text:
    THE NATIONAL BANK OF NEW JERSEY, A CORPORATION ORGANIZED UNDER THE BANKING LAWS OF THE UNITED STATES, APPELLANT (PROSECUTOR), v. DIVISION OF TAX APPEALS IN THE STATE DEPARTMENT OF TAXATION AND FINANCE, ET AL., RESPONDENTS (DEFENDANTS).
    Superior Court of New Jersey Appellate Division
    Argued December 6, 1948
    Decided February 23, 1949.

      Before Judges McGeehan, Donges and Colie.

      Mr. Irving Riker argued the cause for appellant (Mr. Clark C. Vogel on the brief; Messrs. Riker, Emery & Danzig, attorneys).

      Mr. John T. Keefe argued the cause for respondents (Mr. Paul W. Ewing, attorney of respondent City of New Brunswick; Mr. Edmund A. Hayes, attorney of respondent County of Middlesex).
   The opinion of the court was delivered by

McGeehan, S. J. A. D.

A writ of certiorari was allowed by the former Supreme Court to review a judgment of the Division of Tax -Appeals of the- Department of Taxation and Finance affirming the assessment of $689,705.14 levied for the year 1946 on the shares of capital stock of the National Bank of New Jersey.

In 1934, following the national bank holiday, the bank was recapitalized. Its articles of association were amended to provide for 50,000 shares of preferred stock “A”, each share having a par and retireable value of $15, and 10,000 shares of preferred stock “B”, each share having a par and retireable value of $50, and these shares were issued. All the preferred stock “A” was purchased by the Reconstruction Finance Corporation at its par and retireable value of $15 per share, and all the preferred stock “B” was purchased by the directors of the bank. The result was that $1,250,000 was paid into the capital of the bank for the purchase of these preferred shares, and this additional capital was reflected immediately in the statement of the bank’s condition by including “par value preferred ‘A’ stock $750,000, par value preferred ‘B’ stock $500,000.”

In 1937 bank examiners from the office of the Comptroller of the Currency insisted that the bank charge off its books certain assets of the bank which had resulted in losses. The capital structure of the bank at that time was such that a charge-off of these assets would have resulted in a serious impairment of the stated capital. The Reconstruction Finance Corporation consented to a one-half reduction of the par value of the bank’s preferred stock, provided that the questionable assets were charged off the books of the bank and that the dividend and liquidation or dissolution preferences of the preferred stock remained unchanged. Accordingly, the articles of association of the bank were amended on January 12, 1937, to reduce 'the par value of the preferred “A” stock from $15 a share to $7.50 a share, and to reduce the par value of the preferred “B” stock from $50 a share to $25 a share. In all other respects the provisions of the 1934 amendments to the articles of association relating to 'the preferred stock remained unchanged. As a result, the aggregate retireable value of both classes of preferred stock became equal to double the aggregate par value thereof as shown in the amended articles and as shown on the books of the bank. Between August 1937 and December 31, 1945, the bank retired preferred stock to the extent that on December 31, 1945, the outstanding aggregate par value of preferred stock “A” amounted to $150,000 and of preferred stock “B” to $168,750. In all cases the preferred stock of both classes was retired at its retireable value, namely, double its par value.

As of January 1, 1946, the bank carried on its books, under liabilities, the following:

Capital

Par value preferred stock “A” $150,000.00

Par value preferred stock “B” 168,750.00

Par value common stock...... 550,000.00

Surplus ........................ 850,000.00

Undivided profits ........... 142,595.14

Total .............. $1,361,345.14

And in the return filed by the bank pursuant to R. S. 54:9-5, the same setup for capital, surplus and undivided profits was shown. No item was carried on the books of the company under liabilities representing the difference between the par value of the preferred stock and its retireable value, nor was any retirement fund or reserve for the redemption of all or any part of the preferred stock shown on the books of the bank or on the statement required by the statute.

The County Board and the Division of Tax Appeals, in determining the tax to be imposed on shares of the common stock of the bank, deducted the aggregate par value of the preferred stock of the bank as shown on its books, from the amount of the bank’s capital, surplus and undivided profits, in ascertaining the true value of its common stock. The bank contends that the retireable value of the preferred stock, which is double the par value, should have been deducted, rather that the par value, in determining the true value of the common stock under R. S. 54:9-4, for the purpose of assessing the bank stock tax for the year 1946.

R. S. 54:9-2 provides: “The shares of the common capital stock of banks * * * shall be assessed and taxed according to their true value, to be determined in accordance with the provisions of sections 54:9-4 and 54:9-9 of this title.”

R. S. 54:9-4 provides: “The value of each share of common stock of each bank shall be ascertained and determined by-adding the amount of its capital, surplus and undivided profits and deducting therefrom * * * an amount equal to the aggregate par or retireable value of all classes of the issued and outstanding preferred stock of such bank * * * it being the intention that the shares of preferred stock and the capital represented thereby shall not be assessed or taxed; nor shall there be assessed or taxed any stock issued to' former unpaid depositors of the bank while held to evidence their right to repayment under any plan of reopening or rehabitation approved by the Commissioner of Banking and Insurance. * * * ” (The only change made in R. S. 54:9-4 by the amendment, P. L. 1940, c. 69, was the addition of the italicized matter.)

R. S. 54:9-9 relates to the duties of the County Tax Board and refers back to R. S. 54:9-4 for the determination of common stock value.

The 1940 amendment of R. S. 54:9-4 followed the decision in Clinton Trust Co. v. State Board of Tax Appeals, 124 N. J. L. 245 (Sup. Ct. 1940), aff’d 125 N. J. L. 275 (E. & A. 1940). Iri tire Clinton Trust case, the bank carried in its annual statement of liabilities an item of $526,979.13, representing the gross par value of certain preferred stock, and another item of identical amount, representing the additional moneys to make up the sum which would be necessary in order to take up the preferred stock. In that case the taxing authorities deducted the gross par. value of the preferred stock as shown on the books of the bank, but refused to give any deduction for the additional item of $526,979.13 in its annual statement of liabilities, representing the additional moneys to make up the sum which would be necessary to retire the preferred stock at its retireable value, which was double the par value. The Clinton Trust contended that it was entitled to this further deduction of $526,979.13, but the judgment below was affirmed.

Since the decision in the Clinton Trust case, the only change made in the law applicable to this case is the addition to R. S. 54:9-4, by the 1940 amendment, of the italicized words in “deducting therefrom an amount equal to the aggregate par or retircabla value of all classes of the issued and outstanding preferred stock of such bank.” The deduction authorized by the 1940 amendment is stated in the alternative. It is obvious that the Legislature intended that in some cases the par value, and in other cases the retireable value, should be deducted, and equally obvious that the Legislature did not intend that in every case in which par value and retireable value differed, the retireable value should be deducted. When, then, should retire-able value be deducted?

When we look to the old law, the mischief, and the remedy, we find the mischief to be the situation disclosed in the Clinton Trust case. Without an amendment specifically permitting the deduction of retireable value, a bank which carried on its books not only the par value of its preferred stock, but also an inviolate reserve to allow redemption at the retireable value, might be denied any deduction above the par value. We conclude, therefore, that the effect of the 1940 amendment to R. S. 54:9-4 is to permit a deduction for retireable value only when, in addition to the par value carried as a liability, there is also carried as a liability an inviolate reserve for the redemption of the whole or part of the preferred stock at its retire-able value, and the deduction of retireable value cannot exceed the total of the stated par value of the preferred stock plus such reserve. Compare Clinton Trust Co. v. State Board of Tax Appeals, above. No reserve of any kind for the redemption of preferred stock was set up and carried by this bank, and therefore no deduction in excess of the gross par value may be made by virtue of the 1940 amendment to R. S. 54:9-4.

The bank argues that the proofs lacking in the Clinton Truest case are before the court in this case; calling attention to the proofs concerning the liquidation and dissolution preference and the mandatory redemption scheme. Even if so, it entirely overlooks the fact that in the Clinton Trust case the bank had carried in its statement of liabilities not only the gross par value of its preferred stock, but also another liability in the identical amount, representing the additional moneys needed to make up the sum -which would be necessary to retire the preferred stock at its retireable value, twice its par value. In this case the bank carried on its books only the gross par value of its preferred stock. Therefore, this important proof which was before the court in the Clinton Trust case is lacking here.

The bank argues, further, that the capital invested in 1934 equaled $15 for each share of preferred “A” and $50 for each share of preferred “B” and therefore it is entitled for the 1946 tax year to a deduction of a similar amount for each outstanding share of preferred “A” and preferred “B”. This claim is based upon the following language of R. S. 54:9-4: “It being the intention that the shares of preferred stock and the capital represented thereby shall not be assessed or taxed” and the construction of this -language in the Clinton Trust case that it carries “the unmistakable direction that the -statute shall not be so interpreted as to result in an assessment of tax upon the capital represented by the preferred stock.” • The bank admits it could not continue in business in 1937 unless the capital investment represented 'by the preferred stock should be reduced; that by amendment to its articles of association it was so reduced, and that each share of preferred “A” par value $15 and of preferred “B” par value $50 was exchanged for one share of new preferred stock “A” par value $7.50 and one share of preferred stock “B” par value $25, respectively. Yet, it claims that the “capital investment represented by the preferred stock,” for the purpose of securing a reduction in tax, continued to be the higher amount contributed for the old but exchanged preferred stock, even though no reserve was carried on its books for redemption of the new preferred stock at the higher amount. Under the Federal statutes applicable to this bank, “If any part of the capital of a national bank * * * consists of preferred stock, the determination of whether or not the capital of such bank is impaired and the amount of such impairment shall be based upon the par value of its stock even though the amount which the holders of such preferred stock shall be entitled to receive in the event of retirement or liquidation shall be in excess of the par value of such preferred stock.” (U. S. C. A. Tit. 12, Sec. 51b-1). The purpose of our laws distinguishing between capital and surplus would be subverted if we allowed such a claim. As was said in Second National Bank, etc. v. State Board of Tax Appeals, 114 N. J. L. 573 (Sup. Ct. 1935), “No bank can value its assets for the purpose of carrying on business at one figure and then seek the reduction of taxes by substituting figures which, if submitted elsewhere, would result in the loss of its franchise.”

