author: McGbath, J. C. C.

text:
    NICHOLAS JANVARI, PETITIONER-APPELLANT, v. PETER SCHWEITZER CO., RESPONDENT-RESPONDENT.
    Union County Court
    Decided April 13, 1951.

      Mr. Louis Lebowitz, attorney for petitioner-appellant.

      Mr. George E. Meredith, attorney for respondent-respondent (Mr. Isadore Kalisch, on the brief).
   McGbath, J. C. C.

On May 21, 1947, petitioner, a blacksmith, met with an accident, injuring his back. While putting the finishing touches on a truck it squeezed him against the platform. He returned to work July 2, 1947. He had a formal hearing and the deputy director found that surgery was not necessary and that there should be an award of temporary disability plus permanent disability of ten per cent of total. He found a preexisting weakness of petitioner’s neural arch, and X-rays showed evidence of arthritis which the deputy director said was not surprising in view of the man’s age and his work. He also found his leg affected by a cardio-renal system disorder. The deputy director found a low back injury of an orthopedic character. Petitioner had stated that he never had trouble with, his back before the accident. The deputy director said: “There has been some indirect allusion to surgery. The greater weight of the credibility testified in this case preponderates against that.”

The award was paid and the man continued to work and was working for the respondent at the time of the original hearing on June 28, 1948. His complaints at the time "of the hearing were as follows: back bothers him, legs swell up, left leg folds and swells more than the right; legs sore, pain across back, headaches, nausea, leg and stomach hurt, could not lift anything.

Dr. Leonard Harris testified for petitioner at the original hearing and said the man had a defect in the neural arch at the fifth lumbar vertebrae known as a pre-spondylolisthesis. He estimated CO per cent of total permanent disability. The involvement of the neural arch, he admitted, existed before the accident but was agitated by the accident. He did not know whether the man had disability before the accident. His diagnosis was a pre-spondylolisthesis aggravated by acute back sprain. He thought there would be no change in his condition. He found no disability in the leg but there was a small neurotic clement.

Dr. P. P. Cardinalo testified for the petitioner at the original hearing that the man had 20 per cent of total based on a contusion and abrasion of the lower abdominal Avail and lower spine. The doctor never felt that surgery was required. He advised a neurological examination. The prognosis Avas good but there might be some neurological condition. The X-rays showed a productive arthritis betAveen the first and second lumbar vertebrae, but there was nothing that he ascribed in the way of disability to the arthritic condition.

Dr. Andrew C. Ruoff, at the original hearing said the man had a 2'Y¿ to 3 per cent total, and 5 per cent would be extremely liberal. He said pétitioner suffered from a cardiorenal vascular disease not related to the incident, but had no neurosis.

Dr. William B. Ein, for respondent, at the original hearing thought five per cent of total from an orthopedic standpoint would be proper. There were mild arthritic changes of the lower dorsal spine, a spina bifida, a definite involvement of the neural arch at the first sacral segment, but no relationship between the accident and the spondylolisthesis.

The petitioner’s physical appearance at the time of the original hearing was described by Dr. Cardinale as being a heavy set man weighing 350 pounds, and being 6 feet 3 inches tall, with a prominent stomach.

On October 11,1949, a petition was filed alleging that since the original award the petitioner’s orthopedic disability had increased, and seeking additional compensation under the act and incidental expenses. This petition was heard by the deputy director and was dismissed on the ground that there had been previously entered a finding that surgical intervention was not reasonably indicated and that petitioner was thereby estopped by res adjudicada, or by failure to object to the deputy director’s original finding, and that at least the petitioner should have given notice to the respondent so that the respondent might have investigated in advance the need for the operation, which was performed several months after the original hearing.

The transcript of the original hearing for disability was offered in evidence by the respondent at the hearing for increased disability, and was also referred to at the second hearing by the deputy director, and therefore, I have examined the original transcript of the first hearing, on the original claim for disability. I find nothing in the original hearing which would estop the petitioner as a matter of law nor is there any estoppel by failure to object to evidence. At the beginning of the first hearing, the attorney for the respondent stated that the sole question was the extent of permanent disability. Neither of the lawyers referred to an operation during the trial nor did the doctors refer to it except that the deputy director asked Dr. Ein and Dr. Cardinale if they thought that surgery was indicated and they replied in the negative.

Of course, even where a matter is res adjudicata it is only res adjudicata as to the condition of the petitioner at the time of the original judgment, and a workman whose condition changes and becomes worse is not estopped from seeking further treatment. Ducasse v. Walworth Mfg. Co., 1 N. J. Super. 77 (App. Div. 1948). As a matter of fact, in the case of Lazzio v. Primo Silk Co., 114 N. J. L. 450 (Sup. Ct. 1935), there was no increased disability before the treatment. The rule is stated in Ducasse v. Walworth Mfg. Co. as follows: “Where injured employee used reasonable care in the selection of physicians and submitted to surgical operation which was unsuccessful and aggravated the original injury; held, employee is entitled to recover compensation for increased permanent disability resulting therefrom.”

The deputy director thought that the petitioner in this case is indirectly attempting to appeal the prior decision that no surgical treatment was .indicated, but this is not what the petitioner is doing. The petitioner does not claim that at the time of the original determination he needed surgery but he claims that afterwards he went back to work as a blacksmith and that his condition became worse, and that because it became worse it was necessary to seek the services of Dr. Weigel, an eminent surgeon, and that the operation was performed because of his worsened condition, and resulted in increased disability. Obviously Dr. Weigel could not treat the man in any condition except in the condition in which he found him at the time some months after the award. Dr. Weigel had no previous knowledge of the case since he had had no connection with it until some time after the original hearing and award. "Had the petitioner thought at the original hearing that he needed an operation at that time he no doubt would have asked for it. We must remember that the petitioner’s work is that of a blacksmith and he would be in a good position to know whether his injured back had gotten worse after he had resumed work at his trade. It is not likely that he would have consented to a painful operation unless he felt that it was necessary at the time it was performed. It is interesting to note that nobody connected with the respondent was produced to give any evidence of his work and outward appearance at the time he says he quit because he couldn’t go on. On the contrary he said he discussed the matter with Mr. George Mintz, the plant manager, but got no results, and Mr. Mintz has not been called to contradict this nor to show what he observed about the man if anything at the time when he stopped work. Neither was his helper called.

