author: Stafford, A. M.

text:
    Rose Greenspan, complainant, v. Louis Greenspan, defendant.
    [Decided February 7th, 1941.]

      Mr. Ncd'hamiel 77. Franzblau, for the complainant.

      Mr. Irving L. Werlesman, for the defendant.
   Stafford, A. M.

The complainant, Rose Greenspan, on or about March 2d, 1937, filed a bill for maintenance,wherein she charged that the defendant, Louis Greenspan, had obtained a decree of divorce against the complainant in the Republic of Mexico, State of Morelos, but that the same had been procured by-fraud, suppression of the truth, and false statements, and that the courts of Mexico at no time had jurisdiction over the subject-matter or jurisdiction over the complainant or defendant. As a result thereof, the complainant charges the said decree of divorce is a nullity and petitions this court to declare the said decree to be null and void.

Under the second cause of action in the said bill of complaint, the complainant charges the defendant with abandonment, commencing during the month of December, 1932, coupled with an additional allegation that the defendant, although he has been contributing toward the support of the complainant and her children it was a meager contribution; further alleging that since January, 1937, the defendant failed to make any contributions toward the support and maintenance of the complainant and a dependent child.

The defendant answered, denying the material allegations set forth in the bill of complaint, and alleged that he at all times adequately and fully maintained and supported the complainant and the children of the marriage.

Defendant, in his answer to the allegations set forth under the second cause of action, entered a special appearance, asking leave to be heard thereon before the matters in issue were determined by the court, alleging further that neither the complainant nor the defendant were residents of the State of New Jersey; that the domicile of both the complainant and the defendant was in the State of New York, and that by reason thereof the Court of Chancery of the State of. New Jersey is without jurisdiction.' Defendant further alleged in said answer that no subpoena ad respondendum was issued out of the State of New Jersey, commanding the complainant to make answer to the bill of complaint.

Issue was joined and the matter came on for final hearing.

The marriage of the parties was proved and corroborated, but the question of residence in the State of New Jersey has been disputed by the defendant.

The evidence reveals the fact that the complainant and defendant were married in the city of New York on or about September 6th, 1913, and as a result of the said marriage three children were born: Herman, twenty years, Irene, twenty-two years, and Mary, twenty-four years.

Apparently the family life was not a very happy one, and in the month of December, 1932, while they were living in the city of Brooklyn, State of New York, the final separation occurred, the complainant saying that the defendant just walked out of the house without saying anything and never returned since that time.

While they were living together, the complainant testified she received from the defendant the sum of seventy ($70) or eighty ($80) dollars weekly to take care of household affairs, but after the final separation he reduced this to the sum of thirty ($30) dollars a week. Later on, the defendant again reduced this allowance to the sum of fifteen ($15) dollars a week.

Shortly after the final separation, the complainant purchased a grocery store in Newark, New Jersey, where she lived, and operated the same for a period of three years, after which time she disposed of the same for the reason, as she testified, when the children got older they didn’t like working in a grocery store.

While the complainant was living in Newark, during the month of June, 1935, she was served with papers printed in the Spanish language. These papers admittedly constituted the service of divorce proceedings commenced by the defendant against the complainant in the Eepublic of Mexico, State of Morelos.

The complainant consulted a lawyer about these divorce papers, but never took any steps to file an answer or defend or protect her interests in the matter.

After the service of these divorce papers, the defendant continued to support his wife and family irregularly in the sum of fifteen ($15) dollars a week.

However, sometime during the month of January, in the year 1937, the complainant received information from her daughter, Irene Greenspan, that the defendant was not only divorced, but had remarried. The witness, Irene Greenspan, testified that she had visited her father in a hospital in the city of Passaic in the month of January, 1937, and while she was there her father informed her that he had remarried.

The receipt of this information about the remarriage of her husband changed the attitude of the complainant with regard to support and maintenance and, as a result of this change in attitude, the bill of complaint was filed in the instant case.

I will first discuss and examine the defendant’s contentions concerning the allegations in the bill, and the jurisdiction of this court to hear and determine the same.

The defendant, in his answer, and of his own volition, attempted to enter a special appearance. The defendant also entered into a certain stipulation with the complainant in which, among other things, he attempted to reserve the right to enter a special appearance.

The file does not contain any record of any application for leave to file a special appearance; nor does the file contain any order allowing the same, and the mere fact that the defendant attempted to enter a special appearance in the answer, or that an application was made at the hearing, or the fact that the defendant entered into certain stipulations with the complainant, in which the defendant reserved the right to enter a special appearance, does not absolve the defendant from making his application to the court for an order permitting such special appearance. The reasons are obvious, and have been set forth very clearly in the case of Swetland v. Swetland, 105 N. J. Eq. (at p. 608), wherein Vice-Chancellor Berry stated: “So far as this court is concerned I consider it settled that a special appearance for the purpose of addressing a motion to the jurisdiction of the court, filed without leave, amounts to a general appearance. And it is my understanding of the law that this was always so where the question was one of jurisdiction over the person arising out of service of process.”

In other words, before .any steps may be taken in the cause, the defendant, if he desires to appear specially, must first apply to the court and obtain leave or permission so to do; otherwise, the defendant is appearing generally in the cause.

Defendant also claims this court lacks jurisdiction because neither the complainant nor the defendant were residents of the State of New Jersey, and this motion applies both to the date on which the bill of complaint was filed, and also the date on which the Mexican divorce decree was obtained. Whether or not the parties herein were residents of the State of New Jersey when the Mexican divorce decree was-obtained is immaterial, as long as the residential requirements were present at the time of the filing of the bill.

This is a bill for maintenance, which is an action in personam. Being a personal action, it must needs be brought in the state where the husband is located. The defendant was served in New Jersey, and from the evidence I find he resided in New Jersey at the time of such service. Fried v. Fried, 99 N. J. Eq. 106.

The complainant was a resident of New Jersey. A husband’s domicile, in legal contemplation, is the domicile of the wife and is unchangeable by her except with his acquiescence or consent, or by such misconduct on his part inimical to the union as justifies her in selecting another. Webb v. Webb, 13 N. J. Mis. R. 439.

Defendant’s abandonment of complainant in Brooklyn, New York, justified her in selecting another domicile.

This court entertains no doubt that when the defendant was served in this cause he was a resident of the State of' New Jersey, living and working in the city of Passaic. Not only did his daughter testify as to admissions made by him concerning his residence, but defendant called as his own witness one Charles C. Gifford, a real estate agent, who testified that he rented to this defendant in January, 1936, an apartment located at No. 11 Offord street, Passaic, New J ersey.

Purthermore, the witness, Sylvia Millstein, testified that the defendant had admitted to her that he lived in the city of Passaic, New Jersey. Upon her re-examination later in the hearing, she attempted to change this testimony. At the time of the service of the subpoena ad respondendum the defendant was a resident of the State of New Jersey, and the service was valid.

Defendant further argues that in these proceedings the complainant has no right to attack a divorce decree of a foreign jurisdiction. This is answered by saying that under certain circumstances a foreign divorce decree may be impeached collaterally, as, for instance, in a suit for separate maintenance under the statute. Fried v. Fried, 99 N. J. Eq. 106; 132 Atl. Rep. 674.

“There is no reasonable distinction between the case of a wife who attacks the validity of a foreign decree in a maintenance suit, and a case in which she attacks the foreign decree interposed as a defense in a suit brought by her for absolute divorce.” Shapiro v. Shapiro, 13 N. J. Mis. R. 788; 180 Atl. Rep. 434.

Defendant further insists that the bill of complaint does not charge an abandonment and a refusal or neglect to maintain and provide for the complainant and her children, as required by the statute. It is true that these words are not actually used in the bill of complaint, but in paragraph 3 of the “First Count” we find “that in the month of Deecmber, 1932, the defendant deserted the complainant, unjustifiably and has refused to live with her.”

Under the tile of “Second Count” we find “paragraphs 1 to 12 inclusive of the First Count are herewith made paragraphs 1 to 12 inclusive.of the Second Count.” And paragraph 13 of the “Second Count” recites: “Prior to January, 1937, the defendant has failed to properly maintain the complainant, but as previously stated, the defendant, to avoid adverse publicity, did not institute any legal proceedings.” And paragraph 14 of the Second Count recites: “Since about January, 1937, the defendant has failed to make any contributions for the support and maintenance of the complainant and dependent children.”

The prayer of the bill likewise petitions for suitable support and maintenance, &e.

While the bill undoubtedly was inartistically drawn, including the use of the titles “First Count” and “Second Count,” rule 60, Court of Chancery, I am satisfied that all of the statutory requirements are present.

The defendant also argues that there was no service upon the defendant of a subpoena ad respondendum.

The file in this cause contains the original subpoena ad respondendum with the following words typewritten on the back: “Service of a true copy of the within subpcena to answer is hereby acknowledged this 10th day of March, 1937, and service thereof by the Sheriff is hereby waived. Louis Greenspan (in ink). Louis Greenspan, defendant (typewritten) .”

Unquestionably this service was not made by the sheriff or any other proper officer, but service' was simply acknowledged by the defendant himself.

1 Comp. Stat. p. 412 § 6 recites:

“A written appearance in any suit in Chancery or a written acknowledgment of the service of any subpoena to answer, signed by a defendant or his solicitor, shall have the same force and effect as if such defendant had been legally served with a subpoena to answer by the Sheriff or any other proper officer; provided, such signature of the party be verified by affidavit.”

