints as residual consequences of his injury, and based thereon, Dr. Blumberg, appellants’ witness, like Dr. Bold, the treating physician, originally held the opinion that petitioner was totally disabled.

The appellants’ proofs showed that petitioner had exaggerated his condition and symptoms in a very substantial degree. His responses on cross-examination to questions concerning past events exploded his claim of loss of memory. He had been under surveillance by the insurance company since •July 11, 1916, when the carrier was told by defendant Zurcher that he had seen petitioner digging a trench with pick and shovel. The carrier’s then claim manager took motion pictures and still photographs of him on five days in July, 1946, showing him digging the trench and using a pick and shovel, shoveling dirt from the road into a truck and lifting and carrying heavy hose. It was in the following October that Dr. Bohl re-examined him and that payments under the agreement were discontinued. After the petition was filed on May ,26, 1918, more motion pictures and still photographs were taken at intervals on nine days in the subsequent mouths of August, September and October. They showed petitioner digging another trench, hoeing weeds and cleaning up fill at an excavation. In March, 1919, while the hearings were in progress, still more motion pictures and photographs were taken showing him working in his garden with pick and shovel and doing labor work at a development of the Garrett Park Land Company. There was also evidence that the Borough of West Paterson had paid him $768.13 for laboring work over the three-year period from the fall of 1945 to ihe fall of 1948, and that Garrett Park Land Company paid him $509.92 for work as a handyman performed from time to time during the year 1948.

The County Court was not justified on this record in accepting petitioner’s testimony as true and in reaching its conclusion in unqualified reliance upon the opinion of his doctors, particularly that of Dr. Policastro, who had based his judgment largely upon his belief in the truth of the symptoms related to him by petitioner. Dr. Policastro testified on January 6, 1949, and did not see the pictures, which were put in evidence on March 31, 1949, without, we may suppose, prior knowledge by petitioner or his attorney of their existence. It is a reasonable inference that Dr. Policastro’s opinion would have been influenced by the activities of petitioner indicated by the pictures- in light of their substantial impeachment of petitioner’s recital of symptoms and the impression he made when the doctor examined him, “passive,” “dazed and emotionless attitude,” “uncertain gait,” “he walked with a wide step, like a drunkard,” upon which the doctor’s opinion was so largely premised. Too, it must count against petitioner that he did not take the stand in rebuttal to .attempt to reconcile his testimony and the symptoms he had related to the doctors with the damaging evidence shown by the pictures.

We are not persuaded, on the other hand, by appellants’ argument that the evidence of the motion pictures, fortified by Dr. Blumberg’s opinion, is to be deemed decisive against a finding of any permanent disability in excess of 20 to 25%. Dr. Blumberg said that, “* * * having seen those movies and those stills, by no stretch of the imagination could the conclusion be possibly drawn that this patient is totally disabled. And the only conclusion I can make is that'I unfortunately was misled in my original opinion. And I do not believe, giving the patient credit for all my findings, that his disability would exceed 20% of total at the outset.” He said he had now concluded after looking at the pictures that petitioner’s complaints to him of noises in the head, pain in the back of neck, pain throughout entire back, impaired vision and poor memory were not to be believed and that his gait at the time of the examination on January 3, 1949, and his unsteadiness were simulated and that “he does not usually walk in that manner described,” that his opinion “following the time of my examination is qualified on what has been demonstrated to me in the movies and in the stills, that on that basis the man has a disability which does not exceed 20% of total from any cause.” ' The deputy director also accepted the motion pictures as having the effect ascribed to them by Dr. Blumberg and this led him to reject all of petitioner’s medical testimony, both that of Dr. Policastro and that of Dr. Eubacky (we will discuss the latter’s opinion at more length) and “to accept the opinion oí Dr. Blumberg as the more accurate opinion on that subject.”

Petitioner’s own testimony unquestionably stands as substantially impeached and, to the extent his medical witnesses based their opinions on his exaggerated subjective symptoms, those opinions, of course, cannot be unqualifiedly accepted. The Compensation Act, however, “provides social insurance in the common interest as well as the interest of the workman,” Nagy v. Ford Motor Co., supra, and does not sanction punishment of exaggeration or indeed misrepresentation by denial of proper compensation for a disability otherwise sustained by the proofs.

That petitioner suffered a severe and usually disabling brain in j ury is amply proved. Dr. Bohl said that when he first saw petitioner in 1943, “I felt he was greatly disabled and that he apparently had a kind of had injury. Considering the age of the man, he was thrown out of a truck, and having had a concussion and had an epidural hemorrhage, these are serious injuries, and you.must conclude, that if they are so, the man was not in good shape." The deputy director was satisfied that petitioner had suffered “a most unusual injury” and “brain damage” but, because of what he saw in the motion pictures, was persuaded that “By some miraculous recuperative power that this petitioner was able to muster or to put in motion, he has now recovered sufficiently that he is able to do the work that a man of his age without any injury would have a struggle or at least an effort to perform.” The seriousness of the injury was not feigned, and because they recognized its seriousness all of the doctors could and did readily accept petitioner’s recitals of its results as logically to be expected to flow from such an injury. Petitioner seemingly has not had a continuing complete incapacity but he is, nonetheless, permanently disabled to a substantial extent.

Our impression is that Doctors Bohl and Blumberg were overpersuaded by the motion pictures to reject petitioner’s claimed symptoms not merely as overstated but as completely non-existent and to discount their original opinions more than the facts warrant. And the deputy director’s exclusive reliance upon the pictures seems to have caused him to overlook or too lightly to consider other substantive proofs in petitioner’s case which, while not sustaining a claim of total permanent disability, supports certainly, with the proofs of a serious injury, a substantially higher partial disability than 20 to 25%.