Of course, on the question of good faith all the circumstances must be considered, including the finding of the deputy director at the first hearing, that operative surgery was not indicated at that time, but we must look at these things from the standpoint of all the evidence. The petitioner is not a lawyer nor a surgeon nor an X-ray specialist and he did what any ordinary person would naturally do under the circumstances. He knew what the attitude of respondent’s doctors was from what they had said at the first hearing. To require a workman to give notice that he intends to-seek treatment would be introducing conditions and refinements into the Compensation Act which are entirely out of place as a general rule, and the facts do not justify such a requirement in this particular case. Besides, there is the element of loss of time involved in first giving notice of needed extra treatment. As a matter of fact, although the petitioner did not give any formal notice of a request for an operation he says that he asked Mr. George Mintz, plant manager, for an operation at the time he quit work after the award and was refused, and Mr. Mintz was not called to contradict this. As the court said in Lazzio v. Primo Silk Co., supra, we must take into consideration that the act deals with human beings and that there is a human impulse to seek relief even where the case has been regarded as hopeless. The petitioner here is not seeking the costs of the operation and medical or hospital bills since there was no formal request for an operation, and petitioner’s attorney at the second hearing expressly said that there was no claim being made for these expenses, so that the lack of request for an operation if it existed could only be relevant on the question of good faith.

I find that at the first hearing surgery was not reasonably indicated but that thereafter petitioner returned to work and his condition became worse and that because of his worsened condition he sought the services of Dr. Weigel, who performed an operation as part of his treatment for the man’s worsened condition, and that the operation was necessary for his worsened condition in which Dr. Weigel found him at the time: that petitioner was fully justified in following the advice of Dr. Weigel and submitting to the operation, and that petitioner used reasonable care in the selection of a physician and surgeon. It is true that there were underlying and preexisting physical defects and disabilities but these could not be raised to defeat an award for compensation in this case, and of course, the petitioner need only prove his right to recovery by the ordinary rules of evidence which are set forth in Ducasse v. Walworth Manufacturing Co., and need not be repeated. I find that the Bureau had jurisdiction to hear the merits of petitioner’s claim.

It is, therefore, ordered on this 13th day of April, 1951, that this cause be remanded to the Division of Workmen’s Compensation in order that the merits of his claim for increased disability may be adjudicated, under the provisions of the Compensation Act.


source: Caselaw Access Project

author: Xaugheight, J. O. C.

license: Public Domain

text:
    MARGARET PTAK, PETITIONER-APPELLANT, v. GENERAL ELECTRIC COMPANY, RESPONDENT-RESPONDENT.
    Essex County Court Law Division
    Decided April 20, 1951.

      Mr. Morton 8tavis, attorney for the petitioner-appellant.

      Messrs. McCarter, English and 8iuder (Mr. Verling C. Enteman appearing), attorney for the respondent-respondent.
   Xaugheight, J. O. C.

The petitioner appeals from a determination as amended by subsequent order entered by the Deputy Director of the Workmen’s Compensation Division which granted the respondent’s motion to dismiss the petition, made at the close of the petitioner’s case, on the ground that the evidence does not show petitioner sustained an accident arising out of and in the course of her employment within the meaning of the Workmen’s Compensation Act. The deputy director found “that the petitioner has not proven that she sustained an accident arising out of and in the course of her employment with the respondent but rather the proof was that her condition was merely an occupational one.”

The testimony in the case up to this point is briefly as follows:

The petitioner testified that her regular work was that of stem operator which required mainly using her fingers; that on the night of November 21, 1949 she was assigned to different work, inspection of lamps, which involved also the “making” of boxes requiring that a cardboard box be picked up, folded and placed on the floor again every three minutes; that the job was so fast that she could not do it; that this work commenced at 3:30 in the afternoon of this day; that about 9 :00 P. M. during this bending operation she experienced pain in the lower part of her back and “could not straighten up”; that she continued working for ten or fifteen minutes and then asked her foreman for a helper which he assigned to her about a half-hour later; that she told him that her arm, which he knew she had injured ten months before, was bothering her because she did not want to complain about her back; that the balance of the evening she was no longer required to perform the bending operation; that the following day and for the rest of the week she worked at her regular sitting job as stem operator; that during this week she continued to experience pain and treated herself; that the following Monday, November 28, she was again put on inspection work and worked all day without a helper although she felt pain; that she did not ask for a helper because she thought the pain would go away; that on Tuesday, November 29 she had pain in her back and legs and could not report for work; that on Wednesday, November 30, she called Dr. Charles Elax who saw her that day and on numerous occasions thereafter; that he gave her a prescription, strapped her back, gave diathermy treatments and prescribed a back supporter.

Dr. Elax testified that he first saw the petitioner at her home on Nobember 30, 1949 and found her complaining of pain in the lower back region which at that time he diagnosed as a lower back sprain; that he treated her on numerous occasions through April 1950 giving diathermy treatments and restrapping her back.

Dr. Max Kummel testified that he examined the petitioner on September 11, 1950 and that his diagnosis was a right sacroiliac sprain. In reply to a hypothetical question encompassing in substance the above facts, Dr. Kummel testified that in his opinion the condition and the disability of seven and a half per cent of total which he found in his examination is causally related to the incident of November 21, 1949.

The respondent stipulated that it had actual knowledge of the occurrence of an alleged incident within the time required by the Workmen’s Compensation Act.

This court does not agree with the tribunal below that the petitioner’s proofs show that her condition was merely occupational.