The judgment under review is affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    ANTHONY GUSSIE, PLAINTIFF-APPELLANT, v. PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 14, 1949
    Decided February 25, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Louis J. Greenberg argued the cause for the plaintiff-appellant {Mr. Samuel M. Cole, attorney).

      Mr. Gerald F. O’Mara argued the cause for the defendant-respondent {Messrs. O’Mara, Conway and Schwna'tm, attorneys).
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

This is an appeal from an order of the Hudson County Court dismissing the plaintiff’s complaint under the Federal Employers’ Liability Act and entering judgment for the defendant.

The plaintiff, Anthony Gussie, was a freight brakeman employed in interstate commerce by the defendant Pennsylvania Railroad Company. On September 6, 1944, he Was on a box car located on a car float of 450 tons which was lying in the navigable waters of the Hudson River. He alleges that while he was assisting in the unloading of freight cars he had given a back-up signal to the engineer on the locomotive located off the car float and that the locomotive suddenly pulled forward hurling him from the roof of the box car to the float and seriously injuring him. He filed a complaint to recover for personal injuries based upon the Federal Employers’ Liability Act (45 U. S. C. A. Sec. 51 et seq.). The defendant moved to dismiss the complaint on the ground that the plaintiff’s exclusive remedy is under the Longshoremen’s and Harbor Workers’ Compensation Act (33 U. S. C. A. Sec. 901 et seq.). The motion was granted and judgment was entered for the defendant. On the appeal the parties have stipulated the facts. In addition, they concede that the circumstances preclude recovery under any State compensation law. [Cf. Hardt v. Cunningham, 136 N. J. L. 137 (Sup. Ct. 1947)]; that if the plaintiff is subject to the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act his remedy thereunder is exclusive (33 U. S. C. A. Sec. 905); and that if the dismissal of the plaintiff’s complaint is sustained he will not be barred from recovery under said Act (33 U. S. C. A. Sec. 913d). It is the plaintiff’s contention, however, that (1) the Act is not applicable to railroad employees, and (2) that in any event, the plaintiff should be deemed excluded therefrom by the provisions of the 1939 amendment to the Federal Employers’ Liability Act (35 Stat. 65, 45 U. S. C. A. Sec. 51).

Holdings adverse to the plaintiff’s first contention are found in Nogueira v. New York, N. H. and H. R. Co., 281 U. S. 128, 74 L. Ed. 754 (1930); Buren v. Southern Pac. Co., 50 F. 2d 407 (C. C. A. 9th 1931) cert. den. 284 U. S. 638, 76 L. Ed. 543 (1931); and Richardson v. Central R. Co. of New Jersey, 233 App. Div. 603, 253 N. Y. S. 789 (1931). In the Nogueira case the plaintiff was employed by the defendant railroad company as a freight handler and was injured while working on a 500 ton car float lying in navigable waters at New York Harbor. In an opinion by Chief Justice Hughes, the Supreme Court, after pointing out that the general scheme of the Longshoremen’s and Harbor Workers’ Compensation Act was to afford compensation to such employees as are subject to its terms “for disability or death resulting from injury occurring upon the navigable waters of the United States” held that the Act encompassed the plaintiff and afforded an exclusive remedy to him. In answer to the suggestion that the Act should be deemed inapplicable to employees of railroad companies, the court noted that although several exceptions aré expressed in the Act, railroad employees are not excluded; indeed, an express exception of railroad employees which was contained in the Bill as it was adopted in the Senate was omitted from the Act as it finally passed. In the Burén case the plaintiff was employed by the defendant railroad company as a brakeman and was injured while on a ferry boat transporting a train which was about to be run off the boat at the point of destination. The court held that the Nogueira case was controlling and found no significance in the fact that the ordinary duties of the plaintiff were performed upon land since his duties also included work on navigable waters and he was injured while performing the latter. In the Richwdson case the plaintiff, a yard brakeman employed by the defendant railroad company, was injured when he was thrown from one of the freight cars on a car float lying in navigable waters, allegedly by reason of the negligent operation of the locomotive on land. The court found that the locus of the accident was controlling and that under the Nogueira and Burén cases the plaintiff’s exclusive remedy was within the Longshoremen’s and Harbor Workers’ Compensation Act. Since we are dealing with the meaning and application of a federal statute the Supreme Court’s construction thereof in the Nogueira case is binding upon us. We believe that the rulings tnere made were properly applied in the Burén and Richardson cases to circumstances substantially indistinguishable from the case before us and that plaintiff’s first contention to the contrary is without merit.

The plaintiff’s second contention is that the 1939 amendment of the Federal Employers’ Liability Act, enacted subsequent to the above cited cases, should be construed to have the effect of excluding railroad employees from the Longshoremen’s and Harbor Workers’ Compensation Act. Prior to the 1939 amendment the Federal Employers’ Liability Act was confined to cases where the employee at the time of the injury was actually engaged in interstate transportation or in work so closely related as to be deemed part thereof. See McFadden v. Pennsylvania R. Co., 130 N. J. L. 601 (Sup. Ct. 1943,); Fury v. N. Y. and Long Branch R. Co., 127 N. J L. 354 (E. & A. 1941). As a result, practical difficulties arose since oftentimes the parties could not determine with any degree of certainty whether the employee had, when the accident occurred, been engaged in interstate commerce within the Federal Employers’ Liability Act or in intrastate commerce within a State compensation act. To reduce these difficulties the 1939 amendment enlarged the scope of the Federal Employers’ Liability Act to include all employees, whose duties, in whole or in part, are in furtherance of interstate commerce or “in any way directly or closely and substantially affect such commerce”. See Shelton v. Thomson, 148 F. 2d 1 (C. C. A. 7th 1945); Ermin v. Pennsylvania R. Co., 36 F. Sapp. 936 (D. N. Y. 1941). There is nothing whatever in the language of the 1939 amendment which can properly be said to have any bearing on injuries occurring on vessels in navigable waters to employees within the contemplation of the Longshoremen’s and Harbor Workers’ Compensation Act. When the 1939 amendment was passed the doctrine of the Nogueira case had been long recognized and consistently followed. Congress could readily have terminated its effect if it so chose, but it has remained silent. We are not at liberty to accomplish that result by the strained construction which the plaintiff seeks of a statutory amendment unrelated both in letter and purpose.

The judgment below is affirmed.


author: Donges, J. A. D.

text:
    IN THE MATTER OF THE ESTATE OF HATTIE E. ABBOTT, DECEASED.
    Superior Court of New Jersey-Appellate Division
    Argued January 31, 1949
    Decided February 28, 1949.

      Before Judges McGeehan, Donges and Colie.

      Mr. George C. Winne, argued the cause for appellant (Mr. George C. Winne, attorney).

      Mr. John J. Manley, argued the cause for respondent (Mr. John J. Manley, attorney).
   The opinion of the court was delivered by

Donges, J. A. D.

By order dated July 21st, 1948, the Orphans’ Court of Hudson County denied probate of a document dated November 8th, 1933, purporting to be the last will and testament of one Hattie E. Abbott, deceased. A caveat had theretofore been filed with the Surrogate, the grounds of objection being (1) undue influence, and (2) want of due execution. At the hearing before Judge Stanton the first ground was abandoned. On the second ground, the learned Judge oí the Orphans’ Court found against the proponent. In this determination we concur.

The instrument offered for probate was apparently written in the hand of decedent; it contains no attestation clause. Tc> the left of decedent’s signature are the signatures of two witnesses, viz., John Clarkson and Emily Orr. Immediately beneath the signature of decedent are the words “Signature witnessed by Max Kravitz”, in the latter’s handwriting, alongside which is printed or stamped “Notary Public of N. J. My commission Expires July 25, 1935.” The Notary’s seal is impressed on the instrument.

Witnesses Clarkson and Orr predeceased the author of the document. The only testimony at the hearing was that of the Notary, Max Kravitz. When carefully scrutinized, his testimony fails to establish the presence of anyone but decedent and himself on the occasion of his signing. Obviously his recollection of the circumstances is not clear at this time. When pressed for an unequivocal answer with respect to this vital point, he was obliged to admit that “Well, I guess I could hot positively say”.

One of the requisites of the making of -a valid will is that publication shall be made “in the presence of two witnesses present at the same time, who shall subscribe their names thereto, as witnesses, in the presence of the testator.” R. S. 3 :2-3.

Where the attestation clause to a will is imperfect, or is omitted altogether, the proponent is “required to furnish affirmative proof of compliance with such statutory requirement.” In re Amsden, 121 N. J. Eq. 571, 573 (E. & A. 1937). In the latter case (at page 574] the court added: “At best for the proponent we are left to conjecture as to when and where and in whose presence the witness signed the alleged will. In such case the rule is that the court has no right to substitute conjecture for positive proof of conformity to the statutory requirements.”

Counsel for appellant urges that the testimony in the instant case, by analogy with the proofs in Vernon v. Vernon, 69 N. J. Eq. 759 (Prerog. 1905], justify the probate of the will herein. We cannot adopt that view. It is to be observed that in the Vernon case, Chancellor Magie, sitting as the'Ordinary, specifically found that the proofs there “established that the signature [of testator] was made by her in the presence of both [witnesses], and that they immediately thereafter signed their names thereto in the presence of [testator] and of each other, and at the request of [testator].” The only doubt in that case arose from the circumstance that testator had not, in specific words, “declared” the document to be a will. In the instant case the difficulty arises from the fact that the proofs establish the presence of but one witness to the signing and publication of the purported will.