The pictures include scenes taken of petitioner’s activities in March, 1949, while the hearings were being held and when petitioner was employed by Garrett Park Land Company, as he had also been on occasions during 1948. The president of that company was a witness for appellants. His testimony portrays petitioner’s capacity in a very different light than the impression of it gained in watching the motion pictures. When looking at the activities of petitioner depicted by the films the impression is of an individual with an almost complete absence of physical impairment. The company’s president, however, testified that petitioner could not work every day but only on days “if he feels fit.” The witness rode petitioner to and from the job and said that on many days “he was unable to go to work”; he said further that he did not ask petitioner to do heavy work and that on occasions “I would see by his condition that he should go home and I would pick him up and take him home.” “He would be fagged out, played out.” This witness’ testimony on appellants’ behalf can not be discounted for bias or interest and is entitled to substantial weight.

There was also other evidence of a similar nature. James Braio testified that in 1947 while building his own home he hired petitioner from time to time to help dig a ditch, “But it was not heavy work,” “This man worked slowly. At intervals lie would rest. He did some work, and at the end he would feel tired.”

The Superintendent of Public Works of the Borough of West Paterson testified he found petitioner to be unsatisfactory. “He couldn’t match the other men as good as they were working.” “Well, if he worked two minutes he would rest one minute of it,” “I tried him several times digging but he seemed to get in his own way, so I had him do other work.” The superintendent discussed petitioner’s unsatisfactory performance with superiors at the borough hall but kept him on nevertheless.

The pastor of petitioner’s church testified that before the accident petitioner “was a very happy disposition man, and since the accident I find him all depressed and very troubled with himself, downhearted and afflicted”; that petitioner volunteered in November, 1946, to help in the building of the church, “But after I saw how he would act I was afraid to let him work and I told him not to work.”

Finally Dr. Eubaeky, an orthopedist, who examined petitioner on J une 7, 1948, testified that he gave petitioner several objective tests upon the results of which his opinion that petitioner was totally incapacifated was largely based. He made no mention in his evidence of having had from petitioner a history of headaches, backaches, loss of memory or other subjective complaints such as were given by petitioner to Drs. Policastro and Blumberg, and his opinion is, therefore, not subject in the same degree to the infirmity of a discredited basis. In addition, petitioner did tell this doctor that he had attempted some work; “that at the suggestion of the adjuster of the insurance company he took a job with the Borough of West Paterson because lie was told the exercise would make him feel better,” “that he worked intermittently a few days for about two weeks and then had to quit because of pain resulting in weakness.” This was not quite the full story, but it is not wholly inconsistent with the testimony we have reviewed. The doctor said his examination satisfied him “petitioner presents a typical history of postconeussion syndrome,” that “the paraspinals were both tense and spastic, and he had a series of myostic nodules scattered throughout both lumbar and both gluteal groups,” “Indicative of muscular pathology due to irritation of fibers.” “It is possible to be due to some other causes, but it is probably due to trauma.” “Whatever he had prior to this, if it was not disabling, was aggravated by the injury,” that while admitting that disability resulting from advancing years “is usually gradual but it may be hastened and accelerated by trauma. That is what I think happened in this instance.”

In the face of these proofs the motion pictures cannot be accorded decisive evidentiary weight. This conclusion is strengthened by the consideration that the film is a single reel put together by splicing the ends of three 100-foot rolls and one 75-foot roll. The reel requires approximately 15 minutes to project. The impression upon the viewer is of continuous activity on the part of petitioner, although, in fact, the film depicts separate incidents which occurred on 15 different days over a period of almost three years, some in 1946 and others in 1948 and 1949. This presentation of isolated incidents occurring at widely separated times gives the deceptive impression of a continuing performance and tends to cause the viewer to infer that petitioner has a capacity for sustained effort, which clearly is not the fact.

On the whole case, our study of the record brings us to the conclusion that, while petitioner did not prove he sustained a permanent total disability as found by the County Court, his permanent total disability substantially exceeded the SO to S5% determined by the deputy director. Our independent finding, after our review, is that the impairment suffered was a permanent partial disability of 70%.

The judgment of the County Court is modified to assess petitioner’s permanent disability at permanent partial disability of 70%, and, except as so modified, the judgment is affirmed.

No costs to either party.


author: Peoctoe, J. A. D.

text:
    LENA STEFFLER, PLAINTIFF-RESPONDENT, v. RUDOLPH SCHROEDER, AS EXECUTOR OF THE LAST WILL AND TESTAMENT OF LOUISE WINDISCH, DECEASED, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1951 —
    Decided February 20, 1951.

      Before J udges Eiieend, Peoctoe and Rogees.

      Mr. Henry J. Oamby, attorney for and-of counsel with appellant.

      Air. Samuel JI. Friedman argued the cause for the respondent (Alessrs. Brand .& Sciorsci, attorneys).
   Idle opinion of the court was delivered by

Peoctoe, J. A. D.

Plaintiff’s action was brought to recover for services rendered by her to defendant’s testatrix, Louise AYIndisch.

The complaint consisted of two counts. The first was in quantum meruit and the second was grounded on a promise of the testatrix to reimburse the plaintiff in her will. A voluntary dismissal was entered on the second count at the beginning of the trial. The case, based on the first, count, was submitted to the jury which returned a verdict in favor of the plaintiff. The defendant appeals and advances the following grounds for reversal: (1 )-it was error to admit the testimony of the plaintiff relating to her transactions with the decedent; (2) plaintiff did not establish a contract with the decedent under which she was to be paid for lier services; (3) the vex-diet was not supported by the evidence; (4) the court erred in denying defendant’s offer of proof of payment.