In Liondale Bleach Works v. Biker, 85 N. J. L. 426 (Sup. Ct. 1914) the court established the time-honored test “that where no specific time or occasion can be fixed upon as the time when the alleged accident happened, there is no injury by accident.” The court went on to say that “There may indeed be compensation awarded for the resulting conditions where you can once put your finger on the accident from which they result.”

In Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512 (E. & A. 1939), the court defined an occupational disease as one “that from common experience is visited upon persons engaged in a particular occupation, in the usual course of events. It is one that is incidental to the employment itself, e. g., painters become affected with lead colic or lead poisoning; telephone operators develop ear trouble; phosphorous poisoning is common to those who work in the ■ manufacture of fireworks.” The court went on to explain that “In such instances they are injuries or diseases common to workers in those particular trades and, manifestly, do not usually arise by accident as the term ‘accident’ is commonly understood.”

In Glick v. Wright Aeronautical Corp., 24 N. J. Misc. 94 (C. P. 1945), affirmed 134 N. J. L. 436 (Sup. Ct. 1946), the Court of Common Pleas said:

“I am convinced that the term ‘injury’ as used in the Workmen’s Compensation Act, N. J. S. A. 34:15-1, et seq., comprehends only such injuries as are accidental in origin and cause and not such conditions as are regularly expected as the result of a person doing his regular work in the regular way without the intervention of an undesigned, unintended or unexpected occurrence.”

In applying the foregoing tests to the facts in the case sub judice this court finds that where the uncontradicted proofs of the petitioner point to a specific time of alleged accident, i. e., 9:00 P. M. on November 21, 1949, and where there has been no showing that the condition is common to workers in the trade, and it is indicated that the work in which she was engaged at that time was not her regular work being done in the regular way, the finding that the petitioner has shown an occupational condition is not justified by the proofs submitted.

It is uniformly held that where an employer seeks to attribute disability to a cause for which he is not responsible, the burden of proof in that regard is on the employer. Serignese v. Air Reduction Sales Co., 135 N. J. L. 311 (Sup. Ct. 1941).

It remains to be determined whether upon the facts and the law the petitioner has shown a right to relief. Rule 3:41-2. On a motion to dismiss, the court cannot weigh the evidence but must take as true all the evidence which supports the view of the party against whom the motion is made, and must give him the benefit of all legitimate inferences which are to be drawn therefrom in his favor. Andre v. Mertens, 88 N. J. L. 626 (E. & A. 1915); Visaggi v. Frank’s Bar & Grill, 4 N. J. 93 (1950).

In order to make this determination in the light of the testimony presented by the petitioner and governed by the foregoing rules, it is necessary to consider whether the petitioner has established a prima facie claim by showing an injury which resulted from an accident arising out of and in the course of employment within the Workmen’s Compensation Act, R. S. 34:15-7, as interpreted by the courts.

An 'accident is an unlooked for mishap or untoward event which is not expected or designed, Bryant v. Fissell, 84 N. J. L. 72 (Sup. Ct. 1913), an event happening at a specific time or occasion, Dawson v. E. J. Brooks, 134 N. J. L. 94 (Sup. Ct. 1946). It is not necessary that an accidental injury to be compensable be the result of traumatic force. Bollinger v. Wagaraw Building Supply Co., supra.

The .courts have held that in any case an accident will not be found unless the evidence establishes a definite, particular strain or exertion incident to the employment.. Sunkimet v. Senger Coal & Ice Corp., 137 N. J. L. 103 (Sup. Ct. 1948), and cases cited. The fact that the strain or exertion was not an unusual one is no ground for denial of an award. Mills v. Monte Christi Corp., 10 N. J. Super. 162, 76 A. 2d 839 (App. Div. 1950).

It is apparent from the testimony of the petitioner that the job was so fast that she could not do it, and that a bending operation was required every three minutes. There-was exertion incident to the employment.

In addition to strain or exertion incident to employment, the petitioner must also show a causal connection between the work done and the injury complained of, i. e.3. that it is related to or affected by the employment—that the employment was a contributory cause. Ciocca v. National Sugar Refining Co., 124 N. J. L. 329 (E. & A. 1940).

It is also to- be noted that the petitioner need only establish that the claimed conclusion from the facts is a probable or-a more probable hypothesis with reference to the-possibility of other hypotheses. Sunkimet v. Senger Coal & Ice Corp., supra.

The instant case in many respects would seem to be similar to that of Wright v. Westinghouse Electric & Mfg. Co., 134 N. J. L. 581 (Sup. Ct. 1946), affirmed per curiam 135 N. J. L. 460 (E. & A. 1941), where the court held that the testimony of the workman that he suffered a strain while moving a desk was sufficiently corroborated by events and medical testimony to justify the refusal of a nonsuit notwithstanding the petitioner failed to immediately report the accident, had applied for sick benefits, and the testimony of fellow workers was of a negative character. See also Van Meter v. E. R. Morehouse, Inc., 13 N. J. Misc. 558 (Sup. Ct. 1935), cited with approval in the Mills case, supra, in which the court found that

“Obviously, the sprain to the back from the excessive tugging from the protracted work of the morning was one of the contributing causes without which the old arthritic condition would not have occurred. The employee testified that while he was pulling out great weeds and hushes he experienced a pain in his back. * * * A sprain of the back, and such it was pronounced by competent medical opinion, is obviously an accident, and as it arose out of and in the course of the employment, the prosecutor was entitled to compensation.”

After careful review of all the testimony in this case in the light of the applicable principles of law, it is the determination of this court that the proofs of the petitioner are sufficient to establish prima facie the elements of a compensable accident.

The determination of the deputy director dismissing the petition is reversed and the case remanded to the Workmen’s Compensation Bureau for further proceedings.


author: ZrRGJHiswnt, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ENIS FINATE AND MADELINE FINATE, DEFENDANTS.
    Hudson County Court Law Division
    Decided April 18, 1951.

      JLr. Joseph P. Manrahan, for the defendants.

      Mr. Horace K. Roberson, Prosecutor of Hudson County {Mr. Franh J. V. Gimino, Assistant Prosecutor, appearing), for the State of New Jersey.
   ZrRGJHiswnt, J. C. C.

