author: Pebskie, J.

text:
    WEST JERSEY TRUST COMPANY, TRUSTEE, PLAINTIFF, v. OSCAR V. BIGHAM AND MARY V. BIGHAM, DEFENDANTS.
    Decided September 24, 1936.
    Before Justice Pekskie, in chambers, pursuant to statute.
    Por the plaintiff, Charles A. Cogan (Louis B. LeDuc, of counsel).'
    Por the defendants, Bourgeois & Coulomb (William B. Hunter, of counsel).
   Pebskie, J.

The question requiring decision in this cause is whether a deficiency judgment entered as a result of a confirmed sale of the mortgaged premises, in foreclosure, for $100, can stand after said sale is set aside by the Court of Chancery, and in pursuance of such order complainant elects to, and does, in fact, effect a re-sale of said premises.

The stipulated facts, giving rise to this query, disclose that, in the foreclosure proceedings defendants here were defendants, and plaintiff was the complainant; that defendants were the owners of certain premises in Ocean City, New Jersey, which were subject to a mortgage of $5,000 held by plaintiff. A bill to foreclose this mortgage was filed in the Court of Chancery. Under the foreclosure proceedings the premises were sold at sheriff’s sale on December 13th, 1933, and were purchased by a holding company for complainant for $100. On December 22d, 1933, the sale was confirmed. On January 17th, 1934, the deficiency resulting from that sale was, in a bond and warrant proceeding, reduced to a judgment of $5,548 and costs. Thereafter, on July 18tli, 1934, defendants petitioned the Court of Chancery, inter alia, that the prior order of the court confirming the sale of the premises for $100 be vacated, and that the “fair market” value of said mortgaged premises be determined, and that complainant be compelled to credit the fair market value of said premises upon the amount of the deficiency judgment entered, as aforesaid, against them.

Pursuant to the prayer of the petition the Court of Chancery did, on July 26th, 1934, refer the determination of the “fair market” value of the premises to one of the masters of that court. The latter reported that in his opinion the premises had a fair market value of $5,600.

On March 6th, 1935, the Court of Chancery confirmed the master’s report and ordered that:

“* * * said sheriff’s sale, be and the same is hereby vacated; and that the said mortgaged premises be resold by the sheriff of Cape May county, unless the complainant evince its willingness to credit the fair actual value of said mortgaged premises as determined herein by the court, upon the payment of its deficiency judgment obtained in the New Jersey Supreme Court against defendant petitioners * *

Under the last stated order complainant elected to, and did, in fact, on June 17th, 1935, re-sell the premises. Again complainant’s holding company was the purchaser, but this time the price was $4,500. This sale was subsequently confirmed. The original deficiency judgment based on the first sale remaining unsatisfied defendants, on June 12th, 1936, petitioned this court that the judgment of January 17th, 1934, “be vacated, canceled of record,” &c.

Por defendants it is argued, in substance, that since a deficiency judgment against obligors on a bond secured by a mortgage can only be entered in a proceeding after sale of the mortgaged premises (Pamph. L. 1933, ch. 82, p. 172), i. e., if suit be brought within three months of the confirmation date of the sale (Wootton. v. Pollock (Court of Errors and Appeals, 1935), 119 N. J. Eq. 128; 181 Atl. Rep. 172), and since the sale determines the deficiency (Berman v. One Hundred Forty-five Belmont Ave. Corp., 109 N. J. Eq. 256, 261; 156 Atl. Rep. 830; affirmed, 112 N. J. Eq. 171; 163 Atl. Rep. 893), that, therefore, when the court set aside the first sale it removed the very foundation upon which the deficiency was made to rest; and that when the foundation for the judgment was non-existent the judgment itself has no right to exist. It is further argued that this is particularly so when, as here, complainant elected to, and did, in fact, pursuant to the order setting aside the sale, effect a re-sale of the premises.

Por the plaintiff it is argued, in substance, that the deficiency judgment is not a void judgment but merely a voidable judgment; that a proceeding, as here, to vacate a voidable judgment, for matters dehors the record, is addressed to the sound discretion of the court, and invokes equitable principles; that it would be unjust, oppressive and inequitable (LaBell v. Quasdorf, 116 N. J. L. 368; 184 Atl. Rep. 750) to grant the relief sought for by so doing defendants would receive what they are not entitled to, namely, a release from their obligation to pay the deficiency due on their bond; and that, at all events, defendants are barred by their laches.

Eo allegation of fraud, misconduct or collusion is made to appear (Cf. Barton v. Harker, 69 N. J. L. 603; 55 Atl. Rep. 105), nor was the judgment prematurely (34 C. J. 294), or illegally entered. Westfield Trust Co. v. Court of Common Pleas, 115 N. J. L. 86; 178 Atl. Rep. 546; affirmed, 116 N. J. L. 190; 183 Atl. Rep. 165.

It is true that in the case of Wootton v. Pollock, supra, our Court of Errors and Appeals, opinion by Mr. Justice Donges, held (at p. 132) :

“Upon sound reasoning, it would appear that there was no sale until the Court of Chancery judicially determined, by virtue of the requirement of the statute, that the sale was valid and effectual. Vanderbilt v. Brunton Piano Co., 111 N. J. L. 596. If the sale had not been confirmed, the amount of deficiency, if any, was not determined, and appellant’s right to have a judgment or decree for such undetermined deficiency was non-existent. We conclude that a sale, under the statute in question, is not complete until after confirmation, and that the bill in this case was filed within time.”

And it is also true that in the case at bar the Court of Chancery had confirmed the sale of the premises for $100, and, therefore, this court at the time of the entry of the judgment had jurisdiction of the subject-matter and of the parties. Ritter v. Kunkle, 39 N. J. L. 259; Dorman v. Usbe Building and Loan Association, 115 Id. 337, 342; 180 Atl. Rep. 413.

But whether the judgment is void or voidable does not, under the proofs here exhibited, seem to me to be of any consequence; in either event, I reach the same result. The decree confirming the first sale of the premises was vacated. And that order, so far as it is made to appear, remains unchallenged. Thus the necessary statutory prerequisite of a sale of the mortgaged premises prior to the entry of the deficiency judgment was made non-existent, and, therefore, it logically, rightly and legally follows that plaintiff’s right to a judgment for the then undetermined deficiency also was nonexistent. Wootton v. Pollock, supra.

As already stated plaintiff concedes that the judgment is voidable, and, on that promise, argues that equitable principles are invoked; that the granting or refusal of the application is addressed to the sound discretion of the court. On the argument counsel for the plaintiff stated (although no such statement is contained in the stipulation of facts) that defendants are entitled to receive a credit on the judgment for the amount realized on the re-sale of the premises but are not entitled to a cancellation thereof. It is stoutly argued that it is inequitable to release defendants, especially so after their delay in making this application, from their obligation to pay the deficiency due on their bond. This is not so. The entry of a deficiency judgment is regulated by statute. These statutory provisions must be strictly observed. Plaintiff’s right to a deficiency judgment against defendants on their bond came again into being when the Court of Chancery confirmed the re-sale of the premises. Plaintiff did not choose, or see fit, to exercise that right. It surely trenches upon no equitable principle—in favor of plaintiff—-to deny its claim merely because it permitted the statutory period within which it could have instituted suit against defendants to expire. Plaintiff alone should suffer the consequences.

The rule to show cause is made absolute, with costs.


source: Caselaw Access Project

author: Bodine, J.

license: Public Domain

text:
    JOHN H. PAYNE, PROSECUTOR, v. BOROUGH OF SEA BRIGHT, A MUNICIPAL CORPORATION, AND WALTER G. SWEENEY, BOROUGH RECORDER OF THE BOROUGH OF SEA BRIGHT, DEFENDANTS.
    Submitted January term, 1936
    Decided May 26, 1936.
    Before Justices Pakkek, Case and Bodine.

      For the prosecutor, Kremer & Proctor.

    For the defendants, Edward W. Wise.

   Bodine, J.

This is a rule to show cause why a writ of certiorari should not issue to review (a) the zoning ordinance of the borough of Sea Bright, and (b) the conviction of the prosecutor in the Recorder’s Court on a complaint of violating that ordinance by undertaking to erect a building for restaurant purposes in a district zoned as residential.

The first phase may be disposed of in a few words. The law is thoroughly settled that an ordinance will not be set aside on certiorari as unreasonable unless it is unreasonable in toio, and that attack on any part of it involving a penalty for disobedience must await a conviction thereunder. Neumann v. Hoboken, 82 N. J. L. 275; 82 Atl. Rep. 511, and cases cited. (N. B. also later cases citing it.) It is not suggested that this ordinance is unreasonable except as to a section of territory including prosecutor’s property. In this aspect the rule must be discharged.

As to phase (b) the ordinance, as customary with ordinances of this class, contemplates application in the first instance to the building inspector, with submission of plans, and appeal by an aggrieved party to the board of adjustment, providing for the procedure in such case. But the present prosecutor admits that he made no such application, but commenced to build, and was stopped by the chief of police who said he would have to get a permit. He says he “showed the plans” to the building inspector and the mayor, and appeared before the board, who told him he would have to notify the property owners within five hundred feet, as required by section 17 (f) of the ordinance. He did not do this, but went on with the work and was then arrested and convicted.