Plaintiff testified she was not related to Mrs. Windisch, the deceased; that, during the six-year period preceding Mrs. Windisch’s death, plaintiff did household and other work at the home of the decedent, including making repairs, two days every week and often at night.

Plaintiff’s witness, Annette Braun, testified that she frequently visited Mrs. Windisch at her home and that every time sire was there she saw the plaintiff working about the house; that Mrs. Windisch told her “she wouldn’t know how to get along without Lena, because she was such a faithful person,” and that at her death “she would remember Lena well, a substantial sum for all the work she has done all these years,” and that she, the decedent, had so advised the plaintiff.

Another witness for the plaintiff, Florence Martin, testified that Mrs. Windisch, after mentioning the work performed for her b3r the plaintiff, said: “I intend to leave her something in my demise.”

A provision for the plaintiff in decedent’s will, which was in evidence, consisting of a bequest of $200 and a wristwatch, $50 in value at most, was refused on the ground that a larger sum was due her.

The appellant urges that, under B. S. 2:97-2, the trial court should have excluded the plaintiff’s testimony regarding the work she did for the decedent. However, the first objection to this testimony was not made until after it was completed; the objection came too late. See, Rowland v. Rowland, 40 N. J. Eq. 281, 284 (E. & A. 1885); Hoey v. Dell, 10 N. J. Super. 185 (App. Div. 1950). Moreover, it was admitted in the pretrial order that services were rendered by the plaintiff to Mrs. Windisch during her lifetime.

Appellant further contends that plaintiff did not establish a contract with decedent under which she was to be paid for her services.

Where services are rendered on the mere expectation of a legacy, and no legacy is left, there can be no recovery. Grandin v. Reading, 10 N. J. Eq. 370 (Ch. 1855). However, whore services are rendered by one not a member of the family, and such services are voluntarily accepted, the law will imply a promise upon the part of the recipient to pay a reasonable amount for them. Disbrow v. Durand, 54 N. J. L. 343 (E. & A. 1892). And, where services are rendered under a specific agreement to compensate for them by a legacy and no testamentary provision is made, an action will lie upon a quantum meruit. Stone v. Todd, 49 N. J. L. 274 (Sup. Ct. 1887). Such intended provision in the will is but the method of paying an existing obligation to compensate for the services rendered. Mulrooney v. O’Keefe, 98 N. J. L. 853, 856 (E. & A. 1923). Whether services are rendered upon an express or implied promise that compensation will be made therefor, or are performed gratuitously with a hope of receiving a legacy from the person for whom the servicies are rendered, is a question to be submitted to the jury when the testimony leaves the matter in dispute. Frean v. Hudson, 87 N. J. L. 244, 216 (E. & A. 1915). Where services are rendered under an express agreement to pay for them generally by legacy without any agreement as to the amount or character of the legacy, except tliat it is to pay for the services, an agreement is implied that the legacy shall be sufficient to compensate for the reasonable! value of the services, and the legatee may at his election accept the legacy, in which case he is estopped from alleging its insufficiency and barred of any further action; or he may refuse the legacy and sue for the value of the services as on a quantum meruit. Schmetzer v. Broegler, 92 N. J. L. 88, 92 (Sup. Ct. 1918).

In the present case, there was ample testimony for the jury to find that the plaintiff, not being a member of decedent’s family, rendered services to decedent with the mutual understanding that the plaintiff would be compensated for such services by a provision therefor in decedent’s will. The plaintiff, not having elected to accept the legacy, was entitled to enforce a claim for the reasonable value of the services rendered by her. Schmetzer v. Broegler, supra.

Appellant further contends that there was no evidence of the reasonable value of plaintiff’s services. There was testimony that the plaintiff was paid $1 an hour by others for work similar to that performed for the decedent; further, that she had been paid $5 a day for the same type of work. This testimony, with the inferences that could be drawn therefrom, was sufficient to establish the value of the services.

Appellant’s final contention is that the court erred in refusing to admit into evidence 12 prior wills of decedent. We do not have the wills before us, and defendant made no specific offer to the trial court of the contents of the prior wills. We cannot speculate as to what the wills would have disclosed. See Buie 3 :43-2.

Judgment affirmed.


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

text:
    ALEXANDER MADDI, PLAINTIFF-APPELLANT, v. CHARLES LINDBERG, Jr., VICTOR H. LINDBERG, THOS. A. DEMING CO., INC., AND ESTILL M. ANDERSON; DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 12, 1951 —
    Decided March 20, 1951.

      Before Judges Jacobs, Eastwood and Bigelow

      Mr. Vincent T. Dee argued the cause for the appellant.

      Mr. Louis Adler argued the cause for the respondents Charles Lindberg, Jr., and Victor H. Lindberg (Messrs. Adler & Adler, attorneys; Mr. Alfred Brenner, on the brief).

      Mr. Wilbur A. Stevens argued the cause for the respondents Thos. A. Leming Co., Inc., and Estill M. Anderson (Mr. Jam.es N. Marinello, on the brief).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

On September 30, 1948, the plaintiff Alexander Maddi was a passenger in a Dodge coupe owned by the defendant Charles Lindberg, Jr., and driven by the defendant Victor II. Lindberg. It was raining “and the pavement was slippery as can be.” The coupe was traveling at the rate of 35 miles per hour as it approached the Hackensack Kiver Bridge on the lane used by vehicles heading east. Its speed was then increased to 40 miles per hour, apparently in order to pass a truck, and at that point it skidded along slippery trolley tracks and “spun around” in the opposite lane used by vehicles heading west. At that time the Autocar truck owned by the defendant Thos. A. Denting Oo. and driven by the defendant Estill M. Anderson was observed by the plaintiff about 100 feet away traveling west about 35 or 40 miles per hour. Immediately thereafter the Autocar truck struck the coupe, severely damaging it and causing injury to the plaintiff.