The testimony in the instant case does not supply proof of compliance with statutory requirements. Probate was therefore properly denied. Where proof aliunde must be relied upon, nothing short of “positive” proof will suffice. In re Amsden, supra. The care which must be exercised at the time of the execution of a will, in order that statutory safeguards shall not be nullified, is indicated in the following decisions of our courts: Mundy v. Mundy, 15 N. J. Eq. 290 (Prerog. 1858); Allaire v. Allaire, 37 N. J. Law 312 (Sup. Ct. 1875], 39 N. J. L. 113 (E. & A. 1876); Lacey v. Dobbs, 63 N. J. Eq. 325 (E. & A. 1901); Bioren v. Nesler, 77 N. J. Eq. 560 (E. & A. 1910); In re Sutterlin, 99 N. J. Eq. 363 (E. & A. 1925); and In re Amsden, supra.

Judgment below affirmed.


author: Eastwood, J. A. D.

text:
    CONCORD GARDEN APARTMENTS, ALBERT MELTZER AND PAULINE MELTZER, PLAINTIFFS-APPELLANTS, v. THE BOARD OF ADJUSTMENT OF THE CITY OF ENGLEWOOD, AND THE CITY OF ENGLEWOOD, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 21, 1949
    Decided March 7, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Jacob Schneider argued the cause for the plaintiffs-appellants (Messrs. Schneider and Schneider, attorneys).

      Mr. LeRoy B. Huckin, attorney for the defendants-respondents, argued the cause.
   The opinion of the court was delivered by

Eastwood, J. A. D.

Certiorari was allowed by the former Supreme Court to review the action of the Board of Adjustment of the City of Englewood, denying plaintiffs’ application for a variance from its zoning ordinance to permit plaintiffs to erect and construct a two-story garden type apartment house for thirty-six families. The Building Inspector had previously refused to grant plaintiffs a building permit, on the ground that the plans and specifications submitted with plaintiffs’ application did not comply with the side yard restrictions required by the zoning ordinance. No appeal was taken from the action of the Building Inspector.

For a clear understanding of the issue here, we deem it essential to summarize the factual situation. Plaintiffs’ property consists of a lot of land situate on Engle Street, one of the main thoroughfares of the city, and is approximately two hundred and thirteen feet wide by four hundred and sixty-five feet deep, is adjacent to a large cemetery on the south and east sides thereof, and is in a residential neighborhood, with one or two doctors’ offices. When plaintiffs applied respectively for the building permit and variance, their property was in District No. 2, Residence, Area B, a multiple dwelling house zone and they were entitled to construct a two-family garden type apartment house in conformity with the provisions of the ordinance.. Subsequent to the Building Inspector’s refusal to issue a building permit and, on October 23, 1947, plaintiffs applied to the Board of Adjustment for a variance from the side yard restriction, which was denied and plaintiffs did not seek a review thereof. On March 16, 1948, the governing body introduced and passed on first reading a new zoning ordinance, whereupon plaintiffs exercised their contract of sale and took title to the premises in question on March 17, 1948. They revised their plans to comply with the proposed ordinance. However, on April 6, 1948, the proposed new ordinance was withdrawn by the governing body and no further action was taken thereon. Plaintiffs then submitted a new application to the Board of Adjustment for a variance based on revised plans, which application, after a hearing, was denied on June 8, 1948. On July 6, 1948, plaintiffs were allowed a writ of certiorari to review this latter action of the Board of Adjustment. On July 13, 1948, the governing body introduced an amendment to its zoning ordinance whereby plaintiffs’ property and other parcels theretofore zoned as District No. 2, Residence, Area B, were changed to District 2-A, Residence, Area B, limited to a one and two-family dwelling house zone, and other changes were made in the zoning districts not affecting the issue here. The amendatory ordinance was adopted on final passage on August 10, 1948.

We find it unnecessary to discuss and decide this appeal on the grounds advanced by plaintiffs. We are convinced that under our decided cases the adoption of the amendatory ordinance on August 10, 1948, changing, inter alia, the zoning district of plaintiffs’ property, effectually disposes of this issue.

The. writ of certiorari did not include a review of the amendatory ordinance of August 10, 1948. Plaintiffs contend, however, that the Board of Adjustment’s refusal to grant a variance was for the specific purpose of permitting the governing body’ “to pass a new ordinance removing this property from an apartment house zone”, and they charge that it was an eleventh hour attempt to prevent the plaintiffs from using their property for its highest use and for which it -had been zoned for many years, citing Vine v. Zabriskie, 122 N. J. L. 4 (Sup. Ct. 1939). The record here does not support the plaintiffs’ contention and we disagree with their conclusions. The Vine v. Zabriskie, case, supra, is not applicable to the factual issue here. This ordinance created changes of zoning districts not only affecting plaintiffs’ property, but premises in several other districts of the city. In passing, it should be noted that plaintiffs had not commenced the process of the construction of the proposed apartment house. The action of the governing body presumably was a proper exercise of its discretion and was intended to embrace changes in its zoning districts to conform to a comprehensive zoning plan suitable to the city. Such action was within the legislative authority delegated to the governing body. Taylor v. Hackensack, 137 N. J. L. 139 (Sup. Ct. 1948): Appley v. Bernards Township, 128 N. J. L. 195 (Sup. Ct. 1942); affirmed, 129 N. J. L. 73 (E. & A. 1942). “The law indulges the presumption that a zoning ordinance is altogether reasonable in its application; * * Brandon v. Montclair, 124 N. J. L. 135 (Sup. Ct. 1940); affirmed 125 N. J. L. 367 (E. & A. 1940). In view of the fact that the amendatory ordinance now precludes the construction of an apartment house on plaintiffs’ land, it is the applicable law in effect at this time. In arriving at our determination, we are, therefore, controlled by it. Rohrs v. Zubriskie, 102 N. J. L. 473 (Sup.Ct. 1926); Koplin v. South Orange, 6 N. J. Misc. 489 (Sup. Ct. 1928). As Mr. Justice Perskie pertinently stated in the case of Socony-Vacuum Oil Co., Inc., v. Mt. Holly Twp., 135 N. J. L. 112 (Sup. Ct. 1947), at pp. 117, 118:

“Moreover, in my opinion, there can no longer be any question as of the time when the status of the applicable law controls. It is neither the status of the law prevailing at the time of the application for the permit nor the status of the law prevailing at the time of the application or allowance of the rule to show cause. It is the status of the law prevailing at the time of the decision by the court that is controlling. Cf. Westinghouse Electric Corp. v. United Electrical, &c., America (Court of Errors and Appeals, 1946), 139 N. J. Eq. 97, 105, 106; 49 Atl. Rep. (2d) 896.
“And just as a change in the law between a nisi prius and an appellate decision requires the appellate court to apply the changed law, so, by like token, a change of law pending an administrative hearing or act must be followed in relation, as here, to a permit for the doing of a future act. * *

At the argument, plaintiffs contended that the governing body did not proceed lawfully in the adoption of the 1948 amendment. This contention cannot be considered by us, as under the writ the amendatory ordinance is not before us for review. The appeal will be dismissed without prejudice to plaintiffs’ right to undertake such further proceedings as they may deem advisable to test the validity of the amendatory ordinance.

The appeal is accordingly dismissed and the determination of the Board of Adjustment is affirmed, without costs.


author: Colie J. A. D.

text:
    AUGUST J. SASSMAN, PLAINTIFF-APPELLANT, v. BESSIE A. SASSMAN, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 21, 1949
    Decided March 8, 1949.

      Before Judges McGeehan, Donges and Colie.

      Mr. William L. Dill, Jr., argued the cause for plaintiff-appellant (Messrs. Stryker, Tams & Horner, attorneys).

      Mr. David B. Schackner argued the cause for defendant-respondent (Messrs. Fox and Shackner, attorneys).
   The opinion of the court was delivered by

Colie J. A. D.

August J. Sassman appeals from an order dismissing, without prejudice, an application to reduce and modify the maintenance provisions of a final decree of the Court of Chancery. On April 24, 1945 when the decree was entered, plaintiff was employed and earning $437. a month. The decree directed him to pay $75. a month and permitted.the defendant to continue to occupy, rent free, the second floor apartment of premises owned by the plaintiff and defendant as tenants by the entirety. It also directed the plaintiff to pay the taxes and insurance -premiums thereon amounting to $292.44 annually. On August 6, 1948 plaintiff was -retired from his former employment and now receives a monthly pension of $86.31. In addition, he receives old age social security benefits amounting to $44.80 per month and unemployment compensation benefits of $22. per week. His admitted income is $226.44 per month. The -defendant is 60 years of age and employed as a nurse at an average income of $30. per week. She is under medical care for hypertension, secondary anemia and nervous tension. The plaintiff is 65 years of age, in good health and presently out of -employment. He 'has registered with the State Employment Service but refused the only offer of employment because the wages were meager for the hours required.

In view of an admitted income of $226.44 a month and the present uncertainty as to future employment, we perceive no error in dismissing the application for a reduction at this time. It is suggested that since the unemployment insurance benefits will shortly cease, a modification is presently in order. Judgments for alimony and maintenance remain within the control of the court and a-re subject to change in the light of changed circumstances. Lindquist v. Lindquist, 130 N. J. Eq. 611 (E. & A. 1941) Until the event took place, the application was premature and was properly dismissed.

The order under appeal is affirmed.


author: Colie, J. A. D.

text:
    ARNOLD GLICK AND HAROLD GLICK, TRADING AS GLICK BOOKBINDING CO., PLAINTIFFS-APPELLANTS, v. THE TRUSTEES OF THE FREE PUBLIC LIBRARY OF THE CITY OF NEWARK AND WM. H. RADEMAEKERS & SON CO., A CORPORATION, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 31, 1949
    Decided March 3, 1949.

      See also 137 N. J. L. 354, 60 A.2d 77.
    Before Judges McGeehan, Donges and Colie.