Enis Einate and Madeline Einate, defendants, appeal from judgments of conviction rendered against them by the Municipal Court of Weehawken, New Jersey, on October 2, 1950, in which they were adjudged guilty of violating R. S. 2 :202-8, commonly called the Disorderly Persons Act. The specific charge against Enis Einate is that on September 17, 1950, at 7:30 P. M., or thereabouts, said Enis Einate did utter certain loud and offensive or indecent language from the yard of 168 High-wood Avenue, Weehawken, New Jersey; the specific charge against Madeline Einate is that on July 12, 1950, at 7:30 P. M., or thereabouts, and again on September 17, 1950, at 7:30 P. M., or thereabouts, said Madeline Einate did utter loud and offensive or indecent language, on both occasions, from the porch of 168 Highwood Avenue aforesaid. Each of the defendants was fined $25, and said fines were paid.

It has been established that 168 Highwood Avenue, Weehawken, New Jersey, where it is alleged the offenses were committed, is the home of the defendants. The statute which they are accused of violating reads as follows: “Any person who, being under the influence of intoxicating liquor, shall loiter in any public or gwcm-public place, or in or upon any private property not Ms own within this state, or who, not being under the influence of intoxicating liquor, shall there indulge in and utter loud and offensive or indecent language, shall be adjudged a disorderly person.”

The statute itself indicates that a person cannot be charged with an offense thereunder while on his own property. And to cover this, situation many municipalities have adopted ordinances relating to disorderly conduct upon one’s own property. However, it is immediately apparent that the defendants here cannot be guilty of an offense under this section.

The defendants’ motion to dismiss the complaint, preliminary to .the trial de novo, is opposed by the State on the ground'that the sufficiency of the complaint cannot be attacked in view of Buie 2:11 (h), which now reads to the effect that an appeal of this nature operates as a waiver of defects in the record, the process, or the complaint, and also that an appeal is a consent that the court may, during or before the hearing of the appeal, amend the complaint in any manner, including the substitution of a new charge growing out of the alleged act or acts complained of.

However, the present Buie 2:11 (h) was promulgated and made effective on December 7, 1950. Defendants perfected their appeals on October 27, 1950, at which time Rule 2:11 (h) did not include the provisions above mentioned. The defendants cannot now be deprived of any rights they had at the time of appeal by imposing upon them the provisions of the present rule which were not in effect at that time. The constitutional mandate as to ex post facto laws is applicable to rules of court when such rules have the effect of law. In the instant cases the rights of the defendants which existed on October 27, 1950, the date their appeals were perfected, cannot be altered, decreased or increased by subsequent legislative or court action which is purely prospective in nature and does not indicate any retrospective intent. Neel v. Ball, 6 N. J. 546 (1951). Rule 2:11 provides for the only method of appealing a judgment or order in a criminal cause or proceeding in an inferior court of limited criminal jurisdiction, other than a criminal judicial district court, and such appeal is a matter of right as to those offenses committed after September 15, 1948, the effective date of the Judicial Article of the 1947 New Jersey Constitution. (See State v. Yaccarino, 3 N. J. 291, at p. 296.) And, it necessarily follows that amendment to Rule 2:11 operates only from the date of such amendment and affects only those appeals taken thereafter.

The complaints in both cases will be dismissed, the convictions of the defendants set aside, and all Unes and costs paid by the defendants returned to them.


author: Hughes, J. 0. C.

text:
    IN THE MATTER OF THE APPLICATION OF ANTHONY TRIGNANI FOR ISSUANCE OF WRIT OF HABEAS CORPUS.
    Mercer County Court Law Division
    Decided April 17, 1951.

      Mr. Benjamin Borer, attorney for petitioner, in forma pauperis. '

      Mr. Theodore D. Parsons, Attorney-General of the State of New Jersey (Mr. Euffene T. Urbanialc, Deputy Attorney-General, appearing as Special Deputy Attorney-General), for the Commonwealth of Pennsylvania.
   Hughes, J. 0. C.

On the basis of a verified petition alleging that he was unlawfully detained in the Mercer County Jail, and under the authority of R. S. 2:82-1, et seq., the writ of habeas corpus was granted to the petitioner, Anthony Tlignani, to question the legality of his return to Pennsylvania, under requisition of the Governor of that Commonwealth and the extradition warrant of the Governor of New Jersey, for parole violation determined by the Pennsylvania Board of Parole. Counsel having been appointed for this petitioner as an indigent party, full hearing was had on the return of the writ and the following issues appeared from the facts then developed:

On or about Pebruary 1, 1944, the petitioner, in Pennsylvania, having been convicted of crime, was sentenced to serve not less than three nor more than six years, in the Eastern State Penitentiary. Some days later, he entered upon service of this sentence. On or about August 10, 1945, he was granted parole and released thereon, the maximum period of his parole running to Pebruary 12, 1950 and'being equivalent to the maximum term of such sentence. On January 17, 1949, in Cumberland County, New Jersey, this defendant, on conviction of the crime of kidnapping (R. S. 2:143-1, which prescribes a minimum term of 30-years), was sentenced to serve not less than 30 nor more than 30 years in the New Jersey State Prison. After commencement of the service of such term, for reasons which are not apparent and which were not developed in the evidence on the instant hearing, he was returned to Cumberland County and remained for a considerable time in the county jail there, and early in 1950, appeared in court and entered a plea of nolo contendere to one of several indictments which had been returned against him at the time of the indictment for kidnapping, the said sentence on the latter indictment apparently having been vacated by the court; the plea mentioned was entered to an indictment for larceny, and on the recommendation of the prosecutor of the pleas the court apparently granted motions for orders of nolle prosequi as to the companion indictments, including the kidnaping indictment mentioned.