The foregoing circumstances appear from the plaintiff’s testimony and the legitimate inferences which may be drawn therefrom in his favor. Dobrow v. Hertz, 125 N. J. L. 347 (E. & A. 1940). At the close of his case the defendants moved for dismissal which was granted by the lower court on the ground that there was no evidence of negligence on the part of the defendants. The plaintiff’s appeal is from the ensuing judgment of dismissal and we consider that it is well taken. The evidence that the coupe was being driven negligently seems ample. A jury could readily find that, in view of the prevailing conditions, Victor II. Lindberg’s conduct in driving the coupe at 40 miles per hour along or by the wet trolley tracks was not that of the ordinary prudent man. It could likewise find that his negligent conduct resulted in placing the coupe in its dangerous location along the west lane of 1 raffle and contributed directly to the accident and injury. Vadurro v. Yellow Cab Co. of Camden, 8 N. J. Super. 208 (App. Dir. 1950) ; affirmed, 6 N. J. 102 (1950).

While the testimony as to the Autocar truck was not as persuasive as that referable to the coupe, we are nonetheless satisfied that it was legally sufficient to withstand the motion for dismissal. Accepting the plaintiff’s testimony and the inferences therefrom, the Autocar truck was being driven at a high rate of speed despite the adverse condition of the road, and although it was 100 feet away when the coupe first appeared on the west lane it was not brought to a stop within time and struck with sufficient force to cause extensive damage. A jury could properly find that the Autocar truck was being driven -without due care and its negligent operation was a contributing cause of the accident and injury. Under the controlling authorities in our State the comparative Culpability of the drivers is of no concern; where, as here, there-was evidence that the negligence of both drivers proximately contributed in some degree to the accident and injury, dismissal as to any of the defendants in advance of the presentation of their respective defenses was improper. See Daniel v. Gielty Trucking Co., 116 N. J. L. 172, 173 (E. & A. 1936); Yanas v. Hogan, 133 N. J. L. 188, 190 (Sup. Ct. 1945).

The judgment is reversed with costs to abide the event of a new trial.


author: Fkafcis, J. C. C.

text:
    LESTER E. MAHR, AS ADMINISTRATOR OF THE ESTATE OF ANNA MARIE MAYER, DECEASED, PLAINTIFF, v. STATE OF NEW JERSEY AND TOWNSHIP OF CEDAR GROVE, IN THE COUNTY OF ESSEX, A MUNICIPALITY OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided January 30, 1951.

      Mr. Lester E. Mohr, pro se.

      Mr. Fred Q. Siiclcel, III, for defendant Township of Cedar Grove.

      Mr. Theodore D. Parsons, Attorney-General (Mr. Osie M. Silber, Deputy Attorney-General), for defendant State of New Jersey.
   Fkafcis, J. C. C.

(temporarily J. S. C.). This matter is before the court on an interpleader complaint. There is no dispute as to the facts and the parties have submitted the problems involved to the court for determination.

The plaintiff, as administrator of the estate of Anna Marie Majrer, deceased, filed his account in the Essex County Court. An order of approval thereof was entered which, among other things; directed that the balance remaining in the hands of said accountant, which now amounts to $3,379.75, be. disposed of according to law.

The parties concede that since his appointment and down to the present time, the administrator has made diligent and adequate search for heirs or next of kin of the decedent, and that none has been found; further, that the Township of Cedar Grove, where the decedent lived and worked for many years in the Essex County Overbrook Hospital, knows of no heirs or next of kin; and that the decedent’s marriage was annulled in this State.

In view of the fact that there are no known heirs or kindred capable of inheriting the residue of the estate, the administrator was subjected to two demands therefor, one by the State of New Jersey under the Escheat Act (B. 8. 2:53-16) and the other by the Township of Cedar Grove under B. 8. 3 :5-9, the act governing the distribution of personal property.

' In ihe face of these conflicting claims, the administrator filed his interpleader complaint asking the court to determine the merits of the respective claims and designate which of the two claimants is entitled to receive the fund.

Cedar Grove argues that interpleader will not lie here because the State has not prosecuted the proceedings in the Chancery Division of the Superior Court as prescribed by sections 21, 22, 23, and 24 of the Escheat Act, and obtained a judgment “declaring that the property described * * * has escheated to the State.” (Sec. 22.) The contention is that, since section 23 provides that upon the filing of such judgment the “person having such property in their possession shall forthwith deliver the same to the Treasurer of the State of New Jersey,” the right of the State, if any, is inchoate and not such as would permit either recognition thereof in this proceeding ór a judgment that the State is entitled to the fund.

In the sections already adverted to, the Escheat Act ordains the procedure to be followed by the State in order to establish its claim. It appears that a petition (complaint) shall be filed in the Chancery Division of the Superior Court setting out that certain personal property has escheated to the State and that the defendant named has custody or possession of such personal property. The complaint in this type case should set forih that the “owner of such personal property has died intestate without heirs or known kindred capable of inheriting the same and without leaving a surviving spouse.” (Sec. 21.) And the complaint shall ask the court to enter a judgment escheating the property to the State.