The signature of Louis Greespan, defendant, was not verified by affidavit as required by the statute. This apparent irregularity of service, however, is rectified because the defendant did not obtain leave or permission of this court to appear specially. On the other hand, he not only filed his answer, hut he called witnesses in his own behalf, although he himself failed to take the stand. This constitutes a general appearance.

It was held in Frank v. Salzberg Co., 102 N. J. Eq. 107, citing Card v. Newlin, 71 N. J. Law 438: “Indeed, after the defendant has entered a general appearance, the process by which he was summoned has .fulfilled its function in that respect and becomes unimportant.”

How as to the merits of the case. 1 find there was an abandonment and refusal or neglect to support. The complainant testified that in December, 1932, while both parties were living in Brooklyn, New York, the defendant deserted her, and never again returned to live with her. The defendant- was in court and heard these accusations made by the complainant, but he did not deem it necessary to take the stand and deny them, furthermore, when called as a witness for the complainant, he admitted obtaining a Mexican divorce decree against the complainant, while, as he said, he lived m New York.

This decree was based upon inconxpatability of character, as will be shown hereafter. This admission, coupled with his failure to take the stand, although he was present in court, is sufficient corroboration of abandonment, if such corroboration is necessary. Pinkinson v. Pinkinson, 92 N. J. Eq. 669; 113 Atl. Rep. 143; Shore v. Shore, 96 N. J. Eq. 661; 126 Atl. Rep. 320.

At one time during their married life the complainant received from the defendant seventy ($70) or eighty ($80) dollars a week, but after the final separation this sum was reduced to thirty ($30) dollars a week. This payinent of thirty ($30) dollars a week continued until the complainant went to live in Newark, New Jersey, in which place she conducted a grocery store purchased from her sister. From the commencement of this business venture, the defendant reduced this weekly allowance to the sum of fifteen ($15) dollars, and these payments were intermittent and irregular.

While the amounts and the regularity of these payments might be in dispute, as a result of the cross-examination of the complainant, nevertheless, the defendant, although he was present in court, remained motionless in his seat and failed to take the stand to deny these charges. However, it is positive and undisputed that for a period of three weeks prior to the filing of this bill the defendant failed to make any payments whatsoever to the complainant.

The testimony shows the income enjoyed by the defendant was as follows: for 1934 — $4,008.12; for 1935 — $2,698.67; for 1936 — $4,886.12; and practically fifty ($50) dollars a week for the years 1937 and 1938.

The amount contributed by the defendant to the complainant, irregular as it was, remained the same during the fat years as well as the lean years.

This support and maintenance was purely arbitrary on the part of the defendant. His reduction of his support from seventy ($70) dollars or eighty ($80) dollars a week to thirty ($30) dollars a week, and then to fifteen ($15) dollars a week, irregular as it was, undoubtedly was motivated by the complainant’s purchase of the grocery store in Newark, New Jersey.

Under the circumstances of this case, one can reasonably come to the conclusion that the complainant was financially punished for attempting to make a living for herself and her children.

Of course, it is true there is no hard and fast rule in endeavoring to arrive at a just and proper amount a husband should contribute toward the support of his wife and children. Each case must be weighed and judged by its own particular set of circumstances. Even though separated the husband’s duty continues, where he is at fault, and it is his duty to contribute a commensurate share of his earnings, which is proper under a given set of facts.

“The mere fact that the husband fixed a sum of money to be given to his wife for her support and maintenance will not divest the Court of Chancery of the jurisdiction conferred by statute, if this sum is insufficient for her proper support.” Calabrese v. Calabrese, 104 N. J. Eq. 450; 146 Atl. Rep. 330.

The defendant, apparently realizing that it was his duty to support his wife, agreed in writing to pay her the sum of seventeen ($17.50) dollars and fifty cents each week commencing March 20th, 1937. This agreement bears no date, but was filed with the clerk of this court on October 4th, 1937, which date is not only subsequent to the date of the Mexican divorce decree, and subsequent to the date of the defendant’s remarriage, but is also subsequent to the date of the filing of the bill for maintenance in this cause. Notwithstanding these facts the defendant voluntarily agreed to support his wife and children.

The evidence is satisfying and convincing that the defendant not only abandoned the complainant, but refused and neglected to provide for the support and maintenance of herself and her children.

Sometime in the month of May, 1935, the defendant, who had abandoned his wife and children in the year 1932, while they were living in Brooklyn, New York, decided to obtain a Mexican divorce decree against the complainant. The complainant at that time was living in Newark, New Jersey, while the defendant, according to his own testimony when called as a witness by the complainant, resided in the State of New York.

As above stated the residences of the defendant and complainant at this particular time are immaterial. Fried v. Fried, supra.

It is an apparent fact that neither the complainant or defendant ever visited the Republic of Mexico, State of Morelos, at any time, and neither at any time attempted to establish a residence therein.

Sometime during the year 1935 the complainant, while residing in Newark, New Jersey, was served with these Mexican divorce papers printed in the Spanish language, and, although she consulted an attorney she never took any steps to defend the action.

The defendant, who never visited Mexico at any time, was represented in court by one Jose Ventura, who attended to the necessary procedure, and on or about August 1st, 1935, the defendant, through the Civil Court of the State of Morelos, First Judicial District Republic of Mexico, obtained his divorce from the complainant. The grounds were incompatability of character. ' .

It is hardly necessary to say that this state does not recognize incompatability, either of character or temperament, as a cause for divorce.

A foreign decree of divorce is not entitled to recognition under the full faith and credit clause of the United States Constitution, unless the court had jurisdiction over, the subject-matter and both parties. Thompson v. Thompson, 89 N. J. Eq. 70; 103 Atl. Rep. 856.

Undoubtedly, as a sovereign state, Mexico had full power to enact legislation governing residential requirements of its bona fide citizens who seek the aid of its divorce courts. Likewise, to enact laws covering service of process on its own bona fide citizens, and also just what service would be necessary on non-residents, by publication or substituted service, outside its boundary lines, in order to determine jurisdictional requirements covering parties and subject-matter of the suit. These are matters which must be properly conceded to the Mexican authorities in legislating remedies for its bona fide citizens.

But, under the facts in this case, did the Republic of Mexico, through the State of Morelos, have jurisdiction of these parties in their divorce suit?

There is no doubt that the defendant abandoned the complainant while they were living together in the State of New York.

There is no doubt that the defendant was a resident of the State of New York when he commenced his divorce suit in Mexico. He admitted this on the witness stand.

There is no doubt that the complainant was a resident of the State of New Jersey when this Mexican divorce suit was commenced. She was served with the divorce papers while living in Newark, New Jersey.

Apparently, neither the defendant or complainant ever visited Mexico, State of Morelos, much less ever attempted to establish a residence or domicile there.

Assuming that the Republic of Mexico and the State of Morelos, by legislative enactment, decreed that in divorce matters non-residents, those not even having a color or semblance of residence or domicile in Mexico, could, in writing, submit to the jurisdiction of its courts, without establishing any domicile whatsoever, and that this defendant, without leaving the State of New York, forwarded to the Mexican courts, in the State of Morelos, the necessary documents and affidavits in order to comply with its legislative requirements, would the Mexican divorce, in favor of the defendant and against the complainant, be entitled to recognition under the full faith and credit clause of the United States Constitution, and international comity?

Yice-Chanoellox Stevenson, in the case of Lister v. Lister, 86 N. J. Eq. 30 (at p. 35); 97 Atl. Rep. 170, held: “It is, I think, the established law of this state that jurisdiction of a court to grant a divorce from the bond of matrimony cannot rest in the slightest degree upon the consent of either of the parties to the marriage, or of both of them. Any divorce granted by a court in a foreign state in which neither of the parties was a bona fide resident, would, I think, be treated as void by the courts of New Jersey even though neither of the parties was at any time a resident of this state. Of course it is not .necessary to lay down such an extreme proposition in this case because the complainant was domiciled in New Jersey, the matrimonial domicile was here and the defendant’s pretended change of domicile and residence was a fraud and a sham.

“A divorce suit is a suit in rem. The term ‘res’ is one of somewhat wide content and it embraces not only lands and chattels but also the status of individuals, as parent and child, husband and wife, guardian and ward, and also the status of an individual, as a citizen and as a voter. The essential characteristic of an action in rem, I think, is to be found in the power of the state through the decree or judgment of its court to dispose of the subject-matter of the suit, the res, in accordance with the object of the suit, whether that subject-matter be physical property or the status of one or both of the parties litigant. See Amparo Mining Co. v. Fidelity Trust Co., 74 N. J. Eq. 197, 203; 71 Atl. Rep. 605. In actions in personam judgments or decrees do not ipso facto accomplish the objects of the suits in which they are rendered. An execution follows which may be abortive, or proceedings may be taken to compel the defendant to do what he is directed to do by the decree, which proceedings may prove to be inefficacious. Suits for specific performance of contracts to convey real estate, formerly were actions in personam, and the decree only operated upon the person and might never operate to give the complainant the relief which was awarded him by the decree. Subsquent legislation, however, has in many states made such a suit an action in rem or quasi in rem. At present such suits when brought in a foreign state where the land in question does not lie, are purely actions in personaba although if the land lay in the state where the suit was brought the action might be in rem or quasi in rem.