If that conviction had been under the building code for building without a permit, prosecutor would clearly have been out of court. But the complaint makes no such charge. It rests on erection of a business building in a residential zone. In such cases the procedure is well settled. The orderly steps axe to file the application and plans, meet with a refusal of permit because of the zoning ordinance, appeal to the board of adjustment, and in case of their refusal to applyx for certiorari to review it; after which, in case the finding of the board is set aside, mandamus will lie to compel the issue of a permit. Dorsey Motors v. Davis, 13 N. J. Mis. R. 620, 621; 180 Atl. Rep. 396, and cases cited, particularly Chancellor Development Corp. v. Board Adjustment, City of Newark, 3 N. J. Mis. R. 1231; 131 Atl. Rep. 116. That is the orderly method of settling the reasonableness vel non of a zoning ordinance in a particular case, and needless to say, it was not followed here. Assuming though not admitting, that in the absence of any ordinance requiring preliminary application and submission of plans, an owner could take his chances with a zoning ordinance containing no such provisions and question the reasonableness of the zoning after conviction, no such situation obtains in this case, but on the contrary we have an owner plainly in default as to procedure asking in advance of any application under the zoning ordinance or otherwise, for an adjudication that if he should apply, the zoning provisions would not stand in his way.

It is suggested that the board of adjustment “did not fix any date for hearing.” The facts above set forth show that there was nothing legally before the board.

We see no merit whatever in phase (b) and the rule to show cause will, therefore, be discharged, with costs.


author: Pee Cukiam.

text:
    DOVER BOILER WORKS, RESPONDENT-PROSECUTOR, v. CARRIE PAYNTER, PETITIONER-RESPONDENT.
    Argued May 6, 1936
    Decided September 24, 1936.
    Before Justices Boduste and Hehek.
    For the petitioner-respondent, Cox <& Walbura and Arthur T. Mead.

    For the respondent-prosecutor, Merritt Lane.

   Pee Cukiam.

The writ brings up for review an award in a workmen’s compensation case in which both the bureau and the Court of Common Pleas concurred. Prosecutor contends that an award to the widow of the deceased workman was not proper since she had not made a timely claim. The proofs show that the employe was injured June 4th, 1927. An informal hearing resulted in an agreement, under the terms of which the employe was paid temporary compensation and compensation for permanent disability for a period of two hundred and fifty weeks. These payments had not been completed at the time of his death. Within a year after the last payment, the widow filed the petition now under review for compensation by reason of his death. The statutes applicable are: Pamph. L. 1911, ch. 95, p. 144, as amended by Pamph. L. 1913, ch. 174, p. 311; Pamph. L. 1919, ch. 93, p. 211, § 23 (h); 2 Cum. Supp. Comp. Stat. 1911-1924, p. 3886, § **236-32 (h). The decision of this court in Hercules Powder Co. v. Nieratko, 113 N. J. L. 195; 173 Atl. Rep. 606; affirmed, 114 N. J. L. 254; 176 Atl. Rep. 198, is controlling.

The proofs sustaining the finding of both the bureau and Court of Common Pleas that the employe died as a result of injuries sustained by him on June 4th, 1927, will not be disturbed.

The writ will be dismissed.


author: Jayne, C. C. J.

text:
    JAMES R. McCLELLAN AND SARAH McCLELLAN, PLAINTIFFS, v. F. A. NORTH COMPANY, A NEW JERSEY CORPORATION, AND FIDELITY AND DEPOSIT COMPANY OF MARYLAND, A CORPORATION, DEFENDANTS
    Decided October 2, 1936.
    Por the plaintiffs, William Charlton.

    Por the defendants, Waddington & Mathews.

   Jayne, C. C. J.

The controversial issues of law and fact in this action have been submitted by stipulation of counsel to the court for determination without a jury. It transpires, however, that the basic facts essential to the consideration of the case are not in a state of dispute or uncertainty.

The initial transaction between these parties, which apparently occurred on November 1st, 1927, is evidenced by an agreement in writing. This agreement, if accepted literally, reveals that the F. A. North Company “leases and hires” a certain piano to James McClellan and Sarah McClellan for the term of thirty-three months for the aggregate rent of $2,187. The agreement contains an acknowledgment of the receipt of $437 and it is conceded that the additional sum of $100 was paid upon the delivery of the piano. These are the only payments made by the so-called lessees to the North Company. The agreement embodies a promise by the lessees to pay to the company, as rent, the sum of $50 on December 8th, 1927, and a like sum on the eighth day of each succeeding month during the term of the lease. Confessedly, none of the monthly payments was made. It is observed that the agreement by its terms likewise accords to the company the right to repossess the piano if default in the payment of any monthly rent should eventuate. The lessees, so styled, being delinquent, the company on April 2d, 1928, caused a writ of replevin to be issued and executed by virtue of which the company obtained possession of the piano. Before deliverance of the piano by the sheriff to the company, the familiar bond, executed by the company and by the Fidelity and Deposit Company of Maryland as surety, was presented to the sheriff. This action in replevin, after seven uneventful 3Tears of its existence, was brought to trial at the Mercer Circuit on April 30th, 1935. At the trial a verdict was directed in favor of the defendants solely on the ground that the action had been instituted before any demand was made for the return of the piano. The action of the trial judge was reviewed and the judgment affirmed by the Court of Errors and Appeals. F. A. North Co. v. McClellan, 116 N. J. L. 145; 182 Atl. Rep. 875. The rule for judgment awarded the return of the piano to the McClellans, who were the defendants in the replevin suit. After the affirmance of the judgment, the defendants in the replevin action caused a writ de retorno habendo to be issued. The sheriff to whom this writ was directed made return that the chattel had been eloigned. On May 22d, 1935, the replevin bond was assigned by the sheriff to the present plaintiffs who were the defendants in the replevin action. Additionally it has been stipulated that the value of the piano at the time it was replevied was $2,187. The F. A. North Company was the owner of the piano. The taxed costs in the replevin action are $51.50. The foregoing is a statement of the facts adequately established in the present action. The plaintiffs here allege a breach of the condition of the replevin bond. This allegation is fully sustained by the proof. The obligation of the F. A. North Company under the bond was to “duly return the said goods and chattels in ease a return shall be awarded.” The return of the piano was awarded and the piano was not returned.

The proof of damages may now be examined. The only proof relating to damages submitted by the plaintiffs is that concerning the taxed costs allowed them in the replevin suit and the value of the piano. The plaintiffs in their complaint seek to recover the value of the piano and the taxed costs of the replevin suit as the consequent damage suffered by them as a result of the breach of the bond. In the brief submitted in behalf of the plaintiffs there is a persistent adherence to such a claim. In the existing state of the proofs, the demand for such damages would seem to be conspicuously exorbitant. At the time the piano was taken from the plaintiffs, they were not the owners of it and they were admittedly in default in the fulfillment of their contractual obligations. They had agreed that upon the occurrence of such delinquency on their part, the F. A. North Company might repossess the piano. Their possession of the piano at that time was apparently a matter of favor rather than a matter of contractual right. The aggregate sum of all the payments made by them to the company was $537. The piano was worth $2,187. Notwithstanding these evident circumstances, it is now contended that the initial situation of the parties has undergone a complete transformation in its legal character and that the plaintiffs are now entitled to recover the value of the chattel itself as damages. This anomalous outcome is said to be the inevitable effect of the judgment in the replevin action. The unfair insistence of the plaintiffs in the present case resembles the unrighteous contention of the plaintiff in Sloan v. Poor, 7 N. J. Mis. R. 197; 145 Atl. Rep. 469.

An examination of the pleadings filed in the replevin action discloses that the title to the piano was not in issue. Indeed, the absolute ownership of the T. A. North Company was admitted. An action of replevin is primarily possessory in its character and a judgment in such action ordinarily determines nothing beyond the right to the possession of the goods and chattels. The title to personal property may be in one and the right to possession in another. Then moreover, to maintain an action in replevin, the plaintiff must prove his right to the possession of the property at the time of issuing the writ. It may be determined that the plaintiff ought to have made a demand upon the defendant for a return of the property before suing out the writ of replevin and for this reason judgment may be rendered for the defendant. Therefore it is not to be conclusively assumed that a judgment for a defendant in replevin constitutes a judicial determination of the title to the property. The judgment in the replevin suit between these parties was not determinative of more than the right of possession of the chattel.

The argument in behalf of the plaintiffs seems to be that while it might have been competent to inquire into the title of the chattel and into the state of facts then existing in opposition to an order or an award for the return of the chattel in the replevin action, yet the return of the piano having been awarded, the company and its surety are now precluded from availing themselves of such evidence in this, action and that the award plus the failure to return the chattel make the defendants liable for the full value of the piano. True, the judgment awarding a return of the property to the defendants in the replevin suit is conclusive upon the parties. The failure to make return when so awarded constitutes a breach of the bond. The next question, however, relates to damages occasioned by the failure to return the property. This latter question obviously was not adjudicated or in issue in the replevin suit. Therefore the question of damages, so far as it has not been settled by any judgment, is clearly open to litigation in the present action.

In an action for breach of the replevin bond, involving also the liability of the surety, the defendants are permitted to introduce any relevant and competent evidence in mitigation of damages, provided such evidence does not constitute a collateral attack upon the judgment rendered in the replevin suit. The authorities uniformly affirm the right of a defendant in any such action to prove that the actual damage sustained by the plaintiff is less than -the value of the property replevied as well as other facts properly to be considered in mitigation of the damages. The logical reasons for this rule may be found expressed in the following reported cases: Davis v. Harding (Mass.), 3 Allen 302; Jones v. Smith (Me.), 10 Atl. Rep. 256; Jackson v. Emmons (Conn.), 22 Id. 296; Fielding v. Silverstein (Conn.), 40 Id. 454; Hannon v. O’Dell (Conn.), 43 Id. 147; Harmon v. Flood (Me.), 97 Id. 834; Macomber v. Moor (Me.), 148 Id. 682; Budracco v. National Surety Co., 182 N. 7. S. 590; Ringgenberg v. Hartman (Ind.), 24 N. E. Rep. 987; Consolidated Tank-Line Co. v. Bronson (Ind.), 28 Id. 155; 54 C. J. 671, footnote. Apparently in some states the admission of such evidence is authorized by statute. Magerstadt v. Harder (Ill.), 65 N. E. Rep. 225; Bates v. American Surety Company of New York (R. I.), 148 Atl. Rep. 323.