After the filing of the petition (complaint), the person having possession of the property may be required by court order to furnish to the Attorney General or to his deputy appointed to prosecute the action, all information he has with relation to the last known address of any person having any interest in the personal property.

Upon the filing of the complaint, the court is required to make an order requiring the defendant to answer within a fixed time. This order must contain “such other directions as the court may deem appropriate for the speedy determination of the cause, the protection of the property, or for the disclosure of information pertinent to the prosecution of the cause.” When an answer is filed, the court is directed to fix a time and place for hearing.

Thereafter, a notice “containing a summary of the order designating the time and place of hearing, as approved by the court, shall be published in a manner directed by the court and shall also be published once a week for three successive weeks in a newspaper of general circulation designated by the court; * * *. Such notice shall direct that any person who may claim to be entitled to the personal property mentioned in the petition (complaint), or to any part thereof or interest therein, shall file with the court his claim in writing at least five days prior to the date fixed in the hearing.”

It is further provided that:

“Any person claiming to be entitled to the personal property described in the petition (complaint), or to any part thereof, or to any interest therein, shall file his claim in the general form of an answer to the petition (complaint), which answer shall set forth in such detail as the court may require why the answering party contends that the property mentioned in the petition (complaint) should not escheat to the State and, if the answering party shall claim any right to or interest in said property, the nature thereof; and the court shall at the time of hearing take such evidence as may be proper, and proceed to determine the cause and enter such final decree (judgment) as shall be equitable and just and in conformity with the provisions of this act. Such decree (judgment) may determine the title to such personal property, and where the court shall find that such personal property, in whole or in part, has escheated to the State the decree (judgment) shall so declare, and such personal property, or so much of it as the court shall decree (adjudge), shall thereupon escheat to the State.” (Sec. 22.)

The State has not pursued the steps required by this statute to perfect the claim. It has obtained no judgment “declaring that the property has escheated to the State.” Consequently, it is impossible in this action to enter a judgment directing the administrator to pay the fund to the State Treasurer.

The State contends that we are concerned here only with the question of the existence of the right of escheat and not with the method of enforcing the right. This is too narrow a view of the issue. For example, it is conceivable that in escheat proceedings properly instituted next of kin may appear following the required publication. In this event, the State would not obtain judgment. ÜSTon-kindred claimants may file answers and their interests may be paramount to those of the State. In these instances, manifestly a judgment at this time in the interpleader action would not be res ad judicata of the right to the fund.

Actually, what the court is being asked to decide is that, assuming no claimants appear in the escheat proceedings whose rights are paramount, the State will be entitled to the fund. Our jurisdiction in interpleader actions cannot be invoked on any such hypothetical basis. Therefore, no judgment can or will be entered directing payment to the State. The matter of its claim should be prosecuted in the manner prescribed, by the statute. (19 Am. Jur., § 37, p. 403.)

There remains for disposition the claim of the defendant Cedar Grove. A much more expeditious and effective method of presenting this entire matter would have been for the State to have filed a complaint seeking judgment under the Escheat Act. In such a proceeding, Cedar Grove could have filed an answer claiming the fund and then it would have been possible for the court to enter a judgment finally disposing of the entire matter.

However, since all of the parties seem desirous of having the basic problem resulting from the claim by Cedar Grove determined, this will be done.

As already indicated, Cedar Grove contends that it has a prior right to the fund because of R. 8. 3:5-9, which provides as follows;

“If the intestate leaves no husband or widow and no known kindred or relatives, the administrator of the estate shall, at the expiration of one year after the intestate’s death, put the surplus thereof, after payment of debts and necessary expenses, out at interest and pay the net interest or income thereof annually in the manner following: (a) If the intestate had a legal residence in any municipality such interest shall be paid to the treasurer thereof to and for the use of its poor; (b) If the intestate was a nonresident such interest shall be paid to the treasurer of the municipality in which the intestate died to and for the use of the poor thereof.”

This act provides also that if no person legally entitled to such surplus shall make application therefor within seven years after the intestate’s death, such person shall be barred thereafter and the administrator shall then pay the surplus to the treasurer of the municipality which is receiving the income. {See. 10.)

The State contends that this enactment was impliedly-repealed by R. 8. 2 :53 — 15 et seq., under which it asserts a right to the fund. R. 8. 2:53-16 provides:

“If any person, who, at the time of his death, has been or shall have been, the owner of any personal property within this State, and shall have died, or shall die intestate, without heirs or known kindred, capable of inheriting the same, and without leaving a surviving spouse, such personal property, of whatsoever nature the same may be, shall escheat to the State.”

The legislation Cedar Grove stands on was enacted in 1898 (L. 1898, c. 234) and made part of the act relating to the distribution of personal property (R. 8. 3 :5-l et seq.). Apparently it had been section 9 of the 1877 revision of the Distribution Act but had been repealed. (See notes following R. 8. 3 :5-9, N. J. 8. A., p. 231.)

Kew Jersey had no general Escheat Act until 1946 (L. 19-40, c. 155, p. 713, as amended L. 1947, c. 357, p. 1157). When adopted, it contained no express repealer of li. 8. 3 :o — 9, 10 and 11. 'However, the State says that since the Legislature in 19-16 was dealing with the precise subject covered by B. 8. 3:5-9 el seq., an implied repeal follows. Cedar Grove, on'the other hand, argues that the statutes are not repugnant; they are in pari materia and effect should be given to both. Specifically its position is that since the Escheat Act speaks generally of a person who dies intestate with no heirs or known kindred capable of inheriting, while the Distribution Act deals particularly with cases of intestacy whore the personal property is found in the hands of an administrator, the particular legislation, i. e., the Distribution Act, should be regarded as an exception to the general legislation, i. e., the Escheat Act. So the, suggestion is that the Escheat Act “applies to all personal property of decedents who die intestate except where the property is found to be in the bauds of a duly appointed administrator, in which case the Distribution Act controls and the municipality takes.”