“A decree of divorce operates immediately and absolutely upon the status of the suitor which is the res in the suit. No execution, attachment or contempt proceedings are necessary in order to enforce the decree. From the very nature of the ease, however, a decree of divorce by a court in Nevada, undertaking to dispose of the status in respect of marriage of spouses who are not resident in the state, would .be a decree in the air. A husband and wife domiciled in New Jersey, while passing through the State of Nevada on a railroad train, certainly could not get off at Eeno and immediately give a Nevada court jurisdiction to determine their status in respect of marriage, and dissolve their marriage even if the legislature of Nevada should undertake to give the courts of the state such extraordinary powers. An act of the legislature of a state undertaking to divorce all married persons who pass through the state on a railroad train, would never be recognized by courts of other states as having the slightest trace of validity apart from all objections to such legislative action arising from federal or state constitutions. The State of Nevada is powerless by an act of its legislature, or by a decree of its court to fix the status of a man or woman as married or unmarried, when such man or woman is only transiently eommorant within the borders of the state. The question whether a man is married,- or is a citizen, or is a voter cannot arise in the State of Nevada, unless the man is a bona fide resident of the state, for the reason that it is of the nature of such a status that it pertains to individuals who are permanently located in the place where the status is to be recognized or denied. A spouse eommorant in Nevada but actually resident in New Jersey, has no more power as against the State of New Jersey to carry his status in respect of marriage, from the State of New Jersey into the State of Nevada so as to subject such status to the power and control of the State of Nevada, exercised through its courts by an action quasi in rent, than he has to lift up a tract of land in New Jersey which he owns and transport it to the State of Nevada, so as to subject it to an action quasi in rem in a Nevada court. Where the res is land it is manifest that it cannot be moved out of the state where it lies. When the res consists of chattels it is equally clear that such res can be transported and located successively in very many states, and thus made subject to the power of such states exercised through courts, legislatures or other governmental agents. When the res is a status in respect of marriage, it can be transported in a certain way, viz., by transporting, or in other words, changing the residence of the party whose status is under consideration.”

In Reik v. Reik, 112 N. J. Eq. 234; 163 Atl. Rep. 907, the husband entered Mexico on a tourist card, traveling from place to place, and obtained a decree of divorce in the State of Morelos, First Judicial District.

It was held that he was not a resident of Mexico, but was nothing more than a mere traveler, seeking recreation and a divorce.

The general rule of law is that jurisdiction over the subject-matter of divorce rests upon domicile, or at least residence animo manendi, of at least one of the parties, and it is established by the great weight of authority that, notwithstanding the full faith and credit provision of the Federal Constitution, a decree of divorce rendered in one state may be impeached and denied recognition in another upon the ground that neither of the parties had such domicile or residence at the divorce forum; and this notwithstanding the recitals in the decree or record from the other state of the jurisdictional fact of domicile or residence. Reik v. Reik, 109 N. J. Eq. 615; 158 Atl. Rep. 519.

The first essential for the validity of a foreign decree is that it should be pronounced by a court of competent jurisdiction between the parties who are tona fide subjects of that jurisprudence. Reik v. Reik, supra.

The rule is certainly as strong, if not stronger, when applied to a judgment rendered in a court of a foreign country, toward which no duty is enjoined, and especially where the jurisprudence of such foreign country is in no sense based on common law. Reik v. Reik, supra.

The provision in the statute of Utah authorized her courts to grant divorces to citizens of foreign states and nations who were not, but desired to become, residents of Utah.

One Hood desired to obtain a divorce from his wife, although neither of the parties were at any time residents of the State of Utah. The court held: “The divorce manifestly was granted in violation of the sovereignty and jurisdiction of another state, and in violation of the plainest principles ‘ of international and constitutional law. The provision in the statute of Utah, authorizing her courts to grant divorces to citizens of foreign states and nations, who were not, but desired to become, residents of Utah, was ultra vires, and void. No plainer or more palpable case of the exercise of extraterritorial jurisdiction could exist. Hood was not only not a citizen or resident of the territory, but he did not personally enter the territory so as to give it jurisdiction over him for temporary police purposes.” Hood v. State, 53 Ind. 263.

To the same effect is the case of Litowich v. Litowich, 19 Kan. 451. Neither of the parties had ever resided in Utah; neither of them had ever been there, and neither of them had ever liad any expectation of residing there. Utah divorce held to be void for want of jurisdiction.

It is furthermore convincingly proved that the Mexican divorce decree was fraudulently obtained by misrepresentations going to the grounds of divorce, for the evidence in this case shows that the complainant was abandoned and deserted by the defendant while they were living in Brooklyn, New York. The defendant, although in court, offered no testimony whatsoever to contradict this evidence, and made no effort to take the stand to prove incompatability of character or temperament.

The procedure followed by the defendant in obtaining his divorce against the complainant smacks somewhat of a slot machine device. However, instead of putting a coin in the machine the defendant inserted a stamped envelope, and out popped a divorce.

Eesidence, apparently, means nothing in this mail order system of obtaining divorces. The ruthless spouse can, in one fell swoop, without cause or reason, destroy forever the family hearth and circle, and cast to the winds the love and affection of a surprised and bewildered family.

All law, international or otherwise, compels us to recoil at the thought of such procedure.

Our advanced ideas of civilization, culture, education, and refinement, together with our desires and efforts to promote, nurture, protect and fortify our moral standard of family life, will not permit us to descend to such a level. Hot only should we frown upon such procedure, but we should roundly condemn the same. We are not throw-backs and have no desire to return to the moral gauges of the aborigines, the Indians and the Esquimaux.

The evidence in this case reeks with fraud, palpable, shameless aud brazen.

Therefore, the divorce granted by the Mexican court must be declared to be invalid in this state, through lack of jurisdiction.

I will also advise a decree on the bill for maintenance in favor of the complainant and against the defendant.

The complainant may make application for allowances and counsel fee on the next motion day.


source: Caselaw Access Project

author: Clapp, A. M.

license: Public Domain

text:
    Essex County Orphans Court.
    IN THE MATTER OF THE ESTATE OF ADELAIDE ZELLA GORRELL, DECEASED.
    Decided February 10, 1941.
    For the proponents, Meyer M. Bemel, McCarter, English & Egner (James Ozias), Ralph W. Hyatt and Lindabury, Depue <& Faulks (Emory C. Risley).

   Clapp, A. M.

This application for probate comes before the Orphans Court because of doubts arising on the face of the holographic papers propounded. From the facts in the case five questions emerge.

The first question is whether the testatrix acknowledged the making of her signature. The attestation clause declares she signed the will in the presence of the witnesses. Bnt in fact she did not; for when first she showed them the testamentary papers they saw her signature already thereon. The witnesses substantially agree that her words to them then were that she wanted them “to witness her will.” Out of these words and the circumstances here present, there can be spelled an acknowledgment of the signature. It has been put forward by counsel that the words constituted a declaration that the will was hers. This is true enough, but a declaration, such as that, cannot be taken as the equivalent of an assertion that the component parts of the will — and hence the signature, which she doubtless knew to be an important element of the will — were hers, too. The statute requires an acknowledgment of both the will and the signature; and it is elementary that the latter cannot be dismissed as a superfluity. The English decisions since the Wills act of 1837 (1 Vict. c. 26), under which no publication is required, have hence but a dubious force.

jNor do such words as “This is my will” become an acknowledgment of the signature thereon by virtue of the circumstance here present, that the witnesses saw the signature and well knew it to be hers, and the further circumstance that in all likelihood she had in mind that they recognized it as hers. Those circumstances will indeed serve to fill out a shorthand acknowledgment, but they cannot supply or excuse its omission. Is or can they break the one acknowledgment into the two required by the statute.

But, at least under such circumstances, the words of the testatrix asking the witnesses to sign as witnesses to her will do constitute an acknowledgment of her signature. The word witness signifies commonly to a layman a “person attesting genuineness of signature to document by adding his signature.” Oxford Dictionary. Our statute uses the word similarly, requiring witnesses to the testator’s execution of the will, that is, witnesses to his signature or acknowledgment thereof and to his declaration that the will is his. Lacey v. Dobbs, 63 N. J. Eq. 325; 50 Atl. Rep. 497 (pointing out that some other statutes require witnesses to the will, not to its execution). The request by testatrix to certain persons to act as witnesses to her will constituted then in fact a request that they attest the genuineness of the signature to her will. It need not be decided whether her request of itself was impliedly an assertion that the signature was hers and in her own hand; it is enough to say that the request became plainly such an assertion, when coupled with the fact here that the witnesses saw her signature, and with the likelihood (I find present) that she knew they knew it as hers.

This result follows that of the most recent case in the Prerogative Court, In re Sutterlin’s Will, 98 N. J. Eq. 307; 128 Atl. Rep. 624; affirmed on other grounds, 99 N. J. Eq. 363; 132 Atl. Rep. 115. The conflicting decisions of that court are pointed out in Farley v. Farley, 50 N. J. Eq. 434; 26 Atl. Rep. 178. See In re Manner's Estate, 72 N. J. Eq. 854; 66 Atl. Rep. 583; In re Elmer’s Will, 32 N. J. L. J. 151; In re Laing, 17 Id. 266; In re Buck, 31 Id. 84.