      Mr. Samuel A. Larner argued the cause for plaintiffs-appellants.

      Mr. Thomas L. Parsonnet argued the cause for defendant-respondent, Trustees.
   The opinion of the court was delivered by

Colie, J. A. D.

The question for decision is whether or not the Trustees of the Free Public Library of the City of Newark, hereinafter referred to as the Trustees, are bound by the provisions of R. S. 40:50-1 and therefore required before contracting for any work or furnishing of materials, supplies or labor for a sum exceeding $1,000. to advertise publicly for bids and award the contract to the lowest responsible bidder. The facts before us by stipulation disclose that the Trustees publicly advertised for bids for binding and rebinding of books for the library for the year 1948. One of the conditions of the proposal was that the bids were subject to an ordinance of the City of Newark providing “that all contracts hereafter made by or on behalf of the City of Newark or any of its departments or subdivisions * * * shall contain a provision that the laborers * * * engaged in said work * * * shall not work more than eight hours in any one day * * * and * * * shall be paid the prevailing -rate of wages for the type of work to be done in the territory in which it is or is to be performed.” Plaintiff submitted a bid of $23,112.95. Wm. H. Rademaekers & Son Co. submitted a bid of $23,811.25. Both bidders complied in all respects with the requirements of the advertisement, specifications and instructions to bidders. Subsequently the Trustees awarded the contract to Rademaekers & Son Co. No reason was given for the rejection of the lower bid and no hearing was held as to plaintiff’s qualifications or responsibility, indeed their experience and qualifications are conceded. The place of business of plaintiffs is in Brooklyn, New York and the work of binding was to be done there and the books delivered to the library in Newark.

After the award of the contract to its competitor, plaintiffs promptly applied for and were allowed a writ of ’certiorari.

It is ’conceded that the free public library is governed by R. S. 40:54 — 1 et seq. After providing for a referendum and assuming favorable action by the voters, the statute -requires a municipality to annually appropriate and raise by taxation a s-um equal to one-third of a mill on every dollar of assessable property within the municipality. By L. 1944, c. 49, R. S. 40:54-8 was amended to read: “Such additional sum, as in the judgment of such body or board is -necessary for the proper maintenance of a free public library, may be appropriated and raised 'by taxation, annually.” A board of trustees shall be appointed, consisting of the mayor, the head of the municipal school -system and five citizens -appointed by the -mayor. The board is -constituted a body corporate with the right of corporate -succession and the right to sue and be sued. The trustees are empowered to manage the property and hold it as trustees. They may rent rooms, construct buildings, purchase reading matter, hire librarians and necessary servants, fix their compensation, make proper rules and regulations for the government of the library and generally do all things necessary and proper -to establish and maintain a library. The treasurer of the board of trustees is bonded to the municipality in an amount fixed by the mayor and empowered to receive from the disbursing officer of the municipality monies raised for library purposes. The trustees must report annually to the municipality and they are empowered to purchase lands for library purposes, providing they first secure the mayor’s approval and they are also given the right to acquire lands by condemnation.

On behalf of the defendants it is said that the powers conferred upon the trustees by R. S. 40:54-1 et seq. manifest a legislative intent to confer upon the trustees the -power to contract, free from the requirements of advertising for and awarding the contract to the lowest responsible bidder. Our reading of the -a-ct relating to free public libraries leads us to a different conclusion. The fact that the library is maintained 'by funds derived from taxation, the presence of the mayor and the head of the municipal school system on the board and the power given to the former to appoint the remaining members of the board of trustees, the requirement that the mayor fix the amount of the treasurer’s bond and approve any prospective purchase of real property, the requirement of an annual report to the municipality make it in effect a branch or agency of the municipality and therefore within the meaning of the term “municipality” as used in R. S. 40:50-1. In Trustees v. Civil Service Commission, 83 N. J. L. 196 (Sup. Ct. 1912) the court had before it the question of whether or not the employees in the Newark library came under the Civil Service Act, and it held that they did. The court said “a review of the foregoing legislation, (free public libraries) to our minds, indicates a public policy to bring into requisition, as an adjunct to it, (public school system) the library, as a means of placing in the hands of its citizens sources and collections of knowledge to aid and add to their education, while the public schools are performing their functions, and after the attendants uoon the schools have been graduated therefrom. * * *

“Although the legislature saw fit, for its convenience and for purposes of the administration of this branch of its educational duty, as now constituted under its public policy, to create a corporation, will not prevent such corporation from being considered a mere branch or agency for that special purpose.”

In affirming this judgment, 86 N. J. L. 307, the Court of Errors and Appeals said “We are not called upon in affirming this judgment to accede entirely to the reasoning contained in the Supreme Court opinion.” However, the language quoted from the opinion of the Court of Errors and Appeals is no more than a reservation by it of the question decided by the Supreme Court, namely, that a free public library board is a branch or board of the municipal government. We take the reservation -to mean only that the court either did not consider the question or that if it did consider it, it saw no need to pass upon it.

It remains only to consider the effect of R. S. 34:9-2 which, so far as pertinent reads: “In the construction of any public work for * * * any * * * municipal corporation or any board * * * thereof, whether the same be a building, excavation, sewer, or drainage construction, road building, paving, bridge, or any other form or kind of public work, preference in employment thereon shall be given to citizens of the state of New Jersey * * * ”. It seems clear that under the doctrine of ejusdem generis the phrase “or any other form or kind of public work” is restricted to public work of the kind specifically enumerated earlier in the section.

For the reasons stated, the resolution of the hoard of trustees adopted March 24, 1948 is set aside.


text:
    ANNA PASSARELLA, APPELLANT, v. BOARD OF COMMISSIONERS OF THE CITY OF ATLANTIC CITY AND ANTHONY VENAFRO, TRADING AS VILLAGE BAR, RESPONDENTS, AND ERWIN B. HOCK, COMMISSIONER OF THE DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, INTERVENING-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 14, 1949
    Decided March 7, 1949.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Samuel Levinson argued the cause for the appellant (Mr. John A. Miller, attorney).

      Mr. Isaac C. Ginsberg argued the cause for the respondent, Anthony Venafro (Mr. Paul J. Farley, attorney; Mr. Frank S. Farley, of counsel).

      Mr. Daniel J. Dowling, attorney for the respondent, Board of Commissioners of the City of Atlantic City.

      Mr. Samuel D. Belfand, Deputy Attorney General, argued the cause for the intervening-respondent (Mr. Walter D. Van Riper, Attorney General, attorney).
   The opinion of the court was delivered by

Eastwood, J. A. D.

Appellant, Anna Passarella, invokes the .aid of this court to reverse and set aside a transfer by the Board of Commissioners of the City of Atlantic City (hereinafter referred to as the municipal body) of a plenary retail consumption license issued in the name of respondent, Anthony Venafro, trading as Village Bar, for premises No. 16 North Missouri Avenue, Atlantic City, expiring June 30, 1948, to premises No. 12 North Missouri Avenue (a vacant lot), Atlantic City, upon the express condition that the transfer should not become effective until Venafro completed the erection and construction of a proposed building thereon wherein he would exercise the privileges of the liquor license in question. An appeal taken from the transfer to the Commissioner of the Department of Alcoholic Beverage Control (hereinafter referred to as “Commissioner”), resulted in an affirmance of the action of the municipal body. This appeal stems from the latter’s determination.

Appellant relies upon several grounds for a reversal of the action of the municipal body. For the purposes of a determination of this appeal, we are convinced that it is only necessary to discuss what we consider as the only important ground urged by appellant, to wit: that the municipal body was without legal authority to approve the transfer of Venafro’s license to a vacant lot, even though its effectiveness was restricted until the completion of the proposed building.

Appellant is the mother-in-law of the licensee, Venafro. She is the owner of the premises No. 16 North Missouri Avenue, was the holder of a plenary retail consumption license therefor for the period July 1, 1940 to June 30, 1941. On May 1, 1941, appellant leased said premises to Venafro and the license was subsequently transferred to him and under renewals thereof Venafro continued to exercise same until its transfer to premises No. 12 North Missouri Avenue. Prior to the transfer, commencing with April 1, 1948, appellant through her attorney, negotiated with Venafro for an increased rent for the ensuing year. Venafro refused to accede to appellant’s demands, as a result of which Venafro sought a transfer of his license to the new location.