In the instant case, the proof discloses (original file in replevin suit) that the title to the piano was not judicially determined; that at the time the piano was replevied, it was owned by the R A. North Company, the defendant here; that under the terms of the agreement of November 1st, 1927, the company was entitled to lawfully retake the piano by reason of the existing default of the lessees. The lessees had so agreed. The agreement expressive of the rights of the parties with reference to the possession of the piano is in evidence. Justice requires that these facts be noticed in undertaking to determine the just damages to which the plaintiffs are entitled in the present action. These facts are clearly sufficient to indicate that the plaintiffs are not entitled to recover the value of the piano. The plaintiffs must prove their actual damage. If they have not in fact been damnified, they can recover only nominal damages. The bond is one of indemnity. If in the light of all the facts and in recognition of the judgment in the replevin suit, it is to be understood that the plaintiffs had some special, qualified or limited interest in the piano, such an interest was certainly no greater than a mere possessory right extinguishable at any time upon a proper demand by the company for the return of the property. In a suit upon a replevin bond for damages the fact that the plaintiff had only some special or qualified interest in the chattel has material significance. 54 C. J. 649; 23 R. C. L. 916; Sloan v. Poor, supra. In the present ease we have only proof of the value of the piano. Knowledge of the value of a chattel may sometimes aid in determining the value of its use. The limited proof here submitted considered in the light of other existing facts and circumstances does not afford a reliable basis for any reasonable monetary estimation of the loss suffered by the plaintiffs in consequence of the failure of the company to return the piano. In the absence of proof it cannot be said that the deprivation of such an uncertain possessory right requires an award of more than nominal damages.

The plaintiffs are entitled to recover the costs taxed in their favor in the original action in replevin. 3 Comp. Stat., p. 4375; Peacock v. Haney, 31 N. J. L. 179.

Consideration may now be given to the counter-claim. Concisely stated, the defendant F. A. North Company by way of counter-claim seeks to recover from the plaintiffs all of the monthly payments required to be made by the plaintiffs under the terms of the agreement of November 1st, 1921. It is noted that the agreement does not state that the title to the piano is to pass to the plaintiffs at a subsequent time upon the payment of part or all of the specified rental or upon the performance of any other condition or the happening of any contingency nor does the agreement provide that the plaintiffs, as lessees, are bound to become, or have the option of becoming, the owners of the piano upon full compliance with the terms of the agreement. See Pamph. L. 1919, ch. 210, p. 461, § 1; Cum. Supp. Comp. Stat. 1911-1924, p. 3129, § 182-87. Moreover, in this agreement the plaintiffs expressly agreed to return the piano to the so-styled lessor at the end of the term of thirty-three months. The question whether this document entitled “lease” is in truth expressive of a conditional sale or a bailment of the piano has received treatment in the briefs of counsel. Singer Manufacturing Co. v. Wolff & Co., 70 N. J. L. 127; 56 Atl. Rep. 147; Rapoport v. Rapoport Express Co., 90 N. J. Eq. 519; 107 Atl. Rep. 822; Wood v. Cox, 92 N. J. Eq. 307; 113 Atl. Rep. 501.

The fact, however, is evident that the defendant company by virtue of the writ of replevin took the piano from the plaintiffs on April 3d, 1928. If the transaction is regarded as a bailment, that is, one of hire, the proof reveals that the bailor resumed possession of the piano for the expiration of the specified period during which the plaintiffs, as bailees, were to have the use of the chattel and in such event and in the absence of some express stipulations to the contrary, the plaintiffs, as bailees, would be liable only’- pro tanto for the payment of the hire. If the transaction was in reality’’ an intended conditional sale of the piano, then it appears that the piano was retaken by the conditional vendor, was not resold and the counter-claim is for the balance of the purchase price. In such a situation the buyers are discharged of liability for the unpaid balance of the purchase price. 2 Cum. Supp. Comp. Stat., p. 3129, § 23. In either situation it is manifest that the defendant company is not entitled to recover the aggregate of all the monthly payments amounting to $1,650. The following term of the agreement is significant: “It is hereby expressly agreed that if the said lessor shall retake possession of said pianoforte * * * upon default during said term in the payment of the rentals hereby reserved, such retaking by said lessor shall not be taken or construed as in any manner releasing or discharging said lessee from liability for any rental unpaid at the time of such retaking(Italics mine.) This term of the agreement would seem to exhibit the intent of the parties in the eventuality mentioned. At the time the piano was taken by the company there were four payments of $50 each then due and owing. The problem survives for solution whether the defendant company is entitled to now recover under its counterclaim the installment payments which fell due on the 8th days of December, 1927, January, February and March in the year 1928.

In the answer to the counter-claim the plaintiffs aver that the transaction relating to the piano is a conditional sale and additionally they plead the statute of limitations. Berry v. Doremus, 30 N. J. L. 399; Masonic Temple Association v. Kistner, 11 N. J. Mis. R. 761; 168 Atl. Rep. 43.

The legal nature and character of this agreement as well as the intent of the parties must necessarily be harvested from the agreement itself. The agreement is unlike most of those now commonly encountered in that it contains no provision whatever for any future transmission of the title and does not accord to the so-called lessees any option to acquire the title. To the contrary the lessees are obligated to return the piano to the lessor at the expiration of the stated term. It has been held that an instrument in the form of a lease transferring the possession of personal property for a fixed term in consideration of the payment of a reserved rent with provision for the return of the chattel at the end of the term or sooner, in the event of default, and containing no provision for the future transmission of the title or any option or obligation relating thereto, is not a contract of conditional sale. Singer Manufacturing Co. v. Wolff & Co., supra. The conclusion expressed in the Wolff case has not been overruled but its recognition as an authority has subsequently been restricted to eases in which the facts are identical. Rapoport v. Rapoport Express Co., supra; Wood v. Cox, supra. The action on the counter-claim is between the parties to the agreement. The written paper constitutes the only evidence of the agreement between the parties. The agreement requires that the chattel be returned at the expiration of the stated period. There is no competent evidence of any contrary intention. The intent of the parties cannot be founded upon surmise or conjecture. The facts in the present case would therefore seem to be identical with those present in the Wolff case. It is said that the rental of $2,187 is equivalent to the value of the piano but precisely the same circumstance existed in the Wolff case. In the present case the transaction between the parties will therefore be regarded as a bailment.

The causes of action for the recovery of the payments which became due in 1927 and 1928 preceding the retaking of the piano obviously accrued more than six years before the assertion of the counter-claim of the defendant company. In behalf of the plaintiffs the insistence is that the recovery of these payments is barred by the statute of limitations. 3 Comp. Stat., p. 3162, § 1.

In response, the defendant company avers that the alleged indebtedness arises by virtue of a contract under seal. Whether the contract is a specialty or a contract without seal is a question of law which is to be solely determined by an inspection of the document itself. It must, upon inspection, appear to be a sealed instrument or it cannot be recognized as such. Corlies v. Van Note, Admr., 16 N. J. L. 324; Coral Gables, Inc., v. Kretschmer, 116 Id. 580; 184 Atl. Rep. 825; 56 C. J. 898.

In the usual place of a seal the printed letters “L. S.”’ enclosed in brackets appear on this agreement. The words of the testimonium clause are “Witness our hand and seal the date first hereinbefore written.” Immediately to the left of the printed letters “L. S.” and beneath the testimonium clause are the signatures of the two plaintiffs. It must be recognized that the practice of actually sealing legal documents by the impression of an individual mark or devise upon wax or wafer or even on the parchment or paper itself, has been largely abandoned in recent years. The use of wafers succeeded the earlier use of wax until in the modern times sealing of instruments has become more constructive than actual in character. Our statute declares that all instruments executed with a scroll, or other device by way of a scroll, shall be deemed sealed instruments. 2 Comp. Stat., p. 2240, § 66, 1.

Chief Justice Hornblower, in Corlies v. Van Note, Admr., supra, stated: “When therefore, a writing with nothing but a blot, or scroll, or flourish after the name, is shewn in court, we are bound to consider and treat it, as a simple contract only, unless it appears by the writing itself or by the Mis teslibus clause, that the party making it, intended to do so under his hand and seal.”

Mr. Justice Ford in a concurring opinion said: “The only way to ‘affix a scroll, or ink, or other device, by way of seal5 is by writing, ‘witness my hand and seal/ or ‘sealed and delivered/ or something to that effect in the instrument itself, which then becomes a deed in writing, instead of being by word of mouth. It then becomes on its face a deed, in writing, of which there can be a profert, and of which the court can form an opinion by inspection, according to the principles of law.”

The letters “L. S.” meaning originally “locus sigilli” have in recent times acquired the popular force of an arbitrary sign for a seal. The testimonium clause of the present agreement is evidence in at least a prima facie sense of the intention of the parties to seal the agreement. Although there is but one seal, the contract manifestly purports to be given under the hands and seals of the signers thereof. The testimonium clause indicates that all of the signers intended to seal it and in this situation it is to be presumed that each of the plaintiffs adopted the seal. Ryan v. Cooke (Ill.), 50 N. E. Rep. 213, 214: Cammack v. J. B. Slattery & Bro. (N. Y.), 148 Id. 781, 782; 56 C. J. 896.

It might be urged that the agreement by its terms was not to become binding and effective until its approval by the company at its office in the State of Pennsylvania and it might be therefore contended that in such circumstances the contract was made at the place of its ratification. Northampton Mutual Live Stock Insurance Co. v. William Tuttle, 40 N. J. L. 476. It may be observed that at the top of the printed agreement are the printed words “New Jersey” and additionally the agreement embodies an express provision relative to its admission in evidence in the courts of the State of New Jersey. However, even to postulate that the agreement was made in the State of Pennsylvania does not introduce any critical issue in this case because proof of the law of Pennsylvania was submitted. It is the uncontradicted evidence that the agreement is a specialty under the law of that state. Such proof having been adduced the case of Waln v. Waln, 53 Pa. 429; 22 Atl. Rep. 203, is not applicable.