On the second question of the case my opinion is that the first three of the six sheets here propounded as the will may not be admitted to probate. There is no testimonial evidence identifying these three sheets as being among those testatrix declared to be her will. The proof on the question of identification is solely circumstantial. At the time of the execution of the will she had the papers before her folded back, so that all the witnesses saw were the last two sheets which they signed. The argument of proponents is that where several loose sheets are found together in the testator’s custody at his death (as these were found), then although the witnesses only observed the sheets they signed, the presumption is that all the sheets found together formed a part of the will at the time of execution. Gregory v. Queen’s Proctor, 4 N. C. 620; Smith v. Runkle, 97 Atl. Rep. 296, 303; affirmed on this part of the opinion, 86 N. J. Eq. 257; 98 Atl. Rep. 1086. The argument rejects the authority that “loose sheets not connected by their internal sense” with the sheets bearing the testator’s signature are presumptively written after that signature. In re Maginn’s Estate, 278 Pa. 89; 122 Atl. Rep. 264.

However, if there be the presumption argued for by proponents (and no opinion is expressed as to whether or not there is), it is here rebutted by both the text and the physical make-up of the six sheets propounded. In my view the last three sheets propounded, containing paragraphs 4th, 5th, 6th and 7th, witli one or more other sheets containing paragraphs 1st, 2d and 3d of the will, were the sheets properly executed. Thereafter, becoming dissatisfied with the will, testatrix destroyed the sheet (or sheets) containing paragraphs 1st, 2d and 3d and made alterations in the remaining sheets of the will; and then or thereafter she set about, with these remaining sheets before her as a rough basis, to draw a new instrument, going so far as to draft the first three sheets now propounded which contain paragraphs “First,” &c., through “Hinth.” In so doing she changed much of the verbiage of the will she had executed, made possibly some additional gifts, but failed both to name an executor and to execute the new instrument.

A large number of circumstantial factors when taken' together lead to the view I have expressed. They need not be detailed. The will then as executed consisted of the last three of the sheets here propounded and a prior sheet (or sheets) containing paragraphs 1st, 2d and 3d, that is now missing.

The third question of the case is whether testatrix revoked-that missing sheet. Since the will was in her custody during her life, the presumption is that she destroyed the missing sheet with an intention to revoke it. This presumption is but a logical projection of well established principles applying where a will has been in a testator’s custody in his lifetime. If that will cannot be found at his death it is presumed under these principles that he destroyed it animo revocandi; or if it is found, but with a portion of it cancelled, it is presumed that he cancelled that portion with like intent. In re Davis, 127 N. J. Eq. 55; 11 Atl. Rep. (2d) 233; Hillyard v. Wood, 71 N. J. Eq. 214; 63 Atl. Rep. 7.

It may be that the testatrix destroyed the first sheet because she was going to make a new will. Under the extraordinary doctrine of dependent relative revocation, a revocation induced by a misapprehension that a new will would be executed, has been held in blew Jersey to he of no effect. In re Frothingham’s Will, 75 N. J. Eq. 205; 71 Atl. Rep. 695; reversed (on the point that the plan to make a new will in fact was conceived after the revocatory act was performed) Frothingham's Case, 76 N. J. Eq. 331; 74 Atl. Rep. 471. Cf. in general, Smith v. Runkle, 97 Atl. Rep. 296; 98 Atl. Rep. 1085; reversed, Smith v. Haines, 86 N. J. Eq. 224; 98 Atl. Rep. 317; the dicta in the cases of In re Allen's Will, 88 N. J. Eq. 291; 102 Atl. Rep. 147; affirmed, 89 N. J. Eq. 208; 103 Atl. Rep. 1051, and Smock v. Smock, 11 N. J. Eq. 156, and 33 Harvard Law Review 337. The presumption above stated, presuming testatrix’ intention to revoke the first sheet, is therefore rebuttable by proof that her intention proceeded on the misapprehension stated.

However, it has been pointed out by the Court of Errors and Appeals that the doctrine of dependent relative revocation “from its inherent nature is too much exposed to fraud.” Frothingham’s Case, supra. Following the intimations of that case I hold that proof of the concurrence of the plan to make a new will with the intention to revoke, must be strong in order to rebut the presumption of revocation. I use the words “strong proof” to express a standard of proof lying between the standard of a preponderance of proof usual in civil cases and the standard of proof beyond a reasonable doubt. Wigmore on Evidence (3d Ed.) § 2498; but Cf. In re Calef's Will, 109 N. J. Eq. 181; 136 Atl. Rep. 475; affirmed, 111 N. J. Eq. 355; 162 Atl. Rep. 579.

There may be a bare likelihood that testatrix destroyed the first sheet of her executed will because at the time she thought she was going to rewrite the will. Indeed it is quite possible that the destruction of the first sheet and the changes on the next were all parts of the plan to make a new will. Nor does the fact that she preserved the last three sheets and destroyed the first sheet detract substantially from the force of this possibility; for she was rewriting the will and had not yet put in it a clause appointing an executor, a testimonium clause and an attestation clause, for which if she were to use her old will for a form, she would need the last three sheets but not the first one. However, the proof which gives rise to the possibility that she destroyed the first sheet because at the time she planned to execute a new will, though it has some force, cannot be deemed strong; it does not dispose of the very substantial possibility that she may have destroyed the first sheet at some time before she had that plan. The presumption of revocation in my view is therefore unrebutted, and the missing sheet must be regarded as revoked. That view of the case eliminates the question whether a court may probate — if 1 may generalize — three-quarters of a will including the residuary clause (the text of the other quarter being unknown and doubtless affecting the residuary gift) because the testatrix would have preferred that much to none.

Testatrix then revoked the missing sheet. Did she (to proceed to the fourth question) revoke the last three sheets propounded ? She made no alterations or marks in the sixth (the residuary) and subsequent paragraphs of her will. But as stated, the first, second and third paragraphs on the missing sheet are destroyed and the fourth and fifth paragraphs are much changed by cancellations and interlineations. It may be argued that she had sufficiently altered the will as to indicate an intention to revoke it all and that she saved the last three sheets, though she thought them revoked, because as stated above she needed them to copy in her new will the clause appointing an executor and testimonium and attestation clauses. On the other hand, it may be that she intended to keep the remnants of this will operative until she executed the new one.

Before considering whether these three sheets are revoked, it should be noticed that the onus of proving a revocation is on the party asserting it. Throckmorton v. Holt, 180 U. S. 552, 584; Hitchings v. Wood, 2 Moore’s P. C. 355, 447. Indeed it has been said, although I need not go that far, that “where a will has been once regularly made, the presumption of law is strong in its favor and * * * ‘The intention to revoke must be plain and without doubt.'” Johnston v. Johnston, 1 Phill. Ecc. 447, 497; Throckmorton v. Holt, supra. N'o one asserts the revocation here, although some parties object to the probate of only the' last three sheets, seeking probate of all six. The proponents of the last three sheets then make out their prima, facie case unless the preponderance of the evidence bearing on the matter of revocation shows the sheets to be revoked. There are no declarations of the testatrix before the court to disclose her intention for or against revocation of these three sheets; and the mutilated will itself speaks ambiguously. I certainly cannot say that the evidence preponderates in favor of revocation.

The English cases cited and two others that might be added give no assistance on the question as to whether the last three sheets were revoked. See Clarke v. Scripps, 2 Rob. Ecc. 563 (the will was cut in such a way as to indicate a wish to preserve and not to revoke what remained—probate granted); In re Goods of Woodward, L. R. 2, P. & D. 206 (Id.); Leonard v. Leonard (1902), Pac. Rep. 243 (the last three sheets of the will were unintelligible and unworkable as a will without the first two, which had been destroyed — probate refused). The inadequate opinion in Treloar v. Lean, 14 P. D. 49, leaves that case too speculative to be of authority. Leonard v. Leonard, supra, commends Theobald’s two tests, but the instant case falls between the tests. He says, “* * * the question is whether the portion destroyed is so important as to raise the presumption that the rest cannot have been intended to stand without it or whether it is unimportant and independent of the rest of the will.” Theobald on Wills (7th Ed.) 50; 34 Hal. Law, § 121. Clearly, under the second test, the destroying and changing of clauses prior to a residuary clause cannot be presumed to be independent of the residuary clause. For, under the first test, does the preponderance of the evidence here lead to the conclusion that the missing sheet was so important as to raise the presumption that the rest of the will could not have been intended to stand without it.

The last three sheets will therefore be probated. This brings up the final question, namely, whether the interlineations and cancellations as to the legacies in paragraphs 4th and 5th appearing on these sheets are effective. The interlineations may be shortly disposed of; presumptively they were made after execution and must therefore be held of no effect, there being no proof to rebut the presumption. In re Atkinson, 93 N. J. Eq. 139; 115 Atl. Rep. 370.

The cancellations accompanied by interlineations are to be distinguished from those not so accompanied. It is true that all the cancellations must be presumed to have been made by the testatrix animo revocandi, for the will was in her custody during her life and was found with the cancellations on it at her death. Hillyard v. Wood, supra. However, where, as in the case of the pecuniary legacies, an amount is canceled and another amount is inserted in its place in the hand of the testatrix apparently with the same pen and ink that made the cancellations, the presumption is rebutted; for there is strong proof that the cancellations were induced by a mistake. The mistake — a mistake of law — is that at the time she drew the lines of cancellation she thought the interlined amount would be effective. Analyzed, her intention to revoke is held vitiated because it was predicated on a mistake and not (as has been asserted by counsel supported by language from New Jersey cases) because of the failure of a condition precedent. It is to be supposed that she canceled the amounts of the legacies because she thought the interlineations were effective; the cancellations cannot be deemed made on the condition that the interlineations were effective. 33 Harvard Law Review 337. A cancellation posited on such a condition precedent is so involved a conception as not here to be given credence. The cancellations as to the amounts of. these pecuniary legacies have thus no revocative effect.