As stated, appellant argues that there is no statutory authority for the issuing or transferring of such a license to a vacant lot and consequently the municipal body exceeded their authority notwithstanding the exercise of the privileges thereof was restricted to a time when the proposed building would be completed and ready for occupancy. It is undisputed that there is no specific reference in the Alcoholic Beverage Control Act with respect to the issuance or transfer of a liquor license to a vacant lot, nor is there any prohibition of such action. Appellant argues that the municipal body approved the transfer for the sole purpose of qualifying the licensee as a renewal applicant for the proposed premises for the ensuing license year, with the understanding that any renewal license granted for the proposed premises would be subject to the same conditions. Appellant argues further that such action was taken purposely and deliberately to circumvent P. L. 1947, c. 94, p. 501 (R. S. 33:1-12.13 et seq.), which Act had for its purpose a limitation of the number of licenses for the several municipalities in the State; that, if the transfer here had not been so approved, it would have been impossible for Venafro to have obtained a license for the proposed premises; that the 1947 law would have then become effective; that, in view of the conceded fact that the number of licenses then in effect in Atlantic City, no new licenses could have been granted; that, also, no new license could have been granted for the proposed premises, as it would have violated a provision of the ordinance of Atlantic City prohibiting the issuance of a new license to premises within three hundred feet of other licensed premises. We think it is perfectly clear that under the Alcoholic Beverage Control Act the issuing authority has no authority to issue or effect a transfer of an existing license whereby the licensee will be authorized to exercise any of its privileges on wholly vacant land. Such was not the action undertaken by the municipal board. If it had done so, it would unquestionably have been invalid. Appellant’s argument may well be summarized as a contention that the transfer in question was made to be exercised on a vacant lot. The license so transferred specifically restricted the licensee from exercising its privileges until such time as the proposed building was completed. The municipal body concluded that Venafro was about to be dispossessed from the premises No. 16 North Missouri Avenue. This finding of fact was affirmed by the Commissioner. It was on the basis of that finding of fact that the municipal body approved the transfer, to No. 12 North Missouri Avenue subject to the conditions mentioned. If the transfer had not been approved under the 1947 statute limiting the number of future licenses to be issued, his license would have lapsed and no new license could have been issued for No. 12 North Missouri Avenue. In addition, Venafro’s application for transfer of his license was justified, to the end that he might ascertain the attitude of the municipal body with respect thereto. Otherwise he would have been bur-denied with the expenditure of a large sum of money to erect and construct a building on the vacant lot in question at the risk of the possible refusal of the municipal body to approve such a transfer. While the applicable law makes no specific reference to the issuance or transfer of liquor licenses to vacant lands subject to the erection and construction of a proper building within which to conduct a liquor business, the Commissioner, under authority delegated to him by the Legislature and expressly found in R. S. 33:1-23 and R. S. 33:1-39, has consistently ruled that the municipal issuing authority may grant an application for liquor license pursuant to R. S. 33 :1-32 upon “the express condition (imposed in the authorizing resolution, pursuant to Revised Statutes, 33 :1-32) that the premises as described in the plans and specifications prepared and submitted by the applicant and found acceptable by the issuing authority shall first be completed. (Re Harris, Bulletin 183 Item 11; Re Salter, Bulletin 184, Item 8; Re Murphy, Bulletin 389, Item 11 )” Under the authority of this rule, the municipal body may not actually issue the license until the premises are completed in accordance with the filed plans and specifications. And, of course, it necessarily follows that if the license were not actually issued and in effect on June 30th -of a given year, there could not be a renewal thereof on the year beginning July 1st, for the license then would be considered as a new license. If that situation had developed here, in view of the 1947 law, no new license could have been issued for the proposed premises. Under authority of the Commissioner’s Bulletin No. 762, Item 5, issued on May 14, 1947, the issuing authority may not only grant an application for a license for a building not yet constructed or for a building in course of construction, effective subject to its completion, and provide by appropriate amendatory resolution that such license is authorized to be effective immediately for the sole purpose of permitting a renewal thereof subject to the aforementioned building restriction, but the issuing authority may, where the application for the transfer has been approved, and where the licensee still is in possession of the old licensed premises, and will continue in the old premises on or after July 1st until the proposed building is completed, to apply for a renewal for the old premises and the municipal body could, by appropriate action, transfer the license to the new premises when completed after July 1st. The action of the municipal body is accordingly grounded on express authority by the Commissioner in the rules and regulations heretofore mentioned and promulgated by him. Under R. S. 33:1-19, the governing body is given the jurisdiction to administer the issuance of retail liquor licenses. R. S. 33:1-26 authorizes the municipal governing body to transfer licenses from one premises to another. R. S. 33:1-24 directs the municipal governing body to receive applications for licenses; to inspect the premises sought to be licensed; to conduct public hearings on applications; “to enforce primarily the provisions of this chapter and the rules and regulations so far as the same pertain or are in any way concerned with retail licenses”; and “to do, perform, take and adopt all other acts, procedures and methods designed to insure the fair, impartial, stringent and comprehensive administration” of the statute. The latter section further provides that the “enumeration of the above specific duties shall not be construed to limit or restrict in any way the general authority given by this chapter to each said other issuing authority.” It is apparent from this legislation that each municipal governing body has a wide discretion in the issuance and transfer of liquor licenses, subject to review of the Commissioner for any abuse thereof. As affecting the issue here, this legislative authority vested in the municipal governing body would seem to clearly empower the municipal governing body to exercise such a preliminary step as was undertaken here in approving the transfer of Venafro’s license and the exercise of such authority has almost always been sustained by our courts. This is evident from the opinion of Mr. Justice Heher, in the case of City Affairs Committee v. Jersey City, 134 N. J. L. 180 (E. & A. 1945), wherein he stated:

“While a municipal corporation is a government of enumerated powers, acting by a delegated authority, it possesses also such rights as arise by necessary or fair implication, or are incident to the powers expressly conferred, and such as are essential to the declared objects and purposes of the municipality. N. J. Good Humor, Inc., v. Bradley Beach, 124 N. J. L. 162.”

We think there is no merit to the contention raised by the appellant that the Commissioner was without authority to issue the regulations in question under the authority of which the municipal body approved the transfer. The Legislature, in the applicable statute, delegated broad powers and authority to the Commissioner to adopt “procedures and methods designed to insure the fair, impartial, stringent and comprehensive administration” of the statute. R. S. 33:1-23. And to “make such general rules and regulations * * * as may be necessary for the proper regulation and control of the manufacture, sale and distribution of alcoholic beverages * * * R. S. 33 :- 1-39. The latter section expressly empowers the Commissioner to adopt rules and regulations for “instructions for municipalities and municipal boards” and “all forms necessary or convenient in the administration” of the statute. Such delegated authority has received the sanction of our courts. State Board of Milk Control v. Newark Milk Company, 118 N. J. Eq. 504 (E. & A. 1935). The construction of the law by the Commissioner, commencing with June, 1937, with respect to the issuing of licenses conditioned upon the erection and construction of a building on a vacant lot has been consistently pursued not only by the respondent, but his predecessors in office. Our courts have always given great weight to such constructions of the law by the Commissioner, especially where no legislative action has been subsequently taken to indicate a contrary view and have held that such a construction of long standing will not be lightly disturbed by the courts. Cino v. Driscoll, 130 N. J. L. 535 (Sup. Ct. 1943), wherein it was said:

“Moreover, the legislature charged with the knowledge of the construction placed upon the Alcoholic Beverage Law, as evidenced by these rules, has done nothing to indicate its disapproval thereof. Cf. Young v. Civil Service Commissioner, 127 N. J. L. 329, 22 Atl. Rep. (2d) 523. The contemporaneous construction thus given to a law of the state for over a decade is necessarily respected by us.”

Also, see State v. State Board of Tax Appeals, 134 N. J. L. at p. 48 (Sup. Ct. 1946) and Kravis v. Hock, 137 N. J. L. 252 (Sup. Ct. 1948). Appellant cites the cases of Warren Street Chapel v. Excise Commissioners, 56 N. J. L. 411 (Sup. Ct. 1894); Winants v. Bayonne, 44 N. J. L. 114 (Sup. Ct. 1882); atid Leeds v. Atlantic City, 81 N. J. L. 230 (Sup. Ct. 1911), in support of his argument that a liquor license may not be issued to a vacant land without a building thereon at the time of the issuance of the license. An examination of these decisions will reveal, however, that the factual situation in each case may be distinguished from the facts of this appeal. Therefore, they have no applicability to this issue. In addition, these cases, relied upon by the appellant, ante-date by many years the adoption of our present Alcoholic Beverage Control Act. The broad powers granted to the Commissioner and the municipal body to which reference has been made, were not vested in the local issuing authority, nor were they contained in'or delegated by the statutory law controlling the cases cited by appellant. It is quite clear from a consideration of the provisions of the 1947 Act, that the legislative intendment was not to unreasonaably interfere with the transfer or renewal of existing licenses, notwithstanding the limitations created thereby. See R. S. 33:1-12.16, 18 and 19. We are of the opinion that the authority exercised by the municipal body, with the sanction of the Commissioner, as well as the cited provisions of the applicable law, was properly exercised and impliedly within its authority.

Appellant urges that the Commissioner erred in finding as a fact that the appellant had made a bona fide demand of Venafro for possession of the licensed premises within the provisions of the Atlantic City ordinance. The municipal body had obviously arrived at the same conclusion. Appellant contends that the evidence does not justify this determination and urges this court to review same under -the authority of R. 1 :- 2-20 and 4:2-6. It is true that we may review the facts and make an independent finding. However, where, as here, there was sufficient evidence to support this finding of fact, such an independent determination is not justified and it will not be disturbed. DeMoors v. Atlantic Casualty Insurance Company of Newark, 1 N. J. Super. 1, 61 A.2d 511 (App. Div. 1948); Tuzio v. Saylor et al., 1 N. J. Super. 61, 62, A.2d 402 (App. Div. 1948).

We have considered the other grounds of appeal and find no merit in them. Consequently, they require no discussion.

The judgment below is affirmed, with costs.


author: Jayne, J. S. C.

text:
    WILLIAM H. COURTNEY, COMPLAINANT, v. MILDRED HANSON ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided September 21, 1948.

      Mr. Albert B. Kahn, (Mr. Nathan N. Schildkraut, appearing), for petitioner, administrator pendente lite.

      Messrs. Chandless, Weller, Kramer & Frank, (Mr. Julius E. Kramer, appearing), for petitioner Del Vecchio.

      Mr. Henry M. Hartmann, for defendant-Daube.

      Mr. Sido L. Ridolfi, for defendants Companaro and Orsi.

      Mr. Philip M. Chamberlin, for defendant Grace Hanson.

      Mr. Walter D. Van Riper, Attorney-General, for the State.
   Jayne, J. S. C.

The controversial subject presented for determination arises from the adverse claims of the two petitioners for -surplus moneys derived from a mortgage foreclosure sale.

Most of the antecedent factual events of present pertinency were imparted in Hanson v. Levy, 141 N. J. Eq. 103, 56 Atl. (2d) 411. To bring the narrative to date -it is necessary additionally to divulge that -during the pendency of the partition suit above cited, the -holder of the second mortgage encumbering the premises in the principal sum of $3,000 foreclosed his lien, and at the sheriff’s sale the property was purchased by Daube, who was the vendee named -in the inter vivos contract which remained unperformed at the vendor’s death. The proceeds of the foreclosure sale are in excess of the complainant’s decree, resulting in a surplus fund. I am requested to determine the lawful destination of the fund.