On the plea to the larceny indictment, sentence was imposed on April 19, 1950, petitioner being ordered to serve not less than three nor more than three years in the New Jersey State Prison. He served this term and upon his release was detained on a "warrant to commit and retain” issued over the signature of the District Supervisor of the Pennsylvania Board of Parole, for return to Pennsylvania for an asserted breach of said parole. An "order for the arrest of paroled prisoner,” marked in evidence here as Exhibit S-l, over the signature of the Chairman of the Pennsylvania Board of Parole, bearing date of April 16, 1948, recites that this petitioner, having been paroled conditionally from the Eastern State Penitentiary, had violated the conditions of his parole and further ordered his arrest for the custody of the Pennsylvania parole authorities. At or near the date of expiration of his maximum term at the New Jersey State Prison and his continued detention in the Mercer County Jail under the warrant above mentioned, formal rendition demand upon, and formal extradition warrant of, the Governor of this State were issued and were before the court in support of the detention warrant mentioned.

The petitioner offered proof that the maximum period of his parole in Pennsylvania expired on February 12, 1950, at a time before he was finally sentenced in the Cumberland County Court on. the larceny charge, which, in view of the vacating of the earlier sentence imposed by that court on the kidnaping charge, seems to have been the only sentence imposed upon the petitioner in New Jersey. The petitioner, therefore, challenges the recital contained in the requisition affidavit on which the rendition demand made by the Governor of the Commonwealth of Pennsylvania was predicated. Such recital of delinquency and parole violation sets out as a cause therefor the kidnaping sentence imposed January 17, 1949 in the New Jersey court, although it is apparent that prior to the imposition of that sentence the parole board in Pennsylvania had declared the petitioner delinquent as having violated the conditions of his parole, although the reasons for such determination of delinquency are not shown in Exhibit S-l.

The petitioner thus contends that since the requisition request of the Commonwealth of Pennsylvania would seem to be predicated upon a conviction of crime during the parole period, which was later vacated and set aside in the New Jersey court, that such delinquency is unsupported from a factual standpoint on the face of the requisition papers and, therefore, that petitioner is entitled to immediate discharge.

It is true that the court of the asylum state on writ of habeas corpus may inquire into the substantive law of the demanding state,- bearing solely, however, on the question as to whether the requisition papers set forth the basic requirements for interstate rendition, as known to the common law under the designation of comity, as regulated under the provision of the United States Constitution, and as referred to in our statutes under the name of extradition. R. S. 2:185-6, et seq. A paroled convict leaving the state even by consent of the paroling authority becomes, on revocation of such parole, a fugitive from the justice of that state within the meaning of the constitutional provision cited, and the extradition statutes executing it. 18 U. S. C. A. 3182; Ex Parte McBride, 101 Cal. App. 251, 281 Pac. 651 (Dist. Ct. App., Cal. 1929) ; Brewer v. Goff, 138 F. 2d 710 (C. C. A. 10, 1943). The limitations of such inquiry necessarily are firmly bound by whether the extradition request is supported by a colorable factual allegation of crime or parole violation in the demanding state and the identity of the accused. There is no question here as to the identity of this accused, and there is further no question that the Pennsylvania Parole Board, rightly or wrongly, officially and by virtue of the Pennsylvania statutes and its authority thereunder, declared the petitioner to be delinquent on parole at a time antedating the expiration of the maximum period of such parole. The validity of this declaration of delinquency and the reason specified as its cause, whether substantial or accurate, may not be inquired into in a court of the asylum state on writ of habeas corpus. This principle has been settled in our State in the ease of In re Colier, 140 N. J. Eq. 469 (E. & A. 1947). It was determined by our former Court of Errors and Appeals that the asylum state has no right to consider the merits of the trial, but only the question of the obligation to surrender the prisoner to the demanding state. The question of his guilt or innocence, or whether his constitutional rights at trial (or as to breach of parole and declaration of delinquency based thereon, as in this case) have been violated, cannot be determined in the courts of the asylum state. These issues are determinable in the courts of the state in which the trial was had, or the parole delinquency adjudicated, and if the petitioner has been, or is, denied there what he conceives to be his constitutional rights, he must apply to the United States Supreme Court for the protection of such rights. Huff v. Ayers, 6 N. J. Super. 380 (App. Div. 1950). It would seem to be inconceivable that a court in the asylum state could inquire into the validity and the merits of the proceedings in the parole board in the demanding state and thereby decide upon the propriety of its action. Eor instance, if the parole board in Pennsylvania had determined that this petitioner had violated his parole conditions by adopting a new residence, or by doing some other act forbidden him by those parole conditions, it would, of course, not be possible for him to litigate the merits of the adjudication of such violation, and consequent declaration of delinquency, on a writ of habeas corpus in this court. In the same sense, it is impossible for this court in this proceeding to inquire into the validity of the action of the Pennsylvania Board of Parole in declaring this defendant delinquent on parole, or in determining as to how much significance there was, in the view of the members of that board, to the conviction and sentence of petitioner in the Cumberland County Court in 1949, despite the later nullification of such sentence.

Por these reasons the requisition papers are substantially and, I think, completely conformable to the necessary basic requirements for interstate rendition, and the writ of habeas corpus granted petitioner is hereby discharged and he is remanded to the Mercer County Jail in custody of the warden. An appropriate order for his removal to Pennsylvania in custody of a transfer agent will be made upon presentation.

       U. S. Const., Art IV, see. 2. “A person charged in any State ■with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.”


author: Hughes, J. C. C.

text:
    IN THE MATTER OF THE APPLICATION OF GEORGE B. ZEE FOR ISSUANCE OF WRIT OF HABEAS CORPUS.
    Mercer County Court Law Division
    Decided April 19, 1951.

      Mr. Henry G. P. Coates, for petitioner, in forma pauperis.

      Mr. Theodore D. Parsons, Attorney-General of the State of New Jersey {Mr. Hugene T. Urbaniak, Deputy Attorney-General, appearing), and Mr. Mitchell 11. Cohen, Prosecutor of the Pleas of Camden County {Mr. Benjamin Asbell, Assistant Prosecutor, appearing), for the State.
   Hughes, J. C. C.