Kepeal of existing legislation by implication is not favored. (50 Am. Jur., § 538 — Statutes.) The question is one of legislative intention and the law has established a presumption against such repeal. French v. Board of Com’rs. of Ocean City, 136 N. J. L. 57 (Sup. Ct. 1947). However, where the intention to effectuate a repeal is clear and compelling; where there is a clear repugnancy between the two acts, or a manifest intention to cover the same subject matter by way of revision (Fisher v. Brehm, 100 N. J. L. 341 (E. & A. 1921)); or where, considering the specific provision in relation to the general object of a statute, the purpose to repeal prior legislation is revealed, it is the judicial function to effectuate it. Keiderling v. Mayor of Plainfield, 118 N. J. L. 498 (Sup. Ct. 1937). And an intention to repeal statutory provisions may be inferred from radical changes in the existing law. This is because “Laws are presumed to be passed with deliberation and with full knowledge by the Legislature of the existing law upon the subject.” In re Gopsill, 77 N. J. Eq. 215 (Prerog. 1910); Eckert v. N. J. State Highway Dept., 1 N. J. 474 (1949).

In State ex rel. The Board of Health v. Borough of Vineland, 72 N. J. Eq. 289 (Ch. 1906); affirmed, 72 N. J. Eq. 862 (E. & A. 1907), Vice-Chancellor Learning reviewed a number of prominent cases and set forth the doctrine as follows:

“The principle upon which subsequent legislation will operate to repeal prior legislation without an express repealing clause has been frequently considered by the courts of this State and is well defined. Where there are two acts on the same subject, the rule is to give effect to both, if possible. If the two acts are repugnant in any of their provisions, the later act operates to repeal the earlier to the extent of the repugnancy. Where two acts are not in express terms repugnant, if the later act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a .substitute for the earlier act, it will operate as a repeal of that act.”

Applying the tests recited to the dispute here, it is plain ■that the Legislature, in enacting the Escheat Act, intended to efface the sections of the Distribution Act relied upon by the defendant township.

Concededly the State had no general escheat law relating to -tangible and intangible personal property prior to 1946. In "that year, the lawmakers undertook to deal with the whole -problem of. escheat of such property, both as to the conditions which would bring about acquisition thereof by the State- and ¡as to the manner and means of accomplishing the acquisition. 'It must be assumed that the Legislature was aware at the time -.that revenue provided by interest on funds of an intestate after ¡administration, as well as by the unclaimed funds themselves, ¡after seven years, was going to the various municipalities. And the act adopted leaves no room for doubt that the intention was to pre-empt this revenue for the State.

It must be noted that the definition of personal property set forth in the Escheat Act is broad enough to include every conceivable kind of tangible and intangible personal property. However, specifically excluded are personal property “in the custody of any court in this State” and “any personal property .covered by Chapter 199 of the Laws of 1945.”

Chapter 199 of the Laws of 1945 relates to the escheat of unclaimed bank deposits. (B. 8. 17:9-18 to 26.) “Personal property in the custody of any court in this State” cannot be ■deemed to include funds in the hands of an administrator under the circumstances of this case. The administrator holds the funds here only for the purpose of distribution according to law, which means to the State or to Cedar Grove, depending upon Die determination of the vital question of implied repeal now presented and the obtaining by the State of a judgment in an escheat proceeding.

On fundamental principles of statutory construction, these two express exclusions demonstrate an intention to include oscheatable personal property in all other classes of cases. Exprcssio unius esl exclusio allerius.

Furthermore, the Legislature dealt with the personal properly of an intestate in a separate and distinct section (sec. 16). In this section, the 14-year period, the elapse of which must precede escheat under section 17, in cases other than intestacy, was eliminated. Such elimination manifests an intention not to require a waiting period of: 14 years before personalty of an intestate would escheat. And the declaration of escheat was expressly made applicable to “any personal property within this State” of an intestate owner. Thus there is present inescapable evidence that the Legislature intended to deal gen•erallv and fully with escheat in cases of intestacy and to exclude any existing form of disposition of such property.

The exception suggested by the township is not a reasonable one. As a practical matter, administration of an intestate’s estate would be expected in the great majority of cases where property of any value is found at the time of death. To hold that escheat arises only whore no administrator is appointed, would mean recovery by the State in rare instances. Such a rule would permit the obvious intent of the Legislature to be subverted and it might well produce unseemly competition between the municipality and the State, the one racing to .secure the appointment of an administrator and the other to institute escheat proceedings.

The only reasonable and feasible conclusion from all these considerations is that R. S. 2:53 — 15 through 32, representing the later expression of the legislative will and being plainly repugnant to B. S. 3 :o-9, 10 and 11, operate as an implied repealer thereof.

Consequently, the Township of Cedar Grove has no claim to the funds in the hands of the administrator.

The further contention has been made by the township that the Escheat Act is unconstitutional for lack of due process and because its title is defective.

, [10] The due process contention has been disposed of by the Supreme Court in State v. Standard Oil Co., 5 N. J. 281 (1950).