The question may be tersely propounded in this fashion: Where the owner of real estate encumbered by a mortgage executes a valid contract to convey the premises to the vendee by warranty deed -and in fact executes and delivers such a deed -in escrow and dies before the consummation of the sale, whereupon the mortgage is foreclosed and the premises struck off to the vendee -resulting in a fund in excess of the mortgage debt, are the decedent’s heirs or the administrators of his state entitled to the surplus moneys ?

In equity, a -contract for the -sale of land -is recognized, for most purposes, -as if it were specifically executed and performed. In consequence of that view, the purchaser becomes the equitable owner of the land, and the vendor the anticipated equitable recipient of the purchase money. Following -the contract, the vendor i-s the trustee of the legal estate for the vendee. Before the contract is consummated by actual conveyance, the lands are devisable by the vendee, and descendible to his heirs as real estate. Conformably the personal representatives are entitled to the purchase money. Haughwout v. Murphy, 22 N. J. Eq. 531, 546; Siesel v. Mandeville, 140 N. J. Eq. 490, 55 Atl. (2d) 167; Hanson v. Levy, supra.

Professor Pomeroy explains the consequential effects of the application of the doctrine: “So far as is necessary to carry out the lawful purposes of the instrument, will, deed, settlement, or contract, and to determine the property rights of all parties claiming under or through it, equity follows the doctrine into all of its legitimate consequences, and treats the property, from the time at which the conversion takes place, as to all intents of the kind and form into which it should have been changed, and determines the rights of parties to it as in that kind and form. Land directed or agreed to be sold, although yet unsold, is regarded and treated as money. It will not pass under a devise of land or of real estate. It will pass under a general gift, transfer, or bequest of personalty, or under a residuary bequest of personal property. In the absence of a will, it goes to the personal representative of the intestate who would have been or was entitled to it. It is therefore always personal assets in the hands of executors and administrators for which they are accountable * * 4 Pom. Eq. Jur. (5th ed.) 489, § 1164.

This theorem is characterized as the notional or fictional doctrine of equitable conversion. It is nevertheless a firmly established tenet of equity jurisprudence.

Succinctly stated, the cardinal purpose of the doctrine is to effectuate the manifest intent of the vendor and to regard that as done which by previous contract with another, both vendor and vendee have mutually obligated themselves to do. 4 Pom. Eq. Jur. (5th ed.) 472, § 1159.

The intention of the vendor is a predominantly significant factor. Here the vendor not only entered into the contract to convey but indeed in furtherance of it, he duly executed before his death the deed of conveyance. His intent is clearly exhibited.

In the absence of any intimation to the contrary I must assume that the contract was valid when made and enforceable at the death of the vendor. If so, it operated to create an equitable conversion of the land into personalty from the time of its execution. Miller’s Administrator v. Miller, 25 N. J. Eq. 354, 365, reversed on another ground, 27 N. J. Eq. 514; 4 Pom. Eq. Jur. (5th ed.), 484, § 1162.

Events subsequent to the death of the vendor have not been ignored. On December 5, 1947, a decree was entered in the Mercer County Orphans’ Court authorizing and directing the administrator pendente lite of the vendor’s estate to make the conveyance in fulfillment of the contract. R. S. 3:23-3, et seq., N. J. S. A. In the partition suit the vendee expressed his willingness to consummate the agreement. The contract for some reason has not been performed and the actual eventuality has been that although having contracted to pay a price of $25,805 for the property, the vendee purchased it subject to a first mortgage of $7,000 and unpaid taxes of $902, for the sum of $12,100.

Whether in such circumstances the vendee is completely absolved from his contractual obligation or whether he may nonetheless be required to perform it upon equitable terms, is a subject concerning which -this court expresses no present opinion.

It is conceded that the assets of the vendor’s estate other than such as may be derived from the parcel of real estate so sold are insufficient to satisfy the decedent’s debts. The petitioning administrator also advocates the rights of the creditors.

Manifestly it was the intention of this vendor to convert the real estate described in the contract into personal property. In equity, his intent should be respected unless its attainment has been defeated and frustrated .by reason of some legitimate cause.

Had the vendor escaped his premature death, his deed would have been delivered to the vendee. The purchase price would have been applied to discharge the existing liens upon the property and the balance would have become part of the vendor’s estate to be administered as personalty. What has so far occurred? The vendee has acquired the property 'by utilizing a portion of the contractual purchase price to discharge one of the liens and .by accepting the title subject to the remaining encumbrances with a substantial reduction in the expenditure he originally contemplated. It was the mutual intention of the vendor and vendee that the vendee should acquire title to the property. The vendee was legally obligated to purchase it at the price specified in the contract. He in fact purchased the property at the sheriff’s sale.

Suffice for present purposes to resolve that such a state of affairs does not in equity demolish the mutation intended by the deceased vendor.

The petition of Peter Del Vecchio is dismissed. An order will be entered directing with certain qualifications the payment of the surplus moneys to the administrator.


text:
    J. ARTHUR APPLEGATE, PLAINTIFF, v. WALTER H. E. QUACKENBUSH, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided October 19, 1948.

      Mr. Lewis S. Jacobson, for the plaintiff.

      Messrs. Burton, Seidman & Pressler (Mr. Baruch S. Seidman, of counsel), for the defendant.
   Jayne, J. S. C.

The credible evidence fashions the following narrative of the transaction out of which the present litigation has emerged. The plaintiff has for many years been a dealer and distributor of automobiles in Perth Amboy, New Brunswick, and South River in Middlesex County. Apparently he is a scrupulous and veracious business man. In May 1928 an acquaintance introduced to him Mr. William J. Dick who was desirous of purchasing an automobile. Mr. Dick selected a seven-passenger Studebaker automobile, but it transpired that he was unable to make an initial payment in cash of more than one-third of the purchase price. Such sales are characterized in the trade as “lean deals,” and in such bargains some collateral security is conventionally required.

It is the indubitable inference that Mr. Dick not only voluntarily agreed to execute and deliver to the plaintiff a promissory note evidencing his indebtedness for the balance of the purchase price of the vehicle but additionally to secure the payment of his debt by a chattel mortgage on the car and a mortgage on his parcel of land situate in the Borough of Metuchen. He executed the real estate mortgage on May 17, 1928, and the note and chattel mortgage on May 19, 1928, whereupon he received possession of the automobile.

At the maturity date of the note, the debt was not paid and the plaintiff was unable to locate either the debtor or the automobile. The debtor had absconded and has ever since dodged the plaintiff and evaded his indebtedness.

On October 10, 1947, the plaintiff instituted the present suit in the Court of Chancery to foreclose his real estate mortgage. The mortgage had been recorded on May 23, 1928.

The public records reveal that on December 1, 1931, Mr. Dick still aloof resolved to convey the mortgaged premises to Walter G. Quackenbush and Anna G. Quackenbush, his wife, in ex-tinguishment, it. is said, of an indebtedness to them. On July 14, 1941, Walter G. Quackenbush died leaving him surviving, his widow, Annie, who died intestate on May 12, 1945, leaving Walter H. E. Quackenbush, Maude Mason, Arlie Therkelsen, and Percy J. Quackenbush as her next of kin arid heirs at law. The latter by mutual agreement vested the title of the premises on August 5, 1945, in the defendant Walter H. E. Quackenbush. Obviously all of those successors in title had constructive notice of the plaintiff’s mortgage.

In its factual characteristics this case closely resembles the suit entitled Wilbur v. Jones, 80 N. J. Eq. 520, 86 Atl. 769, except that in the present action the basic indebtedness has not been paid. Although payment was averred there was no proof offered to sustain that defense. Fein v. Meier, 71 N. J. Law 12, 58 Atl. 114, affirmed 74 N. J. Law 597, 65 Atl. 1117; Conlon v. Hornstra, 82 N. J. Law 355, 83 Atl. 183. Moreover, the mortgagor did not appear at the final hearing.

The point projected by the defendant that the condition of the mortgage of May 17, 1928, was fulfilled by the mortgagor upon his execution and delivery of the note and chattel mortgage on May 19, 1928, is not impressive. The order form, the note and the two mortgages were essentially contemporary instruments. Collectively they embodied the entire contract relating to the sale of the automobile. Parol evidence was admitted to identify the transaction, the debt incurred. and the true object of the mortgage in suit. Pittsburgh Plate Glass Co. v. Millville Improvement Co., 59 N. J. Eq. 527, 46 Atl. 211, affirmed 61 N. J. Eq. 671, 47 Atl. 1132; Campbell v. Perth Amboy Shipbuilding, &c., Co., 70 N. J. Eq. 40, 59, 62 Atl. 319, affirmed 71 N. J. Eq. 302, 71 Atl. 1133; Ocean County National Bank v. Stillwell, 123 N. J. Eq. 337, 197 Atl. 286. Indeed the sale of the automobile is the only business transaction in which the plaintiff and the mortgagor ever engaged. I surmise it will be the last.

I find it to have been the common intention that the mortgage in suit would constitute further security for the actual payment of the balance of the purchase price of the car amounting to $1,050. It is explained that at the final consummation of sale on May 19, 1928, there were some accessory charges which increased the indebtedness to $1,093.

The defense of laches is not tenable in the circumstances of the present case. The mortgagor decamped, the economic depression intervened, and the defendant and his predecessors in title, with notice of the lien, never endeavored to discharge the mortgage. See, Wilson v. Stevens, 105 N. J. Eq. 377, 387, 148 Atl. 392; Oystermen’s Nat. Bank of Sayville v. Edwards, 112 N. J. Eq. 148, 163 Atl. 445.