On the basis of a verified petition alleging his unlawful imprisonment in the New Jersey State-Prison, the writ of habeas corpus was issued to George B. Zee under the authority of R. S. 2:82-l, et seq. The State made its return and justified its detention of petitioner in conformity with a commitment of the former Camden County Court of Quarter Sessions, evidencing that on October 22, 1941,'there was imposed upon him therein a sentence to the state prison for the duration of his natural life. Conviction had been had on an indictment charging breaking, entering and larceny and also prior convictions of defendant of three high misdemeanors, and sentence was imposed upon him under R. S. 2:103—10, as amended L. 1940, c. 219, p. 889, § 3.

The hearing on the writ accomplished little, except to provide a general factual basis for the legal contentions of' the petitioner, and his case is determinable without further-amplification of this.factual record.

The principal contentions of petitioner deal with the failure of the State at trial to offer adequate proof of his previous convictions of .crime as alleged in the indictment; his claim that the statute mentioned, which is a part of the Habitual Criminal Act, is unconstitutional as ex post facto legislation;, that the statute is also unconstitutional as providing cruel and unusual punishment for the offense which may precipitate-its application, which may -be a comparatively minor violation of the criminal law; and finally, that he was denied, unlawfully, a trial by jury in violation of his constitutional right thereto. The petitioner asserts that on each and every one of these grounds the court lacked jurisdiction to convict and sentence him and such claimed lack of jurisdiction is indeed the only basis on which he can seek the intervention of this court on habeas corpus. In re Caruso, 135 N. J. L. 522 (Sup. Ct. 1947).

There is no doubt that the application of the Habitual Criminal Act depends upon the furnishing of adequate proof of the prior offenses, for it is well settled that proof of every act necessary to make the law apply is essential; that the court may not take judicial notice of the record of prior convictions; that the burden of proving the prior convictions and the identity of the defendant as being the same person previously convicted rests with the State and must be established beyond a reasonable doubt. State v. Lutz, 135 N. J. L. 603 (Sup. Ct. 1947); Singer v. United States, 278 Fed. 415 (3 C. C. A. 1921); State v. Janiec, 9 N. J. Super. 29 (App. Div. 1950); State v. Burns, 136 N. J. L. 601 (E. & A. 1948).

But, though a failure to meet these standards at trial will invalidate the conviction on appeal, such deficiency in proof does not go to the jurisdictional capacity of the court and hence is not remediable on habeas corpus. In re Caruso, supra; In re Hall, 94 N. J. Eq. 108 (Ch. 1922); In re Scridlow, 124 N. J. L. 342 (Sup. Ct. 1940); In re Cooley, 12 N. J. Super. 97 (Cty. Ct. 1951). That writ may not be used in lieu of appeal. In re Rose, 122 N. J. L. 507 (Sup. Ct. 1939). The fact that the time for appeal has expired is of no moment. Ex Parte Hill, 2 N. J. Super. 598 (Law Div. 1949); In re Tremper, 126 N. J. Eq. 276 (Ch. 1939).

The petitioner initially challenges the constitutionality of the statute, which he asserts is ex post facto because it permits that there be shown in evidence against the defendant charged thereunder, previous criminal offenses committed before the effective date of the act. The act as it existed prior to amendment, L. 1927, c. 263, § 1, p. 483, describes the relevant prior offenses, in part, as those entailing service of state prison sentences imposed thereon, whereas the act as amended in 1940, supra, has no such limitation and depends-only upon convictions of crime of the grade of high misdemeanors, regardless of the sentences imposed thereon. Petitioner deems this particularly apropos to his ease because-the previous offenses pleaded against him all antedated the amendment of the statute and on one of them he was granted probation and was not sentenced to the state prison. Hence, he argues that insofar as the application of the amended act is made to depend on previous offenses of different character than those mentioned in the law in effect when those offenses were committed (L. 1927, supra), the Habitual Criminal Act, as so amended, is ex post facto in that it alters the grade of proofs necessary to bring him within its orbit. This argument is akin to the legal assaults which have been made on habitual offender statutes, namely, that the act punishes the prior offenses and hence is ex post facto.

This reasoning is fallacious. Habitual offender statutes, such as the one in effect here, do not undertake to-punish again for the prior offenses. They enhance the punishment for the subsequent offense. A statute is not constitutionally offensive which enhances the punishment for the offense which culminates the repetitive criminal conduct, even though the prior offenses occurred before the statute was-enacted or became effective. Such legislation is held not to increase the penalty for the prior crimes, but only to impose punishment for the latter, the gravity of which is increased by the persistence of the accused in criminality.

“A law is not objectionable as eos post facto which, in providing for the punishment of future offenses, authorizes the offender’s conduct in the past to be taken into the account and the punishment to be graduated accordingly. Heavier penalties are often provided by law for a second or any subsequent offense then for the first; and it has not been deemed objectionable that, in providing for such heavier penalties, the prior convict ion authorized to be taken into the account may have taken place before the law was passed. In such case, it is the second or subsequent offense that is punished, not the first. * * *” Cooley, Const. Lim. 553.