With respect to the title of the act, the claim is that it violates Article IV, Section VII, paragraph 4, of the 1947 Constitution, which requires that “every law shall embrace but one object, and that [object] shall be expressed in the title.” The title says: “An Act providing for the escheat of certain unclaimed personal property.” It is argued that “unclaimed property” connotes that there is an owner or person entitled to demand possession thereof, while in the case of intestacy with no known kindred, it is contemplated that there is no one in existence to assert a claim. Therefore, this defendant urges that the use of the word “unclaimed” covers only the object of the act which is set forth in section 17, namely, the escheat of personalty which has been unclaimed for 14 years. However, such a construction of the title is too constricted. Personalty in the possession of an administrator is just as unclaimed where kindred of the decedent are unknown, as it is in instances where the owner or person entitled to possession thereof has not been heard. from for 14 years and no one knows whether or not he is living.

The title of an act need not include all the distinct provisions nor serve as air index or digest; it is merely a label which will be broadly and liberally construed in order to validate the legislation “if such a course be at all reasonably practical.” The courts “do hot indulge in hypercritieism” and the title will be sufficient if it expresses its object in a general way so as to be intelligible to the ordinary reader. (Joyce v. Price, 123 N. J. L. 171 (Sup. Ct. 1939)). Applying this rule, the word “unclaimed,” associated as it is with “escheat” in the tiile, sufficiently describes the purpose of the act.

Under all the circumstances, the complaint herein will be dismissed because: (1) the Township of Cedar Grove is not entitled to the fund in the hands of the administrator, or any interest thereon, sin'ce 11. S. 3 :5-9 et seq. were impliedly repealed by the Escheat Act; and (2) the State of New Jersey has not obtained a judgment escheating the fund to it under R. S. 2 :53-16 et seq.


author: Gbimshaw, J. S. C.

text:
    RUTH I. GERHARD, PLAINTIFF, v. HARRY C. FICHTER AND WILLIAM W. ADAMS, INC., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided March 15, 1951.

      Mr. Milion T. Lasher, attorney for plaintiff.

      Messrs. Smith, James ■& Mathias, attorneys for defendant I-Iarry C. Fichter.

      Mr. Abram A. Lebson, attorney for defendant William W. Adams, Inc.
   Gbimshaw, J. S. C.

Plaintiff is the owner of lot 12B in Block 181 on the assessment map of the Borough of Tenafiy. Defendant Fichter is the owner of lot 11 in the same block. Defendant’s lot adjoins that of plaintiff on the west. Both lots were owned by the General Electric Realty Corporation. On lot 12B, on September 20, 1932, there was and still is a frame dwelling. Lot 11 was vacant land. The land sloped sharply from lot 12B across lot 11 in a westerly direction.

On September 20, 1932, General Electric Realty Corporation conveyed lot 12B to the plaintiff. And on September 3, 1940, the General Electric Realty Corporation conveyed the vacant lot 11 to one Benjamin. Fichter acquired title to lot 11 on October 18, 1949. At that time the lot was still vacant. Fichter immediately proceeded to level the surface of his land preparatory to the erection of a house. Because of the contour of the property the levelling operation created a 10-foot excavation, which, at the top, was 6 inches from the Gerhard line and at the bottom was about 11 feet from the line.

Plaintiff became alarmed for the safety of her property. She protested personally and through counsel. Eventually this suit was commenced.

Upon receipt of plaintiff’s protest, Fichter erected a wall ■composed of stones and some boulders, without cement, referred to as a rip-rap wall. This wall is four feet thick at its base and three feet thick at the top. It is topped by a bank of dirt which slopes up easterly to the property line at a grade varying from 2.87 to 1 to 1.59 to 1. The surface of the bank •of dirt is covered with grass and bushes. At the top there is embedded in the bank a cedar board, referred to as a batter board. A similar board is placed half-way down the slope. These boards divert surface waters.

Plaintiff says that her land, with the house on it, is entitled to receive lateral support from the land of the defendant Richter. She says further that the protection afforded her property is inadequate and she seeks an injunction compelling the defendant to provide proper lateral support for her land.

As set forth in the pretrial order, ihe issues are as follows:

“1. a. Whether or not as a result of the action of the defendants the plaintiff’s land has been deprived of the lateral support to which it is entitled.
“b. If it be determined the defendants have in fact by their actions removed the support to which the land is entitled, what relief & •damages, if any, should be allowed as a result of such removal.”

There was a third issue which need not concern us since the complaint against the defendant William W. Adams, Inc., was dismissed.

I am in agreement with the proposition that the plaintiff's land with the house on it is entitled to lateral support from the defendant’s property. And I also agree that when defendant removed the natural lateral support of plaintiff’s land he was under a duty to supply adequate artificial support at his own expense. Manning v. N. J. Short Line R. R. Co., 80 N. J. L. 349 (E. & A. 1910). I am unable to agree, however, that the artificial support provided by the defendant’s wall and bank is insufficient. The preponderance of the evidence is to the contrary. Two experts called by the defendant were emphatic in expressing the opinion that the wall and bank were more than adequate to protect plaintiff’s property. One of them stated that a slope of 1 -to-1 would be safe in view of the character of the soil. And they agreed that .a slope of 1.5-to-l was safe. To this they added the opinion that a collapse of the wall was not likely to occur. Even the plaintiff’s expert who expressed doubts as to the sufficiency of the support, testified that a slope of 1.5-to-l was safe. As already indicated, the slope in question varied between 2.87-to-l and 1.59-to-l.

In all of the cases cited by the plaintiff in support of her contentions, there was proof of present or threatened damage to property. In most of the cases the action liable to result in a removal of lateral support was in progress. Those cases are not helpful in this situation. The proof here is that the artificial lateral support has been in existence for upwards of a year. There is no further excavating in contemplation. There is no evidence of present damage to the property of the plaintiff nor is there satisfactory proof that damage is threatened.