Judgment for the plaintiff.


text:
    CITY-BANK FARMERS’ TRUST COMPANY, A NEW YORK CORPORATION, AS TESTAMENTARY TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF WILLIAM A. PATON, DECEASED, COMPLAINANT, v. MARGARET ATLEE JACKSON RIDEAL, ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided October 19, 1948.

      Messrs. Wurts & Plympton, (Mr. William H. Wurts, of counsel), for the plaintiff.

      Messrs. Pitney, Hardin, Ward & Brennan, (Mr. Donald B. Kipp, of counsel), for defendants Margaret Atlee Jackson Rideal, et al.

      Mr. Sydney G. Soons, for defendants William Paton, II, et al.

      Mr. Harrison F. Durand, guardian ad litem for infant defendants Margaret Paton, et al.

      Messrs. Lum, Fairlie & Foster, (Mr. Chester W. Fairlie, of counsel), for defendant National Academy of Design.
   Jayne, J. S. C.

In the pursuit of its fiduciary duties as trustee under the directions of the last will and testament of William A. Patón, deceased, the plaintiff has encountered some incertitude concerning the identity of some of the beneficiaries signified by the testator in the seventh article of his will.

The perplexing ambiguity arises in the testamentary disposition “to the grandchildren of said William Patón then living and the issue of any deceased grandchild, per stirpes and not per capita,” which is here transcribed:

“Seventh: All the rest, residue and remainder of my estate, real and personal, I give devise and bequeath to said Farmer’s Loan & Trust Company, in trust as follows:
“1. To invest and re-invest the same, to collect the income thereof, and to pay the net income thereof as received, but without anticipation, to my wife, Margaret Atlee Jackson, daughter of Philip Rye Jackson, during the term of her life.
“2. On the death of my said wife, to pay and divide the same to and among my children then living and the issue of any deceased child, per stirpes and not per capita, the principal of the share of any child or issue not to be paid to said child or issue until he reaches the age of twenty-one years.
“3. In the event of the death of my wife before me, leaving no children of mine or issue of any deceased child me surviving, or of her death after me leaving no children by me her surviving, or issue of any deceased child, then on her death I direct that the sum of Twenty-five Thousand Dollars ($25,000.00) be paid from said trust fund to the National Academy of Design in the City of New York, the same to be invested and the income thereof to be given annually as a prize for painting to the artist, born in the United States and resident therein for three years previous to the award, who shall be chosen by an annual competition, the terms and conditions of which shall be fixed by said National Academy of Design. One-half of the remainder of said trust fund I give, devise and bequeath to the grandchildren of said William Patón then living and the ipsue of any deceased grandchild, per stirpes and not per capita, and the other half, or the whole thereof failing said grandchildren or their issue, shall go as my wife shall by her last Will and Testament provide.”

The name “William Paton” is not mentioned elsewhere in the will, nor is there language in the will expressive of the identity of the “said William Paton.” A latent ambiguity is produced by the extraneous fact that both the father and a nephew of the testator were named “William Patón.”

To resolve such an ambiguity extrinsic evidence is permissible which, in its nature and pertinency is explanatory of the intention of the testator. Griscom v. Evens, 40 N. J. Law 402, affirmed 42 N. J. Law 579; Van Nostrand v. Reformed Church in America, 59 N. J. Eq. 19, 44 Atl. 472; German Pioneer Verein v. Meyer, 70 N. J. Eq. 192, 63 Atl. 835, affirmed 72 N. J. Eq. 954, 67 Atl. 23; Noice v. Schnell, 101 N. J. Eq. 252, 137 Atl. 582; Holmes v. American Society, &c., Animals, 123 N. J. Eq. 127, 196 Atl. 718; Rausch v. Libby, 132 N. J. Eq. 527, 29 Atl. (2d) 378; Guaranty Trust Co. v. Catholic Charities, 141 N. J. Eq. 170, 56 Atl. (2d) 483.

The testator, a resident of Mercer County, died on December 11, 1918. His will was executed on November 17, 1911. He was one of the three children of William Paton, who died in 1895. The testator had two brothers, David Paton and Stewart Paton. The former died on November 27, 1925, unmarried and without issue; the latter died on January 7, 1942, leaving him surviving his widow and three children, William Patón, R. Townley Patón, and F. Evelyn Patón Powell, who are all now living.

At the time of the execution of the will Evelyn was about 20 years of age, William about 17, and Townley about 10 years old. None had yet married. All have since married. William now has four daughters; Townley has two daughters and a son; Evelyn has no issue. ■

Any notion that the testator in using the designation “said William Patón” intended to refer to himself would be manifestly fantastic because it, is. observed that the gift in remainder is‘expressly predicated upon default of issue of the testator.

There is no reason to infer that the testator entertained an exceedingly odd and anomolous intention to bestow substantially one-half of the corpus of his residuary estate upon the unborn grandchildren of an unmarried. seventeen-year-old nephew.

All of the accompanying and surrounding circumstances support the conclusion that in the denomination “said William Patón” the testator meant his deceased father whose grandchildren, William Patón, R. Townley Patón, and F. Evelyn Patón Powell, the testator had then in mind as the natural objects of .his bounty in the eventuality, mentioned in the residuary clause of his will.

Judgment accordingly.


author: Berry, J. S. C.

text:
    HARRY P. COOK, PLAINTIFF, v. JOHN H. MATHIS CO. AND THE INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, LOCAL NO. 56, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided October 15, 1948.

      Mr. Carlton W. Rowand, for plaintiff.

      Mr. Starr, Summerill & Lloyd, for defendant John H. Mathis Co.

      Mr. Albert P. Morwitz, for defendant Industrial Union of Marine and Shipbuilding Workers of America, Local No. 56.
   Berry, J. S. C.

This controversy concerns the plaintiff’s right to work at his chosen trade, which is a property right (Lo Bianco v. Cushing, 117 N. J. Eq. 593, affirmed 119 N. J. Eq. 377), and the protection of that property right from unlawful interference by the defendants.

The original bill in this cause was filed on April 6, 1944; the first amended bill on April 18, 1944; and a second amended bill on May 24, 1944. The cause came to a final hearing before the late Vice-Chancellor Woodruff on February 26 and 27, 1945, but remained undecided at his death. After September 15, 1948, the effective date of the Judicial Article of the 1947 Constitution, the case was assigned to me for decision.

The prayers of the second amended bill of complaint, so far as now pertinent, are as follows:

“2. That John H. Mathis Co., its agents, servants, and employees, and the agents, servants and employee's of the Industrial Union of Marine and Shipbuilding Workers of America, Local No. 56, may be enjoined from applying the contract and more particularly Article 2, ’Section e of said contract between the said John H. Mathis Co. and the Industrial Union of Marine and Shipbuilding Workers of America, Local No. 56, to suspend the complainant from his employment as a Marine Electrician (2nd class).
“3. That the said John H. Mathis Co., its agents, servants or employees be enjoined from recording on the employment record of the complainant, Harry P. Cook, ‘Suspension for the non-payment of Union dues’; that I. U. M. S. W. of A., Local No. 56, be enjoined from including the name of Harry P. Cook on its membership rolls; that I. U. M. S. W. of A., Local No. 56, be enjoined from placing the namfe of Harry P. Cook on the'delinquent dues list of its membership to the John H. Mathis Co.”

This controversy arises out of the following facts and circumstances as disclosed by the record, and as I find them:

The plaintiff is a marine electrician and was employed as such by the New York Shipbuilding Corporation at Camden, New Jersey, on November 29, 1941 to August 10; 1942. At the time of his employment he was handed a printed copy of an agreement between the New York Shipbuilding Corporation and the Industrial Union of Marine and Shipbuilding Workers of America, Local No. 1, effective June 23, 1941. Attached to the inside of the cover of that copy was a printed notice which reads as follows:

“NOTICE TO NEW EMPLOYEES
“Your attention is called to the fact that the New York Shipbuilding Corporation has a labor agreement with the Industrial Union of Marine and Shipbuilding Workers of America, Local No. I.
“You are advised that your becoming a member of this Union will not interfere in any way with your employment nor retard your advancement.
“The Management requests that you examine the copy of the Agreement handed to you herewith, particularly Article 2, which requires you, as a condition of your employment, to become a member of the Union within three weeks.
“Eor further information you are referred to the Union Shop stiuvard in your department or to the Union Office at 2332 Broadway, Camden, N. J.”

Pursuant to this notice and the terms of the written agreement, he applied for and was duly admitted to membership in Local No. 1 of that union, and remained a member thereof until he voluntarily gave up his employment with the New York Shipbuilding Corporation on August 10, 1942, when he also resigned from the union, expecting to go- to Virginia on construction work of a different character. He spent about six weeks on that job in Virginia, for which he was not paid, and -he then decided to return to his trade as a marine electrician. On December 4, 1942, he applied for a position as marine electrician at the plant of the defendant John H. Mathis Co. in Camden, and began work there on December 7, 1942. When he applied for the position he asked if it was necessary for him to be a member of a union in order to obtain employment and was advised by a representative of the company that it was not; that the company’s business was conducted on the open shop plan; that the company had a contract with a union which he could join if he desired, but that membership therein was not mandatory. At that time there was in force an agreement between the defendant John H. Mathis Co. and I. U. M. S. W. Local No. 1, dated January 12, 1942, which contained the following provisions touching Union membership:

“ARTICLE II
“(a) The parties hereto agree that there shall be no discrimination, interference, restraint or coercion by either of the parties against any employee because of membership or non-membership in Union.
“(b) Union agrees not to transact Union business on Company’s time except as hereinafter provided.
“(c) Any employee who is a member of Union at the time of the execution of this agreement and any employee who becomes a member of Union must remain a member in good standing as a condition of his continued employment.
“(d) Union agrees that it will admit to membership in Union all present employees and all future employees hired or rehired by Company who, under the terms of this agreement, are represented by Union and who are eligible to membership in Union under the constitution and by-laws.”