Plainly, the theory of this enhancement of punishment is aimed at criminals of the recidivous type and the punishment for the culminant offense is greater not by relation back to the previous offenses, but only because such criminal has brought himself within a class established by law as deserving and requiring a more severe punishment and restraint than the class of criminals less hardened to crime. Blackburn v. State, 50 Ohio St. 428, 36 N. E. 18 (Sup. Ct., Ohio, 1893). The punishment is for the new crime only, but is the heavier if the offender is an habitual criminal. The statute thus imposes a punishment on none but future crimes and is not ex post facto. It affects alike all persons similarly situated and, therefore, does not deprive anyone of the equal protection of the laws. McDonald v. Massachusetts, 180 U. S. 311, 45 L. Ed. 542, 21 S. Ct. 389 (1901); Carlesi v. New York, 233 U. S. 51, 58 L. Ed. 843, 34 S. Ct. 576 (1914). The courts have held quite uniformly to this theory in approving staf utes expressing this policy of enhancing punishment for the habitual criminal. 116 A. L. R. 211, n. It is the consensus that the habitual criminal statute is sound in principle and sustained by reason. Aside from the offender and his victim, there is always another party concerned in every crime committed, namely, the State; and it does no violence to any constitutional guarantee for the State to enhance the punishment for second or subsequent offenses. The true ground upon which these statutes are sustained is that the punishment is awarded for the second offense only and that in determining the amount and nature of penalty to be inflicted, the Legislature may require the courts to take into consideration the persistence of the defendant in his criminal course. 25 Am. Jur., Hab. Crim., p. 261; People v. Brophy, 287 N. Y. 132, 38 N. E. 2d 468 (Ct. App., N. Y., 1941), cert. den. 317 U. S. 625, 87 L. Ed. 506, 63 S. Ct. 62 (1942).' This type of legislation was established very early in this country, and the United States Supreme Court has commented that it has uniformly been sustained in the state Courts. Graham v. West Virginia, 224 U. S. 616, 56 L. Ed. 917, 32 S. Ct. 583 (1912).

And our New Jersey courts have quite strongly defended the ability of the modern state by comparable legislation to reach and rid itself of the scourge of habitual criminality, within constitutional boundaries^ as a matter of necessary public policy. State v. Pius, 118 N. J. L. 212 (Sup. Ct. 1937); State v. Bell, 15 N. J. Misc. 109 (Sup. Ct. 1937), affirmed State v. Gaynor, 119 N. J. L. 582 (E. & A. 1938).

Coming now to the claimed unconstitutionality of this act as providing cruel and unusual punishment, in that the' culminant offense punished (“* * * and who shall thereafter be convicted of a subsequent offense enumerated in this subtitle, * * *” N. J. S. A. 2:103-10, supra.) may be one of comparatively minor character, it is the sense of this contention by petitioner that the court under this statute is obliged to impose a' life sentence even though the terminal crime involved might be one which would not in itself seem to warrant such severity. It is true that the subtitle referred to is a somewhat comprehensive tabulation of crimes under the law of this State, ranging from offenses of the gravity of treason and murder to others such as the defacement of signposts and like offenses (R. S. 2:148-12), which, while of comparatively minor nature, are classified as misdemeanors. Whatever may be the legislative wisdom in conjoining the mandatory sentence prescribed by N. J. S. A. 2:103-10, supra, with the catch-all subtitle establishing statutory crimes in this State, on which the court is not free to comment, there is little doubt of the existence of such legislative power. The fixing of penalties for crimes is a legislative function. What consiitutos an adequate penalty is a matter of legislative judgment and discretion and the courts will not interfere therewith unless the penalty prescribed is clearly and manifestly cruel and unusual. Schultz v. Zerbst, Warden, etc., 73 F. 2d 668 (10 C. C. A. 1934); Moore v. Aderhold, Warden, etc., 108 F. 2d 729 (10 C. C. A. 1939). While the difficulty in determining precisely what is meant by cruel and unusual punishment has been recognized (Cooley, Const. Lim. 694), the United States Supreme Court has dealt exhaustively with the subject (Weems v. United States, 217 U. S. 349, 54 L. Ed. 793, 30 S. Ct. 544 (1910)), and that court has held that the enhancement of punishment by way of added imprisonment does not amount to the infliction of cruel and unusual punishment. Graham v. West Virginia, supra; Beland v. United States, 128 F. 2d 795 (5 C.C. A. 1942), cert. den. 317 U. S. 676, 87 L. Ed. 543, 63 S. Ct. 157, rehearing den. 317 U. S. 710, 87 L. Ed. 566, 63 S. Ct. 205 (1942).

Our former Supreme Court, in upholding the constitutionality of the former act (L. 1927, c. 263, supra), which, of course, left the imposition of life sentence discretionary with the court (In re Caruso, 131 N. J. L. 505 (Sup. Ct. 1944); Id., 135 N. J. L. 522 (Sup. Ct. 1947), supra) commented approvingly on People v. Gowasky, 244 N. Y. 451, 155 N. E. 737 (Ct. App., N. Y., 1927), which construed and approved the mandatory feature of the fourth-term sentence under the habitual offender statute in that state. And although the culminant offense bringing that statute into operation mast have amounted to a felony (as distinguished from an “offense enumerated in this subtitle,” as contained in our statute), Judge Crane there conceded the possibility of unhappy operation of the statute in the isolated case, and the inability of the courts to avoid if, as follows:

“This may work extreme hardship in certain cases where the sentencing judges would be justified in feeling that the punishment was too severe for the nature and circumstances of the crime or crimes committed, but these are matters for the Legislative or the Executive. Courts have no inherent power to modify statutes to meet exceptional cases. Courts declare the law as it is.” People v. Gowasky, supra.

I think the same principle must apply here and that the mandatory life sentence provided in our statute does not inflict a penalty which is so “clearly and manifestly cruel and unusual” (Schultz v. Zerbst, Warden, etc., supra) as to justify its classification as unconstitutional.

The final point of the petitioner also raises a question going to the jurisdiction of the court which sentenced him. Upon this indictment, he was entitled to a jury trial on the basis of constitutional guarantees which need not be reviewed. The statute, R. S. 2:191-1, provides a formula, contended by petitioner to be an exclusive method for the waiver of jury trial on any offense, as here, triable before the former Court of Quarter Sessions. This method required certain basic formalities, including a written waiver by the prisoner and a request to be tried before the former Court of Special Sessions, a report thereof to the judge of such court and the decision of that judge to approve such request, and to proceed to hear the case in such Special Sessions. None of this procedure was followed in the petitioner’s case, but upon his appearance and plea of not guilty before the judge of the former Court of Quarter Sessions, and while represented by counsel, action was taken which resulted in the clerk of the court endorsing in his minutes, “trial by jury was waived bjr consent.” No stenographic transcript of any of the proceedings is now available. The minutes further indicate that the trial proceeded, witnesses were called by the State, the defendant took the stand and testified in his own behalf, the court deliberated on its verdict and convicted the defendant on certain counts of the indictment. On this conviction, petitioner was duly sentenced the New Jersey State Prison for the term of the balance of his natural life. Nothing appears in the minutes inconsistent with a full and voluntary participation by petitioner and his counsel in the trial. Petitioner was received at the prison io commence service of his term on October 23, 1941. His instant petition for habeas corpus was verified and filed by him in June, 1950. On his application, counsel was appointed for him as an indigent party, a hearing came on in due course and the parties were given leave to file briefs. Supplemental briefs were found necessary and were filed.