On the other hand where, as in the case of the cancellations of the legacies as to clothing in the fourth paragraph, there are no interlineations, then the presumption of revocation stands unrebutted; for (as has been decided with regard to the missing first sheet) the evidence is not strong that the making of these cancellations was induced by, and concurrent with, the plan to make a new will. The increase of the residue resulting from these cancellations is in this state effective without the making of a new will or codicil. Collard v. Collard, 67 Atl. Rep. 190; 68 C. J. 815.

The decree will admit to probate the last three sheets of the will. The interlined figures “500” will be omitted and the canceled word “Fifteen” restored in paragraph 4th; and in the same paragraph the canceled words “one had been my mother’s” and “all clothing to share as they desire” will be omitted. The interlined figures “500” in paragraph fifth will be omitted, and the canceled words “One Thousand” in the same paragraph will be restored.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    TRENTON LADIES SICK BENEFIT SOCIETY, PETITIONER, v. CITY OF TRENTON, RESPONDENT.
    Decided February 4, 1941.
    For the petitioner, Rudolph Eisner.

    For the respondent, Louis Josephson (by John A. Brieger).

   Quinn, President.

Petitioner applies for exemption from an assessment for taxation levied by the city of Trenton for the year 1939, upon a structure owned by it, which it is claimed was “actually used” for charitable purposes as of the assessing date, October 1st, 1938. It satisfactorily appears that petitioner has used the building as a home for aged indigent persons, and that all of the prerequisites for exemption set forth in R. S. 54:4-3.6 have been met, if the building can be said to have been so actually used as of October 1st, 1938. An appeal from the assessment to the Mercer County Board of Taxation resulted in a reduction of the assessed valuation, but not in total exemption.

■ Upon the crucial issue of “actual use,” the facts proven at the hearing were that the building was acquired by petitioner sometime prior to October 1st, 1938, for remodeling and conversion into a home for aged indigent persons and the work of preparing the building for such use was fully completed by the middle of September, 1938. There were then resident in the building, as caretakers, a man and wife. The institution was able, ready and willing to accept inmates at that time, but none were actually admitted until November, as the first application for admission was not made until the early part of October.

The taxing district contends that, on October 1st, 1938, the building was not “actually” in use for charitable purposes, as required by the statute, since, upon that date, there was not there resident any object of its charity, and it cites in support of its position, Borough of Longport v. Bamberger (Court of Errors and Appeals, 1917), 91 N. J. L. 330; 102 Atl. Rep. 633, and Holy Angels v. Fort Lee (Supreme Court, 1910), 80 N. J. L. 545. We think these decisions are not precisely applicable to the instant situation. In the Bamberger Case, the building had not been opened for use upon the assessing date, while in the Port Lee case, the structure in question was only in course of construction as of the assessing date. On the other hand, in the case before us, petitioner had, well in advance of the assessing date, a fully operating institution, ready and waiting to expend its charitable endeavors on those who might apply for them. We do not regard it as of consequence that the machinery of charity, operating prior to October 1st, 1938, found no object for its beneficence until shortly after that date. In Seaside Home v. State Board, &c. (Supreme Court, 1922), 98 Id. 110; 118 Atl. Rep. 704, the Supreme Court heard the contention that a charitable summer camp was not entitled to exemption because the summer season had terminated prior to the October 1st preceding, and that there was therefore no actual charitable use as of the assessing date. The contention thus urged was rejected by the court as too narrow and rigid a construction of the statutory requirement. So, too, we think, in the present case.

The judgment of the Mercer County Board of Taxation is reversed, and the assessment in question ordered canceled.


text:
    State Board of Tax Appeals.
    Appeal of 1935—One Parcel. CITY OF JERSEY CITY, PETITIONER, v. SEABOARD TERMINAL AND REFRIGERATION COMPANY, RESPONDENT. Appeal of 1936—Two Parcels. CITY OF JERSEY CITY, PETITIONER, v. SEABOARD TERMINAL AND REFRIGERATION COMPANY, RESPONDENT. Appeals of 1937, 1938 and 1939—Three Parcels. CITY OF JERSEY CITY, PETITIONER, v. SEABOARD TERMINAL AND REFRIGERATION COMPANY, RESPONDENT.
    Decided January 21, 1941.

      For the petitioner, James A. llamill (by Frank P. McCarthy).

    For the respondent, Hobart, Minará & Cooper (by Duane F. Minará and Charles V. Webb, Jr.).

   Quinn, President.

These appeals are taken by the petitioner taxing district from reductions made by the Hudson County Board of Taxation in the assessed valuations of certain structures, hereinafter described in detail, owned by the respondent. There are three buildings involved, as follows:

Combination Storage Warehouse and Freight Station, assessed as Block 361, Lot M 1.

Ice Plant, assessed as Block 395 A, Lot B2AM.

Auction Building, assessed as Block 362, Lot A 3.

The assessments and county board reductions, in respect of these buildings, for the years here in issue, are as follows:

Tear Warehouse Ice Plant Auction Bldg.

1935 Assessment County Board $1,250,800 . 3,125,800

1936 Assessment County Board . 1,250,800 . 3,125,800 $132,500 13 9,500

1937 Assessment . County Board 1.250.800 . 3,125,800 332.500 133.500 $38,800 37.000

3938 Assessment County Board . 1,250,800 3.125.800 132.500 313.500 38.800 37.000

1939 Assessment Countv Board . 1,250,800 . 1,125,800 332.500 113.500 38.800 37.000

These buildings were constructed by respondent in 1937 for the unitary purpose of providing a complete means of handling the receipt, cold storage, and auctioning of the great volume of fruit and vegetables theretofore serviced at the Duane street piers in New York City. This purpose aborted because of the inability of respondent to effectuate the transfer of the market from New York to Jersey City, as originally contemplated, but the buildings are all nevertheless profitably used or rented by respondent. While it is undoubtedly true, as urged by counsel for respondent, that the failure of consummation of the original design for integrated use of these structures has greatly lessened the value which they would otherwise have had, that consideration, of itself, does not aid in the determination of their true value as of the several assessing dates, in the absence of proof as to what the value would have been, had the promoter’s original plans availed, and as to the' degree of diminution in such value attendant upon their disappointment. We must therefore consider solely the evidence adduced bearing upon the true value of the buildings, as actually constituted and used, and determine whether it justifies the several reductions allowed by the county board, in the light of the general knowledge and experience of the board, and of an inspection which we have made of the property.

Since the valuation of improvements only is in issue, our proper inquiry is the extent to which the presence of the improvement on the plot of land has increased the selling or market value of the entire parcel over that of the land, were it vacant. City of Jersey City v. Harborside Warehouse Co., Inc. (State Board), filed simultaneously herewith.

The warehouse building is á ten-story structure measuring 400 by 300 feet, and 137 feet in height. It is erected on land leased by respondent from the Erie Railroad Company for a term of thirty years from'July 31st, 1936, the building and fixtures to revert to the lessor at its expiration. The six upper stories constitute a modern cold storage warehouse, cork insulated, while the lower four stories are designed to serve as a railroad freight house. While there is a considerable amount of floor space in these stories which is rented for dry storage and as business headquarters for grocery and dairy firms, the main purpose of the lower portion of the building is that of a freight terminus. The first and third floors each contain five railroad tracks of fifty car capacity, extending through the center for the entire length of the building, and much of the space on the second, third and fourth floors is taken up by steel bridge trusses supporting the track floors, and for headroom for the tracks. The Erie Railroad occupies the first four stories as a tenant of respondent at an annual rental of $196,628.24, but the proof is to the effect that the dry storage space on these floors is retained by respondent and rented by it to the business firms mentioned above, contrary to the assertion in briefs of counsel for respondent that the latter exercises no control or possession in this part of the building whatever.

The upper six floors are of reinforced concrete construction and tile inside walls, while the exterior of the entire building is of brick.

The testimony adduced by the parties bearing upon the valuation of this building is diversified in approach, but none of it purports to be directed toward the operative factor as to the extent to which the structure has enhanced the true value of the land. We have been able to arrive at certain conclusions in this regard, however, from the proofs offered. The books of the respondent show that the building and its fixtures have been carried at figures varying from $2,991,451.59 in 1935 to $2,688,932.64 in 1938, as compared with the assessed value of $1,250,800. Since our courts have considered book value as a persuasive factor in determining statutory true value (Second National Bank and Trust Company of Red Bank v. State Board of Tax Appeals, 114 N. J. L. 573; 178 Atl. Rep. 96; General Motors Corp. v. State Board of Tax Appeals (Supreme Court, 1940), 124 N. J. L. 212; 11 Atl. Rep. (2d) 314), this evidence weighs in favor of the taxing district’s contention to the effect that the original assessment was not excessive, and this particularly in view of the absence of direct and reliable proof of the selling value of the building. See, infra, as to the nature of respondent’s attempt at proof of this character.