It is next argued in behalf of the plaintiffs that there is no proof of the statute of limitations of the State of Pennsylvania. Such proof is irrelevant and immaterial. It is well settled that the statute of limitations merely affects the remedy and that in suits brought upon contracts such as that here involved, the period of limitation prescribed by the law of the forum controls. Summerside Bank v. Ramsey, 55 N. J. L. 383; 26 Atl. Rep. 837; Jaqui v. Benjamin, 80 N. J. L. 10; 77 Atl. Rep. 468. In the present case it is unnecessary to determine whether an action in this state for the recovery of an installment of rent reserved for the use of a chattel under a contract under seal is barred by our statute after a period of sixteen years has elapsed since the installment of rent became due and payable. The question here projected is whether such an action is barred by our statute after a period of six years has elapsed. The answer must be in the negative.

The consideration of all the controversial issues submitted by the parties for determination leads to these conclusions. The plaintiffs have proved a breach of the replevin bond. They are entitled to the taxed costs allowed them in the replevin suit amounting to $51.50 with interest thereon and in addition merely nominal damages. The actual damages of the plaintiffs are therefore assessed at $56. On the counterclaim the plaintiffs are indebted to the defendant P. A. North Company in the sum of $200 with $95.34 interest, amounting in all to $295.34.


author: Per Curiam.

text:
    WALTER G. WINNE AND W. DEMAREST CAMPBELL, RECEIVERS OF NATIONAL SURETY COMPANY, PLAINTIFFS-APPELLANTS, v. GEORGE E. MORRISSEY, DEFENDANT-RESPONDENT.
    Submitted May 13, 1936
    Decided October 2, 1936.
    Before Brogan, Chief Justice, and Justices Case and Persicie.
    For the plaintiffs-appellants, Hwrry Silverstein.

    For the defendant-respondent, Schneider & Schneider (Jacol Schneider).

   Per Curiam.

This is an appeal from a judgment entered in the Essex County Circuit Court in favor of the defendant on an agreed state of facts.

Defendant and another brought suit in attachment in the Supreme Court of New York against one Finch and filed therein a bond with the National Surety Company as surety. In order to procure that bond Morrissey signed the agreement of indemnification hereinafter set forth. On November 12th, 1926, the attachment suit was dismissed for lack of prosecution, and costs were assessed against Morrissey and his co-plaintiff. Suit was brought by the successful defendant in attachment against the National Surety Company in the Municipal Court of the city of New York upon the company’s bond, and judgment was obtained on June 18th, 1927, for $747.50, damages and costs. The surety company appealed and the judgment was afiirmed on December 22d, 1927. On December 23d, 1927, the surety company paid the judgment which, with accrued interest and $25 costs allowed on the appeal, then amounted to $794.95. The present suit was instituted on October 7th, 1933, by the receivers of National Surety Company to recover the sum of $1,044.45, that being the amount of the judgment finally charged against it, plus counsel fees and costs incurred by it in and about the suit.

The undertaking by Morrissey to the National Surety Company was as follows, the italics being ours to direct attention to provisions which we consider dispositive:

“That the undersigned will at all times indemnify and keep indemnified the company, and hold and save it harmless from and against any and all demands, liabilities, loss, damage or expense of whatsoever kind or nature, including counsel and attorney’s fees, which it shall at any time sustain or incur by reason, or in consequence of having executed the said bond or undertaking; and that whenever any claim or claims shall have been made upon the Company under the said bond or undertaking, if in the judgment of the company it is determined that such claim or claims should he paid, the undersigned covenants, promises and agrees to pay over in cash to the Company upon its demand therefor, the amount or amounts of said claim or claims; and if the company deny liability concerning any claim, or claims and suit or suits be brought against the Company under said bond or undertaking to recover the amount of said claim or claims, or any other proceeding or proceedings to be taken thereon involving the company, whether the suits and proceedings be against the Principal named in the said bond or undertaking, and the Company jointly, or against the Company alone, the Undersigned covenants and agrees to defend said suits and proceedings to a conclusion at the Undersigned’s expense, or to permit the Company, if it so elect, to place the defense of such suits and proceedings in the hands of its own attorneys or counsel, in which latter event the Undersigned covenants, promises and agrees to pay over to the Company upon its demand such sum or sums of money as may be required to retain said attorneys or counsel, and to defray the expenses of conducting the defense of said suits and proceedings; and further, the Undersigned covenants and agrees to satisfy and discharge any and all judgments recovered against the Company under the said instrument as soon as the same shall be entered or docketed, unless an appeal be taken and bond or bonds to secure ox stay the collection of such judgment or judgments be procured by the Undersigned and filed as required by law, and if a final judgment be recovered or entered against the Company after the decision of such appeal, the undersigned covenants and agrees to forthwith satisfy and discharge every such final judgment without requiring the company to take any steps whatsoever thereon; and should judgment be entered against the principal in said bond and the company, or against the company alone, in either event, should the undersigned not procure an appeal to be taken, and furnish bond or bonds to secure, supercede or stay the collection of such judgment, the Company may, if it elect, pay said judgment, whereupon the Undersigned agrees to forthwith repay to the company, the amount of said judgment so paid, together with legal interest thereon from the date of payment to the date of such repayment; that the Undersigned will pay over, reimburse and make good to the company, its successors and assigns, all sums and amounts of money, not hereinbefore provided for, which the company or its representatives shall pay, or cause to be paid or become liable to pay under its obligation upon said bond or undertaking, or as charges and expenses of whatsoever kind or nature, including counsel and attorney’s fees by reason of the execution thereof, or in connection with any litigation, investigation or other matters connected therewith, such payment to be made to the Company as soon as it shall have become liable therefor, whether it shall have paid, out said sum or any part thereof, or not.”

The question is whether plaintiffs were, on October 7th, 1933, barred of their action by the New Jersey statute of limitations. It is conceivable that a factual situation might have developed such as, in conjunction with defendant’s undertaking, to give rise to a cause of action which would then have been barred. But that does not answer the question. The argument seems to have been waged on whether the undertaking sued upon was intended to indemnify against loss or merely against liability. See North v. Joseph W. North & Son, 93 N. J. L. 438; 108 Atl. Rep. 244. The court below credited virtue to the final words of the agreement, considered that the indemnification was against liability, that the liability became definite on the entry of the original judgment, June 18th, 1927, that the cause of action against the defendant then arose and that the statute became a bar six years thereafter. We think that the indemnification agreement clearly anticipated and authorized appeal proceedings and bound the defendant to pay any judgment entered on the appeal as well as to pay the attorney’s fees. The liability on that particular undertaking could not arise until the appeal had ended. The appeal was determined on December 22d, 1927, and the judgment was paid on the following day. Payment therefore followed hard upon liability, and the distinction has no bearing upon our question because the instant suit was begun in less than six years after either date.

Judgment reversed.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. VINCENZO PISCITELLI, FRANK GENTILE, FILOMENA GENTILE, ANTONIO LANNI AND SALVINA LANNI, PLAINTIFFS IN ERROR.
    Argued May 6, 1936
    Decided October 2, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    For the state of New Jersey, Douglas M. Hicks.

    For the plaintiffs in error, John E. Toolan.

   Per Curiam.

Five persons were indicted for the crime of arson. One of them entered a plea of guilty. The other four went to trial and were convicted; and of the convicted defendants Antonio Lanni and Salvina Lanni, husband and wife, appeal. The case comes up on specification of causes of reversal under the one hundred and thirty-sixth section of the Criminal Procedure act.

It is first said that the verdict is contrary to the weight of the evidence and that the trial court erred in refusing to direct a verdict in favor of the appellants. We think that the verdict against Mrs. Lanni should be reversed on both grounds. The evidence against her is sufficient to engender suspicion but not to support a conviction. Title to the property was in her name. She had knowledge that several months before the crime additional insurance was placed sufficient to bring the gross sum up to the value of the buildings. Perhaps she participated in procuring that coverage. These and other incidents in the proof are consistent with guilt but are also consistent with innocence. Motive for, but not execution of, the crime was shown. Otherwise, however, as to Antonio Lanni. It was proved without contradiction that during the period of two days immediately preceding the crime Piscitelli, another of the convicted defendants, had bought, by the can and from various service stations, an aggregate of approximately forty-five gallons of gasoline, that he had also purchased, during the same time, ten gallons of turpentine, and that he was at the building in question a few hours before its destruction. Lanni is brought significantly within those circumstances by the evidence that during the evening preceding that on which the crime was committed he bought, on a credit slip chargeable to Piscitelli, two five-gallon cans of gasoline, and that the customer’s copy of the charge slip, which was delivered to Lanni, was discovered a few hours after the commission of the crime in the pocket of a suit of clothes in the attic of the Piscitelli home. Those clothes carried the odor of gasoline as did the shoes found with them. Certain rags and bits of carpet picked out of the ruins of the Lanni building and subjected to chemical analysis were shown to contain gasoline and turpentine. The conspicuous absence of the entire Lanni family from the premises on the night of the catastrophe, the location of the fire insurance policies, safe and entire, at the house where the Lannis then were, a mysterious and unexplained telephone call to that abode from the Piscitelli house in the very early morning following the destruction of the building'—all of these circumstances accumulate to make a case for the jury and to support the verdict against Lanni.