Of the terms of this contract, the plaintiff had no knowledge.

On May 12, 1945 the defendant Local No. 56 received a charter from the National body of Industrial Union of Marine and Shipbuilding Workers of America and was given jurisdiction over the North Camden area, in which the defendant Mathis Company’s plant was located, and Local No. 56 then took over the contract between the defendant Mathis Company and Local No. 1 and succeeded to all the rights and obligations of Local No. 1 thereunder. Previous to the chartering of the defendant Local No. 56, Local No. 1 had had jurisdiction in the North Camden area. On July 20, 1943, Local No. 56 entered into a contract with the defendant John H. Mathis Co., Article II of which is substantially in the form of Article II of that company’s contract with Local No. 1 above •quoted.

The plaintiff worked for the Mathis Company without incident until May 22, 1943, when he received a notice from Local No. 56, signed by Frank A. Evans, executive secretary, to the effect that he was in arrears in dues to that local from September, 1942 to May, 1943, in the amount of $15.75. And under date of May 25, 1943 he received a further notice to the effect that he was “fired-delinquent in Union dues.” As he was not a member of any union, having resigned from Local No. 1 on August 10, 1942, and having been advised that union membership was not necessary for his current employment, he took these two notices to a Mr. Cale, the personnel manager of the Mathis Company, and inquired as to their meaning and there received what might be considered a not too polite “brush-off” and was referred to the office of the I. U. M. S. W. of A., Local No. 56, in Camden. He immediately went there and met Mr. Evans, the executive secretary of that local, who informed him that because of his previous membership in Local No. 1 at the New York Shipbuilding Corporation he was subject to' the contract then in existence between Local No. 56 and the defendant Mathis Company, and that unless he paid up his delinquent dues from September 1, 1942 to May, 1943, he would be fired by the Mathis Company. The plaintiff asked to see the contract between the defendant Local and the Mathis Company but was told that there was none available at that time. And none was available for many months thereafter and not until plaintiff’s counsel obtained a copy from counsel for Local No. 56 almost a year later. After considerable conversation between the plaintiff and Mr. Evans, the latter told the plaintiff that he would compromise the matter by having the plaintiff reinstated in Local No. 1, for $3.75, and would waive the delinquent dues in the amount of $15.75. The plaintiff objected but was told that this was the only way in which he could retain his employment and that he was subject to the local’s contract. Whereupon the plaintiff drew his check for $3.75, to the order of I. U. M. S. W. A., C. I. O., Local No. 1, dated May 29, 1943, and gave it to Mr. Evans, stating that he was paying that sum under protest and only to protect his rights and that he intended to employ counsel to protect such rights. At that conference with Mr. Evans the plaintiff had his dues book, showing his membership in Local No. 1 and his withdrawal therefrom on August 10, 1942, and showed it to Mr. Evans in support of his argument that he was not subject to any Union contract with his employer. This book he left with Mr. Evans for the purpose of his reinstatement in Local No. 1, which he sought under protest. .

The constitution of the I. U. M. S. W. A., article IV, section 10, provides as follows:

“Sec. 10. (A) In the event of any member removing from one district into another, where a Local of this Union exists, he may be transferred without the payment of an additional initiation fee, provided he is paid up to date and a member in good standing in his former Local.
“Any member changing employment to a yard engaged on new construction must, within thirty days from the date of his new employment, transfer his membership to the. Local whose jurisdiction covers that yard.
“(B) Any member of this Union, upon leaving the industry, may withdraw from the Union. Upon such withdrawal, the officers of the Local, if said member is paid up to date, shall mark the withdrawal in his dues books, which he may retain.
“If the member returns to the industry, he shall be reinstated as a member of the Union in the Local within whose jurisdiction he is employed upon his return to the industry, upon payment of the current month’s dues to that Local.”

The by-laws of Local No. 56, article III, sec. 2, provide as follows :

“Application for Membership: No person shall be admitted to membership, unless he shall have signed and submitted an application form.”

Section 9 fixes the initiation fee at $2.00 and the monthly dues at $1.25. The plaintiff made no application for membership in Local No. 56 and it was represented to him, at the time that he gave his check to Mr. Evans, that the amount of the check was to cover his reinstatement in Local No. 1, and that he was subject to the contract between his employer and Local No. 56 (which was not then in existence and was not executed until July 20, 1943), and in order to retain his employment he would have to be reinstated in the union. These representations were false in fact, and no copy of his employer’s contract with the union being available, he was forced to rely upon the representations of the union’s executive secretary as to the requirements of that contract.

I think it is evident from what happened subsequent to the delivery of the plaintiff’s, check to Mr. Evans, that Mr. Evans planned to put the plaintiff in a position so that he would come under the provisions of his employer’s contract with Local No. 56. It is clear that he was not subject to that contract at that time. It is also clear that Evans intended to bring the plaintiff into Local 56’s fold whether he desired to join the Union or not. In no other way could he be subjected to the Union contract.

As already stated, plaintiff’s check was drawn to the order of Local No. 1, of which he had previously been a member, but it never reached the coffers of that Local. It was endorsed by Frank A. Evans, individually, and by him cashed at the I. U. M. S. W. A. Federal Credit Union, and the cash proceeds were applied by Mr. Evans, according to the records of Local No. 56, to a reinstatement fee of $2.00 as of May 1, 1943, monthly dues of $1.25 and $.50 for Allied War Relief. This was without the knowledge or authority of the plaintiff who had not applied for either membership or reinstatement in Local No. 56, but only for reinstatement in Local No. 1. Thereafter plaintiff continued in his employment by the defendant Mathis Company without further incident until February 14, 1944, when he received a notice from Local No. 56 to the effect that he was in arrears for dues in that local in the amount of $14. On March 8, 1944, he received notice from the defendant Mathis Company that he was suspended for the period of 30 days for non-payment of dues from July, 1943 to March, 1944. The plaintiff then sought relief through the United States Employment Service, the C. I. O. office in Philadelphia, and the “Conciliator” in the War Manpower Commission in Philadelphia, but was told that the only relief he had was in the civil courts. In the meantime he had employed his present counsel. On April 7, 1944, he applied to the defendant Mathis Company for reinstatement in his employment and he was dismissed by a notice stating that “employment terminated by reason of suspension A/c. non-payment of Union dues.”

The plaintiff received his membership and dues book in the Local No. 1 back from the office of Local No. 56, sometime in July, 1943, and when the book was returned, on the inside of the front cover there was pasted a paper reading as follows:

“This is to Certify that the Bearer hereof
Name Harry P. Cook_
is a member
of Local No. 56 Signature_
City Camden_ State N. J._
Initiated Nov. 29,1941 Book No. M-206_
Dept. M_Initiation Fee 3.25_
F. A. Evans Secretary”

The book also contained two monthly dues stamps showing payment of monthly dues on May 29, 1943 and also on July 7, 1943. Plaintiff denies having paid any dues to Local No. 56, and while the records of that local show the receipt of $1.75 on July 7, 1943. for one month’s dues and Allied War Relief assessment, it is quite possible that someone else paid this money for his account without 'his knowledge, and in view of what happened to his check, drawn to the order of Local No. 1, I have no doubt but that he is telling the truth when he says he made no payment whatever to Local No. 56. His membership book in Local No. 1 was still in Mr. Evans’ possession or under his control on July 7, 1943, and it is significant that no one testified to the actual ,receipt of the money for the July dues from the plaintiff. Incidentally, the certificate pasted on the inside of plaintiff’s membership and dues book, indicating his membership in Local No. 56, also shows that he paid an initiation fee of $3.25, which it is admitted he did not pay. It is also contended that the plaintiff recognized his membership in Local No. 56 by attending a meeting of that local in January, 1944. His attendance is admitted, but it was satisfactorily explained. He did not attend as a member but as a spectator in company with another member, and apparently out of mere curiosity.

The fact is that the plaintiff was never a member of Local No. 56 and never sought membership in that local. What he did seek, under protest, was reinstatement in Local No. 1, but he was never reinstated in that local. I am convinced, therefore, that the defendant Union practiced á fraud on the plaintiff as a result of which he lost his employment with the defendant Mathis Company. It is clear that the plaintiff was never subject to the contract ^between that company and the defendant union. The defendant Mathis Company claims that in dismissing the plaintiff from its employ it acted in good faith. As a matter of fact, I think the Mathis Company was a willing dupe of the defendant union and preferred to submit to the intimidating threat of a strike of its union employees rather than attempt to enforce the rights of one of its non-union employees whose work was entirely satisfactory and had gained him merited promotions from his employer. This is plainly apparent from the plaintiff’s conversations with Mr. Cale, Mr. Rockwell, Mr. Finney and others occupying positions of authority with the Mathis Company.

It is contended on behalf of the defendants that the issues here involved are now moot and perhaps, to a certain extent, those issues are more or less academic in view of the prayers of the complaint. However, I think the plaintiff is entitled to a judgment of this court determining his status and his right to work without unlawful interference by the defendants, and it is elementary that equitable relief, to which a suitor is entitled, is not necessarily restricted by the prayers of his complaint. Judgment will be entered for the plaintiff in accordance with these conclusions. As damages are not sought by the plaintiff in this action and as there is no evidence upon which such damages might be assessed, the plaintiff will be left to his legal remedy with respect to such damages, although had such relief been sought here and adequate proof of damages submitted, judgment therefor might well have been awarded. Fleming v. Moving Picture, &c., Local No. 244, 16 N. J. Misc. R. 502, affirmed 124 N. J. Eq. 269. It appears from undisputed testimony that since he was forced out of the Mathis Company employ he had repeatedly, up to the date of the final hearing, attempted to obtain employment at his trade in other shipyards in the Camden area but was unable to do so because of his unlawful dismissal from the Mathis Company and the Union control of such other shipyards. The judgment to be entered herein will be without prejudice to the plaintiff’s right to sue at law for such damages , as he may be advised.