Petitioner’s proofs were primarily based upon depreciated replacement cost of the building, both from the standpoint of cubic foot units and of detailed quantity survey. While proof of this character, dissociated from the selling value of the property, is ordinarily of low probative value (Central Railroad Co. v. State Board (Supreme Court, 1886), 49 N. J. L. 1; 7 Atl. Rep. 306; Turnley v. Elizabeth (Supreme Court, 1908), 76 N. J. L. 42; 68 Atl. Rep. 1094; Schetty v. City of Jersey City (State Board, 1940), 18 N. J. Mis. R. 37; 11 Atl. Rep. (2d) 18), yet where structures of unique character, not usually sold in the real estate market, are involved, as here, resort to consideration of the physical constituents of the building and their cost may be justified. Ranck v. City of Cedar Rapids, 134 Ia. 563; 111 N. W. Rep. 1027. Conclusions thus arrived at are to be qualified, however, by such evidence as is available as to whether a prudent operator would make the expenditure as of the assessing dates. Petitioner’s witnesses arrive at reproduction costs varying between $2,540,000 in 1935 to $3,251,200 in 1939, and at depreciated “sound values” of from $2,159,000 to $2,568,400. The figures as to replacement cost may be compared with an estimate by one of respondent’s witnesses, a construction engineer specializing in refrigerator warehouses, of $1,900,000, as the replacement cost of the upper six stories of. the building only. The lease between Erie Kailroad Company and respondent called for the construction by the tenant of an eight-story warehouse, to cost approximately $3,500,000. In view of the case as an entirety, we have given some weight to petitioner’s proofs as to depreciated cost, but have also taken into account the testimony offered on behalf of respondent that the investment in the building was not economically justified during the tax period here under consideration, because of the failure of the originally contemplated purpose of the enterprise.

The witnesses who testified on behalf of respondent were adduced in an attempt to establish that the assessment on the storage warehouse was in excess of the value reflected by the earning capacity of the enterprise. Evidence of this character can be received and considered only with extreme caution since such earnings are subject to the factor of effectiveness and wisdom of management, and do not partake of the stability and reliability of net income produced by ordinary income producing property, such as stores, dwellings, &c. We stated in the Harborside Warehouse Co., Inc., Case, supra, and we here repeat that the capitalized earnings of a business, as distinguished from the normal rental yield of real estate, measure what the business enterprise is worth, and not what the realty housing the business is worth, although, in some circumstances, the one may throw some light on the other. This, from the proof adduced, is not such a case. Mr. Browning, an officer of the respondent, prepared and counsel introduced in evidence a schedule of the financial operations of the company, for the purpose of showing its net profits and losses during the assessment period. Included as items of deduction were figures of $97,490.49, $238,050.58 and $36,305.74, for the years 1936, 1937 and 1938, respectively, representing losses on loans made b}' the company to its storage customers against the security of commodities stored. In 1932 losses of this character aggregated $2,402,372.38. Whether or not such a practice, known as factoring, is common in the storage warehouse industry, the incidence of losses of this type reflects the highly speculative nature of the particular business enterprise with which we are here concerned, and dissipates any usefulness which a statement of financial operations might have in shedding light upon the true or market value of the structure in which the business is housed. These observations are not to be taken as an endorsement of the propriety of all of the other deductions shown by the statement as taken against gross receipts, but further comment in that connection is deemed unnecessary.

The testimony of respondent’s.witnesses tends, in certain aspects, to support, rather than to militate against the validity of the assessment on the warehouse. Mr. Green, a consulting refrigeration engineer of wide experience, arrived at a sound value of $904,000 for the upper six stories only of the building after estimating the replacement cost, as of October 1st, 1934, at $1,923,840. He regarded the lower four stories, however, as of no value whatsoever, in complete disregard of the fact that these stories produced a rental of some $196,000 annually, from the Erie Railroad, and miscellaneous other revenue from other tenants, as seen hereinabove. Taking the value of the lower four stories into consideration, upon any reasonable capitalization of its rental yield, there would result an increase over Mr. Green’s valuation of the upper six stories, far in excess of the assessment.

Another of respondent’s witnesses, Mr. Kennedy, who has bought and sold cold storage warehouses throughout the East, arrived at a selling value of from fifteen to eighteen cents per cubic foot, for the property. Applying the measurements of the building made by petitioner’s witness, Mr. Robertson, who found a cubic content of 10,160,000 cubic feet, there would result a selling value of $1,518,000 for the building, taking the minimum of fifteen cents per cubic foot, as compared with the assessment of $1,250,800.

The estimates of market value made by respondent’s other witness, Mr. Weisé, must be accorded little weight because he ascribed as a factor, the existence of the limited leasehold interest of respondent in the property and the reversionary interest of the Erie Railroad Company in the building. This factor was undoubted^ of considerable weight, since the leasehold will expire in 1956. The approach of the witness is directed toward the valuation of the leasehold to the business tenanting the building, whereas taxing districts' are entitled to assess the structures at true and full value to a fee owner, and in the amount for which the property could be sold by fair sale, unfettered by leases or other restrictions created by private contract. City of Jersey City v. Harborside Warehouse Co., Inc., supra.

For all of the reasons hereinabove stated, we are of the opinion that the original assessment of $1,250,800 was not in excess of the true value of the storage warehouse for any of the years in question and that the judgments of the Hudson County Board of Taxation reducing the assessments should be reversed, and the said original assessments restored.

We have examined the proofs with respect to the ice house and the auction building and conclude therefrom that the original assessments upon these structures, in the sums, respectively, of $132,500 and $38,800, should likewise be restored for each of the tax years involved herein. The ice house is essential to the operation of the refrigerated section of the storage warehouse, supplying its essential need for refrigeration machinery and in addition has produced ice for public consumption to the extent of sales of approximately $160,000 per year. The auction building is rented to the Erie Eailroad Company at a rental of $25,000 per year.

Judgments in accordance with the foregoing conclusions.


author: John C. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LOUIS PITRILLO, PETITIONER, v. STUBENVOLL TRUCKING CO., RESPONDENT.
    Decided February 20, 1941.
    For the petitioner, Frank D’Ascensio.

    For the respondent, James J. Carroll.

   *******

It also appears from the record that a previous petition had been filed by the same petitioner alleging generally the same allegations and that a compromise settlement was entered into on November 8th, 1937, before Deputy Commissioner John J. Stahl. The record discloses that the order of the deputy commissioner was entitled, determination and rule for judgment. In substance, however, this order was merely a compromise settlement, without a determination of the issues on the merits of the case and I so find it to be. It is necessary for me to state that the order of compromise settlement denies that the petitioner received any injury by accident arising out of and in the course of his employment with the respondent.

The issues presented in the petition filed on November 6th, 1939, were, first, did the petitioner sustain accidental injury within the meaning and contemplation of the Workmen’s Compensation act of this state and, second, if so, what was the extent of his disability.

On behalf of the petitioner, Dr. P. D. Gerard testified that he treated the petitioner from December 29th, 1936, up to October 3d, 1940, at which time the petitioner died from a carcinoma of the biliary tract and that from the time that he first started treatments and until July of 1940, the doctor received history of intermittent bloody urine. It was the opinion of the doctor that the petitioner sustained a laceration of the left kidney. The doctor was also present at an autopsy performed on October 11th, 1940, by Dr. Berardinelli of the Essex county medical examiner’s office a,nd which autopsy, according to the doctor, disclosed at least on visual inspection, two normal kidneys, that the left kidney was cut into sections and revealed on visual observation, no laceration or scarification, nor, any evidence of traumatic injury. The doctor also testified that it was his opinion notwithstanding that the petitioner had sustained a laceration of the left kidney resulting in a disability to that kidney in the amount of twenty-five per cent. The doctor also expressed the opinion that the function of the kidney in the lifetime of the petitioner was normal even though there was a history of bloody urine. The doctor was satisfied that death resulted from causes other than the alleged laceration of the kidney.

Dr. W. Kenneth Wheeler, a urologist, also testified on behalf of the petitioner to the fact .that he had made an examination on March 3d, 1937, at which time he made a diagnosis of a laceration of the left kidney. The doctor also testified that pyelograms showed a normal left kidney and also that cystoscopy failed to show any damage to the left kidney and at that time the doctor concluded that there was no possibility of any permanent disability. At a subsequent examination, even though the laboratory findings were negative, such as pyleograms and cystoscopy, the doctor concluded that permanent disability had resulted to the left kidney by virtue of a laceration and that because of the history of bloody urine, the doctor was forced to this conclusion in spite of the negative laboratory tests. The doctor estimated the disability at twenty-five per cent, of the total and also stated that death was caused by disease entirely disassociated from the kidney.

Mrs. Pitrillo, widow of the petitioner, was also called as a witness on behalf of the petitioner as was Prank D’Ascensio, Esq., attorney for the petitioner. Mrs. Pitrillo testified that after December 29th, 1936, the petitioner had a bloody urine and complaints of pain and weakness when endeavoring to do manual labor.

$$$$$$$

On behalf of the respondent, Dr. Otto Lowy and Dr. Leon Lewis, pathologists, testified that in their respective opinions the petitioner did not sustain any traumatic injury to either kidney and based their conclusions upon the fact that urinalysis made by them were negative for blood, cystoscopy tests were negative and pyelograms showed normal kidneys, plus the fact that the necropsy performed by Dr. Berardinelli showed no evidence of a laceration of either kidney but in fact showed two normal kidneys.

Dr. Berardinelli of the Essex county medical examiner’s office,-testifying on behalf of the respondent, stated that he performed the autopsy on October 11th, 1940, and that death resulted from carcinoma of the biliary tract; that both kidneys measured six by two by two and one-half inches; that the capsules stripped easily each revealing a smooth surface; that the pelves of both kidneys were smooth and normal; that the ureters were not dilated and throughout their course, the inner lining was intact; that there was no evidence of stenosis or scarring and no evidence of trauma of any kind. This doctor concluded from his examination and sectioning of the kidneys that both kidneys were normal.