The second point on the appeal is that the state failed to prove the crime of arson. This grounds in the fact that there was a tremendous explosion which wrecked the building. The contention is that there is no proof of a tire before the explosion and that while there is proof of a fire thereafter it was the burning of blasted ruins and not of a dwelling house. The presence of two highly inflammable substances—gasoline and turpentine—within the house before the explosion may he inferred from the testimony of Gustave E. Steffens. The explosion occurred at about two-thirty in the morning. Three hours earlier a witness had noticed a faint light in the house. The explosion awakened John Palko, a neighbor directly across the way, who testifies that “all I saw was flames,” and also Mrs. Palko who testifies “it seemed as though everything was afire.” After the building had been blown asunder, there was fire within the foundations where the building had stood, and also “in the grass” and along “the fence.” If, as we think the jury could have found, the building was in flames at least contemporaneously with the occurrence of the explosion, then the fire in its origin was in and of the building as such and not merely in and of the ruins of the bnilding. It is almost inconceivable that an explosion of such violence as to level a two-story brick building and to leave merely a hole where the structure had been, to damage other buildings for blocks around and to hurl from their beds and to injure people in the neighboring houses, could have occurred without doing physical injury to anyone within the demolished building. The jury could, and doubtless did, find that no one was within the fated building at the time of the explosion, that the blast was due to the spread of a fire set by the perpetrators before leaving the premises and that the fire thereafter observed was merely a survival of that which had preceded, and had been the cause of, the explosion.

There are further objections to the refusal of the court to strike certain testimony and to portions of the charge. We find no reversible error thereunder.

The judgment below should be affirmed.


text:
    STEPHEN MACKNOWSKI, BY HIS NEXT FRIEND, EVA MACKNOWSKI, PLAINTIFF-APPELLANT, v. HUDSON AND MANHATTAN RAILROAD COMPANY, A CORPORATION, DEFENDANT-RESPONDENT.
    Argued May 5, 1936
    Decided October 2, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    Por the plaintiff-appellant, Alexander Simpson.

    Por the defendant-respondent, Collins & Corbin (Edward A. MarTcley).

   Per Curiam.

The action is for damages growing out of personal injuries. The trial court directed a verdict for the defendant, and plaintiff appeals.

It is undisputed that the plaintiff, a lad of twelve years, and four of his mates, three of whom had evaded the fare boxes by climbing out of a stairway window and along an outside ledge to a lower level, were skjdarking on the station premises of the defendant corporation at Journal Square in the city of Jersey City, and that August Itschner, a railroad policeman commissioned by the governor of the state under section 4, chapter 177 (Pamph. L. 1904; 1 Comp. Stat., p. 369), in the employ of, and compensated by, the defendant, started towards the boys to break up the play. Against forceful contradictory testimony it was also testified, and the jury could have found, that the officer, in pursuit of the boys, threw a club at them and that the plaintiff, in endeavoring to dodge the missile, fell from the platform to the tracks just as a train was pulling into the station. It is clear that the plaintiff was fleeing a police officer in uniform and that he did either jump or fall from the platform to the tracks and was injured by the incoming train.

Appellant asserts that the proofs contain two grounds of liability sufficient to take the case to the jury, first, that the officer, admittedly in the employ of the defendant, was, at the time of the accident, engaged in the service of the defendant in a capacity other than that of a policeman, and second, ■that the defendant, through its agents and servants, was negligent in not stopping the train in season to avoid the accident.

We find no proof of the employment of Itschner in any capacity save that of a commissioned state policeman. The play of the boys in a game of running pursuit on the stairways and station platform was a menace to the safety of those who had occasion to use those semi-public ways in going to and from, and awaiting, the defendant’s trains. The serious dangers incident to a mishap or fall caused by inadvertent contact with heedless players are manifested by the accident which befell the plaintiff. To stop such actions was, we think, quite within the authority of the peace officer; that seems also to have been the thought of the boys for it was the sight of the approaching uniform which caused them to attempt escape. If the function which the officer undertook to perform was within his duty as a commissioned railway policeman and was not instigated by the defendant company or some of its officers or employes, the defendant is not responsible for the officer’s acts therein; and that is so notwithstanding he receives his compenastion from the company and is subject to be divested of his powers by its act. Tucker v. Erie Railway Co., 69 N. J. L. 19; 54 Atl. Rep. 557; Goldberg v. Central Railroad Co., 97 N. J. L. 374; 117 Atl. Rep. 479. Ho instigation by the railroad company appears in this case. The officer, on learning of the incident, appears to have acted on his own responsibility. The burden of proving otherwise is upon the plaintiff. Rockwell v. Erie Railroad Co., 3 N. J. Mis. R. 373; 128 Atl. Rep. 482. Taylor v. New York and Long Branch Railroad Co., 80 N. J. L. 282; 78 Atl. Rep. 169; Dellabello v. Central Railroad Co., 99 N. J. L. 348; 124 Atl. Rep. 59, and Sturla v. Central Railroad Company of New Jersey, 4 N. J. Mis. R. 287; 132 Atl. Rep. 501; affirmed, 103 N. J. L. 507; 135 Atl. Rep. 920, cited by the appellant, are not, in onr opinion, pertinent.

There is no proof from which negligence in the operation of the train may be inferred.

Our conclusion is, therefore, that the judgment below should be affirmed.


author: Peeskie, J.

text:
    WILLIAM F. CHAMBERS, RELATOR, v. JOHN J. TOOHEY, Jr., COMMISSIONER OF LABOR OF THE STATE OF NEW JERSEY, RESPONDENT.
    Decided September 28, 1936.
    Before Justice Peeskie, in chambers, pursuant to statute.
    Por the relator, John C. Grimshaw (Samuel W. Harris, of counsel).
    Por the respondent, William J. Egan, assistant attorney-general.
   Peeskie, J.

Is the relator, an employe, entitled to participate in the fund (one per cent.) created by virtue of chapter 74, Pamph. L. 1919, p. 138; Cum. Supp. Comp. Stat. 1911-1924, p. 352, § 34-317, amended by chapter 81, Pamph. L. 1923, p. 162; Cum. Supp. Comp. Stat. 1911-1924, p. 3904, § **236-92, and chapter 55, Pamph. L. 1936, p. 145; N. J. Stat. Annual 1936, § **236-92 (1) ?

The facts are stipulated. On October 3d, 1929, relator was employed by one August Soffel, at Colt’s Neck, New Jersey, and lost the sight of his right eye; it was a compensable accident. Some fifteen or eighteen years prior thereto relator lost the sight of his left eye; it was not a compensable accident. The result of the two accidents rendered relator totally and permanently physically disabled.

Compensation from the one per cent, fund was paid relator from September 3d, 1931, to February 15th, 1935, at which time he was removed from the list of those receiving benefits. His removal appears to have followed the decision of the Supreme Court case of Addotta v. Blunt, 114 N. J. L. 85; 176 Atl. Rep. 105, in which it was held that (under the title of the act of 1923, supra), a prior non-compensable accident followed by a compensable accident did not entitle relator to compensation from the fund in question; both accidents had to be compensable.

Thereafter the legislature amended the act of 1923, supra, by the passage of the act of 1936, supra. By virtue of the last stated act relator was again placed on the list of those entitled to benefits, and payments to him started on May 14th, 1936. Respondent has refused to make any payments covering the period beginning February 15th, 1935—the date relator was removed from the list—to May 14th, 1936—the date relator was again placed on the list.

This application is to enforce such payment. Respondent resists payment on the ground that the act of 1936, supra, has no retroactive application. I think that respondent’s claim is without merit.

The apposite rules of construction in determining whether a statute is to be given retroactive effect are well established. Courts, of course, try to effectuate the purpose of the legislature. State v. Clark, 29 N. J. L. 96. The previous state of the law, the circumstances leading to the enactment of the challenged act, the evils the act is designed to remedy are factors to be considered. McGregor v. Home Insurance Company of Newark, 33 N. J. Eq. 181. The legislative intent is the guiding star. Clarkson v. Ley, 106 N. J. L. 380; 148 Atl. Rep. 745. Bearing these principles in mind plus the added one that in general all legislation affecting workmen’s compensation should be, and is, liberally construed in favor of the employe (Jersey City v. Borst, 90 N. J. L. 454; 101 Atl. Rep. 1033; Schmid v. Stanton Forging Co., 104 N. J. L. 471; 142 Atl. Rep. 4), it appears clear to me that when the legislature obviated the difficulties pronounced by the Supreme Court in Addatto v. Blunt, supra, the intent of the legislature is effectively carried out by declaring this act to be retroactive. But what is my basis for such a declaration? I am not unmindful of the cases which hold that “the general principle of statutory construction is averse to giving laws a retroactive effect and the consequence is such force is never ascribed to any act unless an intention to that end is to be found either in its language or object.” Wittes v. Repko, 107 N. J. Eq. 132, 134, and eases therein collated. 147 Atl. Rep. 498. But in the case at bar the statute itself, in unmistakable language supplies the answer. It provides, inter alia, that:

“* * * This act shall be retroactive as touching any accident occurring since the amending of chapter ninety-five, laws of one thousand nine hundred and eleven, by amendment of clause eleven (v), by chapter ninety-three, laws of one thousand nine hundred and nineteen, approved April eleventh, one thousand nine hundred and nineteen, in so far as paying of compensation for total disabilities of this class is concerned.” Pamph. L. 1936, ch. 55, ¶ 2; N. J. Stat. Annual 1936, § **236-93(2). That legislative mandate must be respected and obeyed. A peremptory writ shall forthwith issue, but without costs.


text:
    CATHERINE SCULLION, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JAMES SCULLION, DECEASED, PLAINTIFF-APPELLEE, v. LIVE WIRE BUILDING AND LOAN ASSOCIATION, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted May term, 1936
    Decided October 9, 1936.
    Before Bbogan, Chief Justice, and Justices Case and Pebsiíie.
    Por the plaintiff-appellee, Frank P. McCarthy.

    Por the defendant-appellant, Townsend & Doyle (Mark Townsend and Thomas F. Doyle, of counsel).
   Per Curiam.