In my opinion the plaintiff has failed to present facts sufficient to justify interference by the court. There will be judgment for the defendant.


author: Stantost, J. S. C.

text:
    RUFE J. HARDY, ET AL., PLAINTIFFS, v. MERRITT J. JOHNSON, ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided March 17, 1951.

      Mr. Vilo A. Concilio, attorney for the plaintiffs.

      Mr. Bholem Lipis, attorney for the defendants.
   Stantost, J. S. C.

This is an action for the specific performance of a contract for the sale of unimproved lands. Defendants refused to take'title on the ground that plaintiffs did not have a marketable title, and counterclaimed for the return of the deposit made on the contract and the expense of examining title. The ease has been submitted on a stipulation of facts and written argument.

The sole issue in the pretrial order is whether or not there was an extinguishment -of the tax lien which was acquired by Isaac R. Halliday, and his wife. Halliday acquired under the will of his mother, who died on December 27, 1925, seized of an undivided one-fourth interest in the premises, an estate in remainder in an undivided one-twelfth part thereof; such estate being subject to the life estate of his sister, Caroline E. Bailey. On September 17, 1928, the lands in question were sold for taxes to one Harold Estler who, on December 11, 1928, assigned the tax sale certificate to Halliday. All municipal liens subsequent to the said tax sale have been paid. On December 6, 1940, notice to redeem was sent by registered mail to all persons having an interest in said lands; in the written notice by Halliday it was stated that there was due on the tax sale certificate as of December 2, 1940, the sum of $130.79, and the further sum .of $681.91 which was the amount of taxes with interest thereon paid by him for the years 1927 to 1940 inclusive; and it was further stated that if the said lands were not redeemed within 90 days, Halliday would file a bill of complaint in the Court of Chancery to foreclose the addressees’ right of redemption. On May 13, 1941, Halliday instituted a foreclosure suit in the Court of Chancery against all persons having an interest in the premises. The defendants therein were duly served but none appeared or answered and final decree was entered on January 23, 1942.

In Roll v. Everett, 73 N. J. Eq. 697 (E. & A. 1908), a bill was filed for partition and the defense was that complainants’ interest in the premises had been cut off by defendants’ acquisition of-a paramount title under a tax deed. At page 701, the court stated:

“The law is well settled that where one tenant in common acquires a tax title or redeems land from a tax sale, his act inures to the benefit of his co-tenant upon their reimbursing him for their proportionate share of the amount paid by him. The principle is in some of the cases put upon the ground of a confidential relationship between the tenants in common. 1 Lead. Gas. Eq. {Ath Am. ed.) 68. Other cases rest the doctrine upon the principle that one cannot be allowed to acquire a right by his own default. This principle would be violated if a tenant in common who is equally obligated to pay all the taxes upon the joint property, were allowed to acquire rights superior to his co-tenant by defaulting in his obligation, and forcing the public authorities to take proceedings for the collection of the tax. Other cases seem to rest the doctrine upon the view that one who has title to land cannot acquire a superior title by means of a tax deed. In the view of these eases, the acquisition of the tax title amounts to nothing more than a redemption of the purchaser’s own land from a lien.”

And speaking of the right acquired by a co-tenant under a tax lien or tax deed, the court said further on page 702:

“The right of a tenant in common who discharges a lien upon the common property, is to contribution from his co-tenant, and as security he is entitled to a lien upon his co-tenant’s share of the property. That lien may be enforced in equity by treating the tax deed as valid and subsisting for that purpose.”

The court concluded that a decree should be entered for partition with the provision that the defendants have a lien upon the complainants’ share for the proportionate part of the tax upon the property in question paid by the defendants or their predecessors in title, with interest from the date of payment. See annotation in 54 A. L. R., at page 896.

It would appear, therefore, that Halliday upon the purchase of the tax certificate acquired merely a right to contribution from his co-tenants, with the tax lien as security.

Defendants contend that llalliday’s remedy as against his co-tenants under the rule in Roll v. Everett, supra, was to seek a partition of the property with the credit to him by way of lien on the shares of his co-tenants for the moneys expended by .him for the purchase of the tax certificate and the taxes paid subsequent thereto, together with interest on both expenditures.

Plaintiffs concede that ITalliday’s co-tenants had a right to participation in the benefits he acquired by purchasing the tax certificate, but say that their failure to offer to contribute within a reasonable time will be deemed to be a waiver of such right and an election to allow him to take the benefits of his outlay. It is noted, however, that Halliday did not call upon them for the payment of their proportionate share of his expenditure. Iiis notice to each of the numerous co-tenants was for redemption. Plaintiffs’ contention that Halliday’s co-tenants lost their interest in the premises through his tax foreclosure proceeding raises serious and doubtful questions of law and fact which cannot conclusively be determined in this proceeding..

A title is not marketable where there is serious and substantial doubt concerning either the facts or the law upon which title is founded. That is the situation here. Courts of equity have at times declined to compel a purchaser to accept title which, though questionable, the court believed to be good, on the ground that its conclusion would not be binding upon persons who are not parties to the immediate action. Dobbs v. Norcross, 24 N. J. Eq. 327 (Ch. 1874); Breitman v. Jaehnal, 99 N. J. Eq. 243 (Ch. 1926); affirmed, 100 N. J. Eq: 559: Webster-Art & Strength Building & Loan Association v. Armondo, 128 N. J. Eq. 219 (Ch. 1940); Caparell v. Goodbody, 132 N. J. Eq. 559 (Ch. 1942).

Judgment may be entered for defendants, and in accordance with the stipulation made at the pretrial conference it shall include damages in the sum of $600 on the counterclaim.