At the end of the Case the attorney for the respondent moved for a dismissal of the claim petition on the ground, first, that petitioner’s ease was devoid of any competent evidence. upon which to predicate accidental injury under the Compensation act, and second, that the greater weight of the evidence showed that the petitioner had sustained no permanent injury. Considering the first point raised by the respondent’s conclusion, I am of the opinion and do conclude that there is no testimony upon which accidental injury can be predicated. Counsel for the petitioner argues that, because a compromise settlement was effected on November 8th, 1937, wherein the respondent paid from twenty-one and five-sevenths weeks of temporary disability that such payment is an admission of liability. I am forced to disagree, as the cases are manifold that unless there is a hearing on the merits the matter cannot be res adjudicata. Accordingly, it is necessary for me to dismiss the claim petition filed herein for lack of proof of accidental injury within the Compensation act of this state. Since I am dismissing this petition for lack of proof of accident, it is not necessary for me to enter into prolonged comment on the permanent disability alleged.

* ❖ ❖ %t sis &

It is, therefore, * * * ordered that the claim petition filed in the above entitled cause be, and the same is, hereby dismissed and that no costs are to be assessed against the respondent.

John C. Wegner, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ESTHER CIABURRI, WIDOW (MICHAEL CIABURRI), PETITIONER, v. CARL SCHULER, RESPONDENT.
    Decided February 14, 1941.
    For the petitioner, Nathan Rabvnowitz.

    For the respondent, Stanley V. Phares.

   * * * * * * *

One James McKinnon, testifying for the petitioner stated that he is a plasterer and scaffold builder, and knew Michael Ciaburri, who was also a plasterer for six years; that on March 19th, 1940, both he and Ciaburri were employed by the respondent in a new building in A^erona; that on that day, Ciaburri had plastered the ceilings of several rooms of the building and, at about two o’clock in the afternoon, was .engaged in that work in the living room, standing upon a scaffold, built for him, a man of short stature, by the'witness, which scaffold was about thirty inches in height, the ceiling being eight feet above the floor; that at that time Ciaburri held a hawk, described as a flat board with a handle underneath, which contained plaster, in his left hand, and a trowel in his right; that a supply of plaster, from which Ciaburri refilled his hawk, lay upon the floor of the scaffold; that in replenishing his hawk, Ciaburri put ten to eleven pounds of plaster on it; that at about the hour named, the witness, who was then in an adjoining room onty seven or eight feet from Ciaburri, and saw him through an open doorway, heard the latter exclaim that he had a pain in his stomach; and that at that moment Ciaburri had the hawk (then containing plaster) and the trowel in his hands, one arm being in the air. The witness said also that he had worked with Ciaburri before, and knew his health to be good, but never saw him afterwards. On cross-examination, the witness said that the living' room ceiling was six inches above Ciaburri’s head; that the witness had built the scaffold, on which Ciaburri stood, in due relation to the latter’s height; that on said March 19th, 1940, Ciaburri worked from eight A. si. to four-thirty p. si., and plastered five ceilings between those hours; and that on that day, he came from his home — about four miles distant from the Verona building — and returned to it, in a small truck. The witness repeats that when Ciaburri complained of pain, he had hawk and trowel in his hands; and said that he neither dropped them nor fell from the scaffold; and that the witness does not know how much plaster, at that moment, the hawk held. He identified a statement, marked 22-Ü, as signed by him; says he did not read the statement, but thinks an insurance company representative read it to him; and denies that he told the insurance company’s representative that Ciaburri made no complaint.

Recalled, the same witness said that he and Ciaburri had their noon-day lunch in the unfinished Verona building on the day in question; that Ciaburri had sandwiches; and appeared at that hour to be all right.

Respondent offered in evidence, dated April 9th, 1940, a joint statement by Raymond Ford, a plasterer’s helper, and the said James McKinnon, and signed by each of them, which statement is marked in this cause as Exhibit 11-\2. In that statement appears, among other things, the following:

“Mike” (meaning Michael Ciaburri) “did not say that he had any accident to either one of us. He did not make any complaint to either one of us. He did his work all right that day, quit at the regular hour, got dressed by himself and he drove his Chevrolet truck home. He never complained as long as he worked on this job.”

McKinnon explains the statement by saying that the subject-matter in his mind was that of an accident — as a fall, and that no “accident,” as he understood the term had befallen Ciaburri, and there had been no attendant outcry. I found no necessary repugnancy between the joint statement— at best a summary or digest of what, not one, but two, men were understood by the investigator to have said — and McKinnon’s sworn testimony; and whether there be a necessary contradiction or not, I believe and find his oral testimony to be complete and true.

Esther Ciaburri, the petitioner, testified that she is the widow of Michael Ciaburri, and lived with and was supported by him; that he had long had a lump on his right side, and wore a belt many years; that he had worked steadily for a week before his death, and was in good health, and was so on the last morning he went 'to work; that on the day in question, he returned home in his truck at about four-thirty r. ii., and had his hand on his side and seemed very sick, and immediately lay down; that the witness gave him water to drink; that the lump in his right side was greatly enlarged— the size of a grapefruit — the witness’ hand could not cover it- — it was twice its former size; that his condition grew worse. Dr. Kinney was called in; about eight o’clock in the evening, a man from the insurance company called, and got a signed statement from him, in the presence of his sons.

On cross-examination, this witness testified that for about six months preceding his last employment, her husband, the decedent, had been out of work, and was well during the whole of the period, excepting a slight cold during one week; that since an operation, many years ago, he had worn, while at work, a padded belt, and had a lump on his right side; -that on the day in question, he left home at seven-thirty A. m. for work, driving a Chevrolet truck, and returned sick before five p. at., holding one hand against his side, and steering his truck with the other; that he vomited twice when Dr. Kinney called. She repeats that his lump was double its former size.

Arthur Ciaburri testified that he lives with his mother (the petitioner), and was present when the insurance man took his father’s statement. There was a stipulation by counsel that his testimony, if fully adduced, would be corroborative of that of the petitioner. Examined by respondent’s counsel, he said that he had read and initialed his father’s statement (Exhibit P-1).

When the witness, Edward Ciaburri, was sworn, counsel for the respective parties stipulated that his testimony would support his mother’s (the petitioner’s), and corroborate his brother, Arthur.

Dr. B. O. Kinney testified that he had practiced his profession in Little Balls, New Jersey, for twenty-four years, and about nine p. m. of March 19th, 1940, attended Michael Ciaburri at the latter’s home in Little Balls; and found him confined to his bed with his wife and two sons present; that he received a history of the patient’s case from the patient, which history ran to the effect that, while plastering during that day from a platform, he felt a pain in his side, and on lowering or taking off his trousers, saw a mass on his abdomen; that twenty years ago, he had a hernia after an appendix operation; that the hernia was as large as a walnut, and that he had since worn a flat belt; that the witness examined his right side in the region of the scar, and found a strangulated hernia five or six inches long of ventral origin; that the witness knew by the palpitation, by the tenderness on pressure, that it was of recent origin; that the patient was in acute pain and vomited — results and symptoms of the recent strangulated hernia; that the witness gave him an opiate to ease his pain, and ordered an operation; that he knew the respondent, Schuler, and notified him, by telephone, of the strangulated hernia; that Schuler asked the witness to notify his insurance carrier; and that the witness complied by calling the Lumbermen’s Mutual Casualty Company, and told it of Ciaburri’s accident. Question of notice was not in dispute, respondent’s attorney admitting compliance with statutory provisions. The witness further testified that he saw Ciaburri on the following morning (March 20th); that Ciaburri’s work for respondent was the contributing cause of his strangulated hernia; that his work caused abdominal pressure; that there had to be protrusion somewhere, and that the hernia resulted. The witness said that he did not operate on Ciaburri.

On cross-examination, the witness testified that he had long been the Ciaburri family doctor, and that he is a general practitioner; that when he saw Ciaburri on the evening of March 19th, 1940, Ciaburri was confined to bed and conscious and rational; he repeated the history he obtained from Ciaburri— that the latter was in the act of plastering when he was seized by pain; that he had had a hernia on the right side twenty years before; that the witness made his diagnosis of strangulated hernia when he first saw Ciaburri on the night of March 19th; that his opinion was based on Ciaburri’s vomiting and pains; that strangulation brings on vomiting; that the old hernia inconvenienced Ciaburri but little; that Ciaburri said he wore a belt on account of it; that the hernia observed by the witness was an aggravation of the old hernia, and was definitely a strangulated hernia of recent origin; Ciaburri’s vomiting was a sign of the freshness of it; and so his pain and the observed mass; that the witness saw Ciaburri vomit during his call, and was informed that Ciaburri had vomited before his call. The witness further testified that the lifting of the mortar board and the over-head reaching caused abdominal pressure and then caused the strangulation; that Ciaburri told him that, while doing his work, he reached overhead, and got pain in the act, 'and had continued pain when he quit work and observed the mass while in the basement of the house in which he was working. On redirect examination, he described the length of the mass as before, and again said that the strangulated hernia was an aggravation of the old hernia; and that the raising of the arm causes abdominal pressure.