This is the defendant’s appeal from a judgment recovered by the plaintiff in the Hudson County Court of Common Pleas. The plaintiff sued under the Death act as administratrix ad prosequendum of the estate of her deceased husband, James Scullion, who met his death as the result of a fall down the stoop of a building owned by the defendant. The deceased and the plaintiff had been visiting a niece of the plaintiff, who lived in the apartment house in question, and were leaving the premises at about eleven-thirty at night, when the accident occurred.

The plaintiff described the happening in these words: “Well, my husband opened the door for me and he went out first and he got three feet ahead of me onto the fifth step from the sidewalk and he went straight down to the sidewalk. Fell down * * *.” She further said that he "'didn’t slip,” but the court struck this out as a conclusion. On cross-examination, she testified that it had been raining that night; that her husband was not wearing rubbers; that it was raining as she and the deceased left the premises at the time of the accident; that it was dark, the steps were wet, and there was no street light near.

The only other witness whose testimony had any bearing on the accident was a police officer, George Sofield. He was patrolling his beat across the way, heard a cry, and came over to the decedent. The officer helped him to his feet and the injured man said to him, "I fell down the steps.” As a result of his fall, the decedent suffered fractured ribs on the left side, from which bronchial pneumonia developed, as a result of which he died.

The theory of the plaintiff’s claim against the defendant is that the defendant was guilty of negligence in the construction of the stoop; that the steps thereof, risers and treads, did not conform to the standard of construction required at the time the building was erected and that this negligence was the proximate cause of the happening. There was testimony from which a jury might conclude that the treads and risers of the stoop were less in width and height than is customary in buildings of this type.

Eeversal of the judgment is asked because the trial court declined to grant defendant’s motion for nonsuit. We think the motion should have been granted for the reason that in the evidence we find no proof that the failure of the steps to conform to the standard of construction was the proximate cause of the happening complained of, nor do we think the proof supports an inference that the construction of the steps was the proximate cause of the happening. The plaintiff, in order to recover, must show something more than that the defendant was possibly responsible for the happening, and in fact must show the existence of such circumstance as would justify the inference that the death was caused by the wrongful act of the defendant and would exclude the idea that it was due to a cause with which the defendant was unconnected. Suburban Electric Co. v. Nugent, 58 N. J. L. 658; 34 Atl. Rep. 1069. We do not think she has sustained this burden.

In the present case it appeared that the decedent- started down the steps, the place was dark, and the steps wet from the rain which was even then falling. He reached the third step from the top and fell. There was a failure of any proof that would tend to exclude the idea that the happening was due to a cause with which the defendant was unconnected.

The judgment is reversed, and a venire de novo allowed.


text:
    DANIEL DONOHUE, PLAINTIFF-RESPONDENT, v. LOUIS HABICH, DEFENDANT-APPELLANT. DANIEL DONOHUE, PLAINTIFF-RESPONDENT, v. LOUIS HABICH, DEFENDANT-APPELLANT.
    Submitted May term, 1936
    Decided October 9, 1936.
    Before Justices Bodine and Heher.
    For the appellant, Stein, Stein & Stein (Peter L. Hughes, of counsel).
    For the respondent, Ghivian & Ghivian (Herman Ghwian, of counsel).
   Per Curiam.

Under the circumstances, the questions of negligence and contributory negligence were peculiarly within the province of the trier of the facts. The state of the case shows testimony by a resident of the locus that, as the result of the violent electrical storm, "it became so dark he put the lights on his front porch;” and that defendant’s truck was on the concrete pavement for more than fifteen minutes before the collision. There was evidence that during this time the truck was unlighted. The governing principle is applied in Seibert v. A. Goldstein. Co., 99 N. J. L. 200; 122 Atl. Rep. 821; Ellis v. Robinson, 7 N. J. Mis. R. 470; 145 Atl. Rep. 870; Shinn v. Chiaccio, 8 N. J. Mis. R. 43; 148 Atl. Rep. 208; Ryan v. Deans, 114 N. J. L. 199; 176 Atl. Rep. 160.

Judgments affirmed, with costs.


text:
    ALBERT S. WOODRUFF, PLAINTIFF-RESPONDENT, v. RUDOLPH DI PAOLO, DEFENDANT-APPELLANT.
    Submitted May term, 1936
    Decided October 9, 1936.
    Before Justices Bodine and TTetter. ■
    Por the appellant, Wescott & Gelfand.

    Por the respondent, Albert S. Woodruff, pro se.

   Per Curiam.

There was evidence tending to establish plaintiff’s right to recover the fees, costs and disbursements set forth in the state of demand; and the judgment must therefore be affirmed.

There was no basis for the claim made by defendant that he was denied the right to argue the factual questions at the conclusion of the taking of the proofs. While the judge indicated he would “not hear argument,” the right was not asserted by defendant, nor was the question raised by an appropriate exception.

Judgment affirmed, with costs.


author: Lawrence, C. C. J.

text:
    Monmouth County Circuit Court.
    MABEL WHITE (PLAINTIFF) ,RESPONDENT, v. STANLEY GIFFORD (DEFENDANT)-PETITIONER.
    Decided September 25, 1936.
    For the petitioner, Kremer Proctor.

    For the respondent, JElvin B. Simmill.

   Lawrence, C. C. J.

Petitioner seeks to review by writ of certiorari out of this court the legality, in the jurisdictional sense, of a judgment entered against him for $150 and costs in the Small Cause Court, before Neil Algor, a justice of the peace. The action was in tort and damages in $200 were demanded. Such a proceeding here is recognized as supported by constitutional and statutory authority. Dufford v. Decue, 31 N. J. L. 302.

The allegation of petitioner is that he was illegally served with process in the suit at his residence in the borough of Belmar, the territory of which is within the jurisdiction of the District Court of the First Judicial District of the county of Monmouth (Pamph. L. 1913, ch. 22, p. 36; 1 Cum. Supp. Comp. Stat. 1911-1924, p. 954, § 61-1K), and that the Small Cause Court in question was without authority either to issue process against him or to entertain the suit, since he was a resident of the borough and the amount demanded was in excess of $50, inasmuch as the county is one of those bordering on the Atlantic ocean. That the Small Cause Court has no jurisdiction where any defendant resides within a municipality wherein a District Court is established is indicated. The pertinent acts of the legislature will be found in the session laws of 1903, chapter 165 (3 Comp. Stat., p. 2981); 1908, chapter 49; 1921, chapter 211, and 1923, chapter 175; while reference may also be had to 1898, chapter 228, section 31. Cum. Supp. Comp. Stat. 1911-1924, pp. 963, 964, § 61-31.

On presentation of the petition, with affidavit of verification, a rule was allowed requiring respondent to show cause why the judgment in the Small Cause Court should not be declared void and vacated. On the argument, her counsel conceded that at the time of the institution of the suit in the lower court, defendant (petitioner) was a resident of the borough of Belmar, that process had been served upon him there, and that the municipality had been included in the act of 1913 creating the First Judicial District of the county of Monmouth and subject to the provisions of the District Court act.

He suggested, however, that that particular part of the borough in which petitioner lived had been annexed to it after the District Court had been created, and that its jurisdiction should be regarded as limited to the boundary of the borough as it was in 1913, and that the jurisdiction of the Small Cause Court had not been affected, so far as petitioner was concerned, for that reason. It is to be observed that counsel had not been able to find any judicial authority supporting the suggestion, for the quite obvious reason, it would seem, that it is fundamental that local government in all its departmental activities, including such facilities of a judicial nature as may be provided by law, extends throughout the territory of a municipality and automatically, as it were, to such extensions as may be provided for by law from time to time. It was admitted that part of the adjoining township of Wall had been annexed to the borough, pursuant to legislative authority. See Pamph. L. 1907, ch. 25; Pamph. L. 1910, ch. 9, and Pamph. L. 1931, ch. 337 (N. J. Stat. Annual, p. 545).

On the argument of the rule, the facts were not disputed and it was agreed that if the court’s conclusion should be that the Small Cause Court had no jurisdiction over the person of petitioner and the subject-matter of the suit, because involving damages in excess of $50, and had been prohibited from exercising jurisdiction by reason of the existence of a District Court within the territory in which he resided, the writ of certiorari should be allowed and, on its return, should be disposed of on the basis of such conclusion without further argument. The matter here considered, it was admitted, had been raised in the court below, before the hearing of the action there had been fully argued and decided by the presiding justice of the peace adversely to petitioner. It may be said, consequently, that a case such as Doll v. Shafto, 10 N. J. Mis. R. 564; 160 Atl. Rep. 81, has no application here. Cases which do appear germane are Gordano v. Lunetta, 82 N. J. L. 338; 82 Atl. Rep. 525; Kaufman v. Smothers, 111 N. J. L. 52; 166 Atl. Rep. 453; Public Service Co-ordinated Transport v. Nemeth, 9 N. J. Mis. R. 500; 154 Atl. Rep. 408; Aumack v. Cotton, 9 N. J. Mis. R. 1321; 157 Atl. Rep. 549, and F. W. Woolworth Co. v. Zimmerman, 13 N. J. Mis. R. 505; 179 Atl. Rep. 474. The writ of certiorari prayed for will be allowed.


author: John C. Wegnek, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANNA VOSS, PETITIONER, v. THE PRUDENTIAL INSURANCE COMPANY, RESPONDENT.
    Decided October 6, 1936.
    For the respondent, J ames J. Slceffington.

    For the petitioners, John J. Meehan.