Dr. Gerald Feigen testified that he is a surgeon, and has operated on all kinds of hernise; he described a strangulated hernia; and said that a ventral hernia is subject to strangulation; that when strangulation occurs, vomiting follows within four to twelve hours. Answering a hypothetical question, he said that Ciaburri’s work caused the strangulated hernia; that the act of overhead plastering causes abdominal pressure; that the earlier hernia was aggravated by Ciabufri’s plastering and produced the strangulation; that his vomiting was caused by the cutting down of the supply of blood; that as the descent progresses, it produces pressure and cuts off the blood supply; and that the effort of plastering — in stretching, reaching and bending was sufficient to cause the abdominal pressure. Upon cross-examination, the witness stated that, in his opinion, in Ciaburri’s case, the strangulation started at four or five o’clock in the afternoon; he said that when an aggravation of an old hernia occurs, it is not necessary to quit work at once; in the event of a new hernia, immediate cessation from labor may occur; that Ciaburri’s stretching and bending in his work caused pressure on the abdominal wall; that when Ciaburri felt something descending, a change was occurring in the abdominal region— the hernia was enlarging as from the size of a walnut to that of a lemon; that from the facts assumed, the change occurred about two p. m. on the afternoon in question.

Dr. Briggs first qualified as an expert and, in answer to a hypothetical question, declared that Ciaburri’s work in plastering aggravated his former condition; that his exertion caused the dropping of the hernia through abdominal pressure, and effected the strangulated hernia; that the holding of the hawk and trowel could well have caused sufficient pressure on his abdomen; that his very expression of pain showed that the descent had started; that the descent takes time — ■ from two p. at. to nine p. m. being a fair time; it is a variable matter, not a thing of fixed duration; he could have continued at his toil after the beginning of the descent, and was not obliged to stop at once.

On cross-examination, Dr. Briggs distinguished between the pressure resulting from the putting on the brakes of a car and the abdominal pressure produced by the effort of lifting a hawk and trowel — that stretching above one’s head is quite a different kind of effort. He added that the expression of pain denoted the start of the descent, but his continuation in his work was not uncommon; he declared that the man’s employment produced his trouble.

Dr. Siegal testified that, at the hospital, he was Ciaburri’s attending physician and took his history on his admission, and assisted in his operation; and that in his, the surgeon’s opinion, Ciaburri’s employment caused his strangulated hernia.

Raymond Ford testified that he worked for respondent on March 19th, 1940, and mixed mortar for Ciaburri in the door yard of the Verona house, and carried it inside for Ciaburri’s use; that he knew Ciaburri, and both quit work at four-thirty on the day in question; that he noticed nothing unusual about Ciaburri, nor observed his appearance when he drove off towards home; that he was present when McKinnon gave the insurance investigator a statement, and did not hear McKinnon speak of an exclamation by Ciaburri. On cross-examination he said that he was still in respondent’s employment; that on the 19th of March, 1940, he kept for the most part twenty to thirty feet out in the yard; that Ciaburri would fill his hawk with twelve to thirteen pounds of plaster; that he, Ciaburri, would sweep the ceiling, trowel in one hand and hawk in the other; that he worked swiftly, covering eighteen inches in one sweep; that he did not see Ciaburri go down into the cellar, nor lift the hawk about his shoulder.

Prank Schengert, the investigator of the insurance carrier, testified that he took McKinnon’s statement, with Pord present, and that the witness set down what was said; and the alleged statement was admitted in evidence. On cross-examination, the witness further said that Dr. Kinney notified the insurance carrier of Giaburri’s injury and operation; that the witness saw Oiaburri on March 20th, 1940, in bed; that Oiaburri told him that he had had no accident, but a pain, while plastering the ceiling, at two or two-thirty p. m. on March 19th, 1940; he said that he got pain in his right side; the witness saw a large lump on Oiaburri and supposed it to be a hernia. The witness further said that Oiaburri had informed Jrim that he had changed his clothes before going home.

Dr. Koppel, testifying for the respondent, found no causal relation between Ciaburri’s work and death; the condition of the hernia was not affected by his toil; heavy exertion may aggravate a hernia — as the raising of heavy objects; when hernia descends, there will 'be pain; strangulation is the cutting off of blood supply; the time is variable; but prostration follows strangulation.

Dr. Olay testified that he took Ciaburri’s history' — a ventral hernia, and for a score of years before, a pre-existing hernia, which strain or exertion may aggravate; that the witness operated on Oiaburri on March 22d, 1940. In his opinion, the man’s employment had nothing to do with his death; that there was no collapse in his case; that it takes six to eight hours for necrosis to occur; that there may be a descent without pain; and if the mass gets too large for the ring, then pain starts and collapse follows.

The hospital records were introduced in evidence, without objection.

The statement of decedent was produced by counsel for respondent on notice, without any objection but only with a warning by respondent’s counsel that petitioner, if her counsel should inspect it, would be bound by it. Petitioner’s counsel inspected it, and still without objection, offered it.

In the hospital record, in the testimony of James McKinnon, in the expert evidence produced on behalf of the petitioner, in many circumstances corroborative of her case, I find and determine, after a careful comparison of all the competent evidence, excluding all hearsay, that on March 19th, 1940, Michael Ciaburri met with an accident and injury arising out of and in the course of his employment; that respondent received due notice of the accident and injury; see Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, that Ciaburri died as the result of his accident and injury on March 24th, 1940; and that the petitioner is his widow and sole dependent.

It is, therefore, * * * ordered that judgment be and same is hereby entered in favor of the petitioner and against the respondent.

❖ ❖ ❖ * & ^ ^

John C. Wegner, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SARAH ROBINSON, PETITIONER, v. ABE SACHAROW AND RONA SACHAROW, RESPONDENTS.
    Decided February 20, 1941.
    Por the petitioner, Gelizeiler ■& Honigfeld.

    Por the respondents, A. Robert Rothbard.

   In the case sub judice petitioner alleges that she was employed by Abe and Eona Saeharow as a domestic.

That on or about April 22d, 1940, while descending the cellar steps, in order to do some laundry, she fell down the stairs and suffered an injury, which consisted of a fracture of the left leg.

An answer was filed in which respondents deny that the petitioner engaged in the scope of her employment at the time the alleged accident occurred.

H; ^ H< • ^ Hi Hi

Petitioner testified as to her employment with the respondents, her duties, and that she received $6 per week which included carfare and also received one mid-day meal. She described the accident as set forth in the petition. She further testified to subsequent events including treatment and her present complaints and disability.

Immediately following the accident she was taken by ambulance to the Mountainside Hospital, her leg placed in a cast and she was then taken home.

Dr. Darden testified to treatments rendered by him from the day of the accident, April 22d, 1940, to August 4th, 1940. He estimated permanent disability as thirty-three and one-third per cent, of the left foot. There is no dispute as to disability, as respondent’s attorney introduced in evidence report of Dr. Jerome Gelb, who examined petitioner December 14th, 1940,, and coincided with the estimate of Dr. Darden.

Mrs. Ilona Sacharow testified that she employed the petitioner, paid her and gave her instructions as to the work to be done. She admitted notice of the accident. In so far as defense was concerned there was no direct testimony to contradict the testimony of the petitioner.

I am, therefore, holding that petitioner met with an accident arising out of and in the course of her employment.

The question now to be determined is which of the two respondents named is liable.

In the briefs filed by both attorneys reference is made to the case of Auten v. Johnston, 115 N. J. L. 71; 178 Atl. Rep. 187, which holds as follows:

“A secondary question is whether there was a joint undertaking by respondents. The bureau found that there was; the Common Pleas concluded that Mrs. Johnston was not a party to the contract of hiring. We resolve this question of fact in favor of the latter. The apposite rule is that, to impose such an obligation upon the wife in a situation like this, there must be either an express contract to pay out of her own estate, or circumstances clearly showing the assumption of individual liability on her part exclusive of that of her husband. The presumption is that, in the employment of a house servant, the wife acts as the agent of her husband; to fix upon her such a contractual liability, it must affirmatively appear that she hired the servants on her own individual credit. Mooney v. McMahon, 83 N. J. L. 120; 83 Atl. Rep. 504; Riley v. Wortendyke, Ex’r, 80 N. J. L. 663; 77 Atl. Rep. 1035; Feiner v. Boynton, 73 N. J. L. 136; 62 Atl. Rep. 420; Wilson v. Herbert, 41 N. J. L. 454; 32 Am. Rep. 234. This principle is rooted in the obligation of the husband to provide for the care, maintenance, and support of his wife. ‘The duty of providing maintenance and support, for the family still devolves on the husband, and the wife may discharge her duties in the management of his domestic affairs without incurring personal responsibility. The purpose and comfort of married life would be defeated if the wife had not authority to hire servants and purchase ■articles necessary for domestic use, and for this purpose the law regards her as the agent of the husband. 1 Pars. on Cont. 347. And it is of the greatest importance to society that the wife should be allowed to perform her duties in the management of the husband’s domestic affairs as his agent, without liability on her part, on contracts made by her in the line of her duties, unless she voluntarily assumes a personal responsibility.’ Wilson v. Herbert, supra.

But the facts in the ease sub judice are to the contrary.

Bona Saeharow testified that she was the proprietor of the butcher shop located at 135 La Trance avenue. That she employed her husband and paid him an average salary of $35 per week and further that the store is being operated at a loss. She further testified as aforementioned that she hired the petitioner and paid her.

In this instance, from the facts, the wife is supporting the husband. She conducts the business, pays him as an employe and pays the bills. She engaged and paid the servants on her own individual credit.

It is, therefore, * * * ordered that judgment be and the same is hereby entered in favor of the petitioner and against the respondent Bona Saeharow.

$$$$$$$

John C. Wegner, Deputy Commissioner.