   % %

After listening to the testimony and hearing the stipulation of facts submitted on bohalf of the respective parties, I do find and determine that the petitioner, Anna Yoss, on April 29th, 1935, was employed by The Prudential Insurance Company as a stenographer-clerk. She alleges that on that date while assisting a co-worker to remove some papers from a desk, the other young lady called her an “idiot” because she misunderstood what she was to do. She stated that this upset her considerably and she walked out of the office and over to the water cooler and got a drink of water and that she was agitated and became weak and had to sit down. Later she was escorted to a doctor’s office across the hall where a nurse rubbed her hands and later she was taken home. Subsequently she was taken by her father for treatment to Dr. Henry Klause who treated her for a nervous spell.

At the completion of the petitioner’s case a motion was made to dismiss the petition on the ground that the petitioner had failed to prove that she sustained an accident arising out of and in the course of her employment, citing Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, and other cases.

I am satisfied that the petitioner did not meet with an accident arising out of and in the course of her employment, in fact there was not one iota of testimony to even suggest an accidental occurrence.

It is accordingly ordered that the petition be and the same hereby is dismissed.

John C. Wegnek, Referee.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HENRY LEISEROWITZ, PETITIONER, v. PRIMA DONNA SILK MILLS, INCORPORATED, RESPONDENT.

      Decided August 10, 1936.
    For the petitioner, Nathan Rabinowitz.

    For the respondent, Clarence B. Tippett.

   sj: * $ ❖ ❖ ❖ #

Examination of the record discloses that an original petition was filed November 24th, 1934, on account of an accident occurring August 21st, 1934, with the claim that he was lifting heavy weights on the back of a loom, felt a terrific burning pain in the heart region and arm, and then collapsed, and claims permanent heart impairment in addition to temporary incapacity. That claim was duly heard by Deputy Commissioner John J. Stahl on May 27th, 1935, who rendered judgment, in writing July 5th, 1935. which was duly entered, after a careful consideration and adjudication of all of the issues therein raised. The judgment therein decreed appears duly paid by the respondent.

A subsequent petition was filed August 21st, 1935, the same attorney appearing of record therein, with the same allegations substantially involving the merits therein set forth.

The counsel for respondent herein now applies for an order dismissing the petition filed herein on August 21st, 1935, on the grounds that the former determination and judgment herein, dated and entered July 5th, 1935, is res adjudicata upon the issue of permanent disability and temporary disability, to the merits of the claim; that there is no jurisdiction to merit presentation of present claim within the moaning, interpretation and intendment of the statute for further award. Counsel has also urged if the petitioner was not satisfied with the judgment as originally rendered, his remedy should have been to appeal from such determination and judgment.

After considering the arguments and submissions of the respective counsel, I conclude and find that the present petition filed contains the same allegations as substantially shown in the first petition filed herein; that the original claim was heard and a judgment duly rendered thereon, and I conclude that the present claim is res adjudicada, in face of the original petition and the judgment thereon duly entered. Deputy Commissioner Stahl rendered that judgment after a full trial of all the issues, with the parties represented by counsel and witnesses respectively heard.

If it was the intention of the second petition to have been filed for increased disability, I still am of the opinion that the matter should be res adjudicada.

Considering the provisions of 21(f) of the statute (Pamph. L. 1919, ch. 93, p. 210; Cum. Supp. Comp. Stat. 1911-1924, p. 3882, § **236-24 21(f)), it reads:

“An agreement for compensation may be modified at any time by a subsequent agreement, or a formal award reviewed within two years from the date when the injured person last received a payment, upon the application of either party on the ground that the incapacity of the injured employe has subsequently increased or reviewed at any time on the ground that the disability has diminished * *

Turning to the judgment rendered by Commissioner Stahl, I find that he held there was no permanent activation of a pre-existing heart condition to petitioner; that the petitioner had failed to establish any permanent disability as a result of the accident of August 21st, 1934; that temporary compensation was awarded to May 22d, 1935, when he found it had ceased and there was no further incapacity to the petitioner, the result of this accident. Therefore, I find that this case is res adjudicaia; that the extent of disability was determined by the court at a hearing upon the merits of the claim; that the disability had ceased prior to the trial herein held, and there is now no grounds for a review of the issues.

The action of counsel for respondent dismissing the petition, is duly granted.

$$$$$$$

Charles E. Corbin, Deputy Commissioner.


author: Perskie, J.

text:
    ANNA McCARTHY, ADMINISTRATIX AD PROSEQUENDUM OF THE ESTATE OF FRED McCARTHY, DECEASED, PLAINTIFF, v. DONALD J. GUIRE AND GUS L. COLBIE, DEFENDANTS.
    Submitted May term, 1936
    Decided July 25, 1936.
    Before Brogan, Chief Justice, and Justices Case and Perskie.
    Por the plaintiff, Quinn, Parsons & Dor emus (Theodore Parsons, of counsel).
    Por the defendant Gus L. Colbie, Applegate, Stevens, Foster & Reussille.

   The opinion of the court was delivered by

Perskie, J.

It is the settled law of our state that before a judgment by default regularly entered will be opened for the purpose of interposing a defense, the one seeking to invoke the aid of the court must show surprise and merit. Schwenk v. DeMaio, 79 N. J. L. 189; 74 Atl. Rep. 267; Lavino & Co. v. National Surety Co., 104 N. J. L. 475; 141 Atl. Rep. 663; Hanover Trust Co. v. Rizzo, 110 N. J. L. 581, 582; 166 Atl. Rep. 326. Does defendant’s proof show surprise and merit? We recur to the facts.

On June 1st, 1933, plaintiff’s intestate, while riding as a passenger in the automobile of one Donald J. Guire, one of the defendants, was involved in an accident with a car driven by Gus L. Colbie, the other defendant. “And sudden death” ensued.

Anna McCarthy, widow of the deceased, as administratrix ad prosequendum of his estate, caused suit to be instituted on July 17th, 1933, against both defendants. The jury returned a verdict in favor of the defendant Guire and a judgment was entered thereon. In behalf of the defendant Colbie an answer was filed on August 25th, 1933, by Mr. Abraham J. Isserman, an attorney-at-law. The record discloses, and stands uncontradicted, that on December 4th, 1934, plaintiff’s attorney (Mr. Parsons) notified Isserman that this cause was on the call for December 6th, 1934, and that it would be tried on that day. It was, in fact, tried on December 7th, 1934. Neither Colbie or his attorney appeared at the trial.

First: The element of surprise. The proofs disclose that defendant was served with summons and complaint on or about July 18th, 1933, by registered mail through the office of the commissioner of motor vehicles. On July 25th, 1933, defendant engaged Mr. Isserman to defend the suit. Defendant says that he personally interviewed witnesses, obtained a survey of the site of the accident, procured photographs, and in a general way collected the evidence to be used at- his trial. Although the venue was laid in Monmouth county and the ease was tried in Freehold, New Jersey, defendant made several trips to the clerk of the Supreme Court, at Trenton, inquiring as to the probable date of the trial. Notwithstanding these efforts, defendant persists that the first notice he had of the entry of the judgment against him was upon his being advised by the commissioner of motor vehicles of that fact on February 5th, 1935. He thereafter consulted New York counsel, who in turn apparently enlisted the services of another New Jersey attorney, Mr. Weiser. No proceedings, however, to open the judgment were instituted until May 29th, 1935, when his present counsel was retained.

Surely, it cannot be said that defendant was guilty of laches, indifference or inertia. Hanover Trust Co. v. Rizzo, supra, On the contrary, he appears to have exercised considerable effort, much of which was, perhaps, misdirected, in preparing for trial. Isserman did not explain to the court below nor does he now explain his failure to appear at the trial. It is true that defendant says that he was not satisfied with the manner in which his defense was being prepared, but it is also true that there was either a misunderstanding or controversy as to the payment of his counsel’s fees. Be that as it may, it is argued for defendant that he had a right to rely on Isserman. We are not, on the tenuous record submitted, to be understood as intimating any opinion on that argument. The fact, however, remains that defendant was not in court nor was he represented by his attorney of record.

Obviously, there can be no fixed formula by which the necessary element of surprise may be measured in every case. The extenuating factors of each particular situation must be the ultimate determinants. We think that the proofs show the element of surprise.

Second: As to the merits. If defendant Colbie’s version of the accident be true, and there is evidence to support it, then defendant Guire alone was responsible for the resultant damages. There is proof that Guire’s car crashed into Colbie’s car; that Guire was driving at a rate of speed between fifty and fifty-five miles an hour and continued at that rate of speed until the time of the accident; that he paid no heed to a stop sign on the highway from which he emerged. For defendant Colbie it is urged that he did not travel over thirty miles an hour. The testimony of one Bobert M. Steel, who traveled in the second car to the rear of Colbie, is to that effect. At all events, it appears to us that, as to the parties here, there is a clear issue for the jury both as to negligence and contributory negligence. We think that the proofs also show the element of merit.

The judgment is opened and set aside, and defendant Colbie is allowed to defend. /Costs to abide the event.


author: Pee Ctjeiam.

text:
    VEENEMA & WIEGERS, INCORPORATED, A BODY CORPORATE, PLAINTIFF-APPELLANT, v. THE WHITE COMPANY, LIKEWISE A BODY CORPORATE, DEFENDANT-RESPONDENT.
    Submitted May term, 1936
    Decided October 9, 1936.
    Before Justices Bodine and Hehee.
    For the appellant, Jerome Alper (Samuel B. Friedman, of counsel).
    For the respondent, Aristo Dallavalle (Herman Cooper, of counsel).
   Pee Ctjeiam.

This case was tried by the District Court judge, sitting without a jury; and the sole ground of appeal is that there was error in the denial of plaintiff’s motion for a “directed verdict in its favor.” This and other specifications raise the question of whether there is any evidence to support the judgment.

The inquiry must be resolved in the affirmative. Under the circumstances, it was open to the judge to find that the sale was in fact unconditional, and that the conditional sales agreement was an afterthought. Moreover, he found as a fact that the defendant corporation had no knowledge of the claimed conditional sales contract between plaintiff and Siematkowski, until after the sale in the proceedings instituted to foreclose its chattel mortgage, and the resale of the vehicle to Palo (it was not recorded at any time); and, in such circumstances, the long and unexplained delay after Siematkowski’s default in exercising the now asserted right of possession under this unrecorded instrument tends to refute the claim of a conditional sale. We think, too, that it constituted a waiver of the condition, if in fact there was such a contract, and precludes recovery in an action for conversion.

Judgment affirmed, with costs.


author: Case, J.

text:
    UNITED ENGINEERS AND CONSTRUCTORS, INCORPORATED, PROSECUTOR, v. THOMAS ANDERSON, DEFENDANT.
    Submitted May term, 1936
    Decided October 13, 1936.
    Before Bbogan, Chief Justice, and Justices Case and Pebskie.
    For the prosecutor, Henry H. Fryling and Elmer W. Bomine.

    For the defendant, Abraham 8. Gechtman and William Fogel.

   The opinion of the court was delivered by

Case, J.

The single question is whether an earlier determination by the workmen’s compensation bureau was so dis-positive of the issues presented by a later petition as to constitute res adjudicata and thus deprive the bureau of jurisdiction to entertain the later petition.

On June 14th, 1934, Thomas Anderson filed his first petition. lie alleged therein that he had suffered compensable injury and that his disability was such that he would never be able to work. By a bill of particulars thereunder he further asserted that he.was, on July 3d, 1934, suffering from a one hundred per cent, disability.. The bureau found that the employer had already paid Anderson temporary compensation for a period of forty-three and five-sevenths weeks at $20 per week and compensation for permanent disability to the extent of sixteen per cent, of the total and that those payments constituted adequate compensation. Thereupon the petition was dismissed. Those findings were incorporated within a rule for judgment dated January 30th, .1935, and amended July 24th, 1935.

On June 14th, 1935, Anderson filed another petition seeking compensation. It, too, asserted that the petitioner would not be able to work again. It further alleged a progressive increase of the disability. The employer moved to dismiss the second petition upon the ground that the claim for compensation having been once heard and denied no further right to compensation existed, and that as the bureau had heard and denied the claim for one hundred per eént. total disability that determination constituted res adjudicada against a claim for compensation based upon increased disability.

We do not follow that reasoning. In the first place, neither the original petition nor the bill of particulars filed thereunder claimed precisely what prosecutor asserts. The language did not constitute a claim for one hundred per cent. permanent disability; but even if it were so construed, a determination of the bureau adverse to that contention would not of itself prevent a review upon a claim of subsequently increased disability. Ecken v. O’Brien, 115 N. J. L. 33; 178 Atl. Rep. 373.

We find no bar in the 1935 determination to a timely review upon the ground of disability increased since the making of that determination. The new petition is not nicely framed as a petition for review but it may be so construed, and the deputy commissioner sitting in the cause entertained it as such. His language is: “If I had found on the original hearing that the petitioner was totally disabled of course then there would be no cause of action. But I didn’t find that. I found that the petitioner was only partially disabled and therefore under the statute the petitioner has the right to tome in simply on that one issue, not to go into the facts in the case that were taken up before hand. But the burden is on the petitioner to show that since that hearing the petitioner’s disability has increased.” We consider that the position thus stated was quite tenable. The earlier adjudication is res adjudícala as to the issues then determined but not on the question of an increased disability alleged to have taken place subsequent to the original determination.

The writ will be dismissed, with costs.


author: Per, Curta m.

text:
    STRUNG’S PIECE DYE WORKS, INCORPORATED, PROSECUTOR, v. ROCCO GALASSO AND THE COURT OF COMMON PLEAS IN AND FOR THE COUNTY OF PASSAIC, RESPONDENTS.
    Argued January 23, 1936
    Decided October 16, 1936.
    Before Brogan, Ciuee Justice, and Justices Lloyd and Donges.
    For the prosecutor, Merritt Lane.

    For the respondents, Nathan Rabinowitz and Isadora Rabinowitz.

   Per, Curta m.

This is a workmen’s compensation case and it resulted in an award in the bureau and affirmance of that award in the Pleas. The claimant was injured in an accident April 21st, 1931. Voluntary payments were made by the employer up to November 12th, 1931, when they ceased. On December 17th, 1931, a formal petition was presented to the bureau and this resulted on March 24th, 1932, in an award, the specific elements of which it is not necessary to state.

On February 10th, 1933, a new and second petition was filed. This petition is described by the respondent as one for increased compensation. The final clause of the petition is that the bureau will determine the amount of compensation. The prosecutor, employer, contends that the petition is not one for increased compensation, that a formal determination had been entered on the earlier petition, that that determination was a complete disposition of the case, and that in any event the petition, whatever its nature, was out of time.

The various statutes claimed to be applicable by one or the other of the parties and the numerous decisions bearing on the questions raised are cited in the briefs of counsel. We think it unnecessary to go into a detailed recital of the sections or decisions cited. It is sufficient to say that chapter 279, laws of 1931, page 705 (N. J. Stat. Annual 1931, § **236-24(f)), materially modifies the period within which a formal award by the compensation bureau may be reviewed, and so modified the application in the present case was in ample time if the act of 1931 is available to the claimant. That it is available we think has been decided by the Court of Errors and Appeals in the case of McLaughlin v. Hahne, 113 N. J. L. 32; 172 Atl. Rep. 566, affirming the Supreme Court decision, 12 N. J. Mis. R. 6; 169 Atl. Rep. 542.

That there was an award to be reviewed is clearly shown by the record. One of the objects of the Workmen’s Compensation law is to simplify and make as simple and inexpensive and informal as possible all proceedings under it, and having this purpose in view, we are not impressed with the criticism of the application as a ground of defeating the substantial rights of the parties.

The judgment is affirmed.


text:
    REBUILT RANGE COMPANY, PLAINTIFF-RESPONDENT, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted May term, 1936
    Decided October 9, 1936.
    Before Justices Bodine and Heher.
    For the appellant, Frederic B. Scott.

    For the respondent, Simon & Gohen (Martin Simon, of counsel.
   Per Curiam.

The judgment is affirmed, on the authority of Sprotte v. Delaware, Lackawanna and Western Railroad Co., 90 N. J. L. 720; 101 Atl. Rep. 518.

We find a sufficient basis in the proofs for the findings that the stoves, shipped as they were in open crates, and therefore subject to inspection, were in good condition when delivered to the initial carrier, and, consequently, that the conceded damage occurred thereafter.

Judgment affirmed, with costs.


text:
    GEORGE FREUDENREICH, RESPONDENT, v. MAYOR AND COUNCIL OF THE BOROUGH OF FAIRVIEW, APPELLANT.
    Argued January 21, 1936
    Decided October 16, 1936.
    Before Brogan, Chief Justice, and Justices Lloyd and Donges.
    Por the appellant, Dominick F. Pachella.

    Por the respondent, William George.

   Per Curiam.

Plaintiff below sued to recover compensation for services actually rendered as a policeman. That he acted as a policeman and that he performed the services of a policeman is not questioned on this appeal. It is urged that he was not entitled to recover because he had been previously dismissed from office by the governing body of the borough and not thereafter legally employed.

The facts were that in December, 1933, certain charges were made against the respondent. These charges were tried, the defendant found guilty, and dismissed from his office as a policeman on January 20th, 1934.

On appeal to the Supreme Court the dismissal was set aside; this on March 12th, 1934. On March 15th, 1934, the chief of police, acting under instructions from the chairman of the police committee of the governing body, directed the respondent to return to work as a policeman.

An appeal was taken thereafter to the Court of Errors and Appeals from the ruling of the Supreme Court, and on the appeal the case was remanded to the Supreme Court to determine the issues of fact involved in the dismissal. The latter tribunal upon further consideration of the case rendered its decision affirming the action of the municipal body and the dismissal of the respondent.

Based upon the rendition of the first judgment by the Supreme Court, the action of the chief of police, and the performance of the services called for as a police officer, the respondent brought the present action to recover salary then claimed to be due from March 15th, 1934. The action resulted in a verdict and judgment for the plaintiff.

That the plaintiff below was not legally re-employed we think may be assumed to be true. There was no authority in the chairman of the police committee nor in the chief of police to direct him to return to work. He did, however, return to his office in pursuance of the direction of his chief, and according to the proofs, performed all the duties exacted of him until the final affirmance of his dismissal by the Supreme Court.

Tn this situation was he entitled to recover? It is well established in our law that the acts of a de facto officer as to third parties are valid and binding and citation of authority to this effect is unnecessary, ft seems to be also established in this state that whore a de facto officer performs the duties of the office which he has assumed without fraud or dishonesty, he is entitled to the compensation prescribed by law therefor.

There can be no doubt that a policeman is an officer holding an office. This much has been established in this state ever since the case of Hoboken v. Gear, 27 N. J. L. 265, and the numerous cases following in its wake. In the case of Erwin v. Jersey City, 60 Id. 141; 37 Atl. Rep. 732, it was decided by the Court of Errors and Appeals that one who becomes a public officer de facto (though not de jure) without fraud or dishonesty on his part, and who renders the services required of such public officer is entitled to recover the compensation provided therefor during the period of their rendition.

It matters not that in the Erwin case the plaintiff was suing for compensation as a corporation attorney and in the present case it is a policeman suing as such. The principle of law laid down in the former case is applicable and sustains the ruling of the court and the recovery in the present case. Indeed in McArt v. Belleville, 97 N. J. L. 396; 117 Atl. Rep. 595, the Supreme Court invoked that ruling in favor of a police officer suing as here to recover salary, and held that recovery could be had.

The other questions we think become unimportant and unavailable to the appellant inasmuch as the qualifications of the officer could no more prevent payment of compensation than could the illegality of employment.

The judgment is affirmed, with costs.