The petitioner presently contends that he was unlawfully deprived of trial by jury. There is no doubt of his cooperation in that procedure, although the ineffectiveness thereof to confer jurisdiction on the court is emphasized. Richardson v. State Board, etc., 98 N. J. L. 690 (Sup. Ct. 1923); State v. O'Leary, 110 N. J. L. 36 (E. & A. 1933); Hopt v. Utah, 110 U. S. 574, 28 L. Ed. 262, 4 S. Ct. 202 (1883). He does not explain the lapse of almost nine years in complaining of the alleged unwarranted loss of his liberty for the term of his life! On the basis of this field of circumstance, the State moves now to dismiss the writ.

T think this motion is well taken and I decline to explore into the merits of petitioner’s present claim of jurisdictional incapacity in the Quarter Sessions, basing my action on the reasoning of the late Vice-Chancellor Buchanan in In re Tremper, supra. In that case the learned court, in the face of a contention that the most important jurisdictional elements were absent in the trial of a homicide case, declared the right of a court, oven under such circumstances, to withhold the writ of habeas corpus in the exercise of a sound judicial discretion. In that case, defendants had acquiesced in being tried for murder by a jury of 11 persons, one juror having become ill during trial; here the petitioner assertedly waived jury trial in the Quarter Sessions. There the defendants took no appeal, although ample time existed therefor; neither did this petitioner. There the applicants waited 4I/> years to appeal to a court on habeas corpus for the protection of their constitutional rights; this petitioner has waited almost twice as long.

On appeal from the vice-chancellor’s decision in that case (In re Tremper, 129 N. J. Eq. 274 (E. & A. 1941)), our former Court of Errors and Appeals rested its affirmance of the discharge of the writ on a different ground, i. e., that although conviction hy the 11-member jury was erroneous and would have fallen on appeal, the jurisdiction of the court remained unimpaired and the error was, therefore, not remediable by habeas corpus. As I understand that decision, however, it did not foreclose nor disapprove the principle expressed in the vice-chancellor’s discharge of the writ on the somewhat startling theory that although it is uniformly conceded that lack of jurisdiction of the subject matter in a court renders the judgment of that court nugatory and open to collateral attack, there must come a time when litigation thereon is impossible, at least by habeas corpus.

The compelling logic of the decision of that lower court applies with equal force to the instant application. Here this petitioner, charged by indictment with an offense which, on conviction, would subject him to a life sentence, appeared in court with apparently qualified counsel, entered a not guilty plea, waived jury trial, was tried, convicted and sentenced. He made no objection during trial. He made no outcry on the imposition of sentence. He took no appeal. He made no application to the trial court for relief. So far as the record before me indicates, he made no earlier application for habeas corpus on discovery of the loss of the fundamental constitutional safeguard of jury trial. He shows no special circumstances which would explain this delay. Meanwhile, in the ordinary course of events, it may be presumed that witnesses for the State have died or disappeared and certainly the testimonial assets of the prosecution have been dissipated with the passage of time.

The most grievous and fundamental trial errors, such as the admission of hearsay or other inadmissible evidence, could have brought about this petitioner’s conviction in 1941, and yet his right to relief would have been foreclosed after the time for appeal had run. Why should he then be permitted to wait many additional years before complaining of “jurisdictional” errors in the making of which he acquiesced and cooperated? Or, as stated in In re Tremper, 126 N. J. Eq. 276, supra,

“How can it be said that although a defendant claiming a nonjurisdietional but grievously harmful error, is prevented by the statutory provisions (prescribed by the legislature as expressing that which is just and right), from having his claim entertained by any court after one j'ear from the imposition of sentence, nevertheless a defendant claiming a jurisdictional error * * ®, ought as a matter of fairness, justice and right, to be entitled to have his claim entertained, on habeas corpus, four or five years after the imposition of sentence? And if four or five years after, why not ten or twenty or thirty years after?”

T think the answer to this question must also be found in the reasoning of the opinion last cited, as follows:

“True it is that it is the public policy of this state that all due safeguards against injustice, and all constitutional rights, should be preserved to persons accused of crime; and that a court, on habeas corpus, has the corresponding judicial responsibility of endeavoring to see to it that that policy is properly carried out. But it is equally true that it is the public policy of this state, and to the interest of its citizens, that those guilty of crime should not go unpunished; that there should not be undue litigation; and that where the state has provided for the person accused of crime, by means other than habeas corpus, all due and reasonable opportunities for him to obtain for himself the enforcement of the legal and constitutional rights to which he is entitled, he should not be permití ed either to harass the state and its citizens by further repeated attempts by legal proceedings to litigate over again that which has been definitely determined against him, nor to endeavor to accomplish a fraud and imposition upon the state and its citizens under the guise of an effort to obtain the benefit of his legal and constitutional rights aforesaid after having had full and ample opportunity to obtain those benefits. As to this, also, the court, on habeas corpus, has a corresponding judicial responsibility.”

The writ of habeas corpus, while not a writ of course, is sometimes said to be a writ of right, when cause is shown for its issuance. In re Thompson, 85 N. J. Eq. 221 (Ch. 1915); In re Gottsmann, 141 N. J. Eq. 271 (E. & A. 1948). If it be true that decision to issue the writ rests in the sound judicial discretion of the court, as a matter of fairness, justice and right, which is hardly open to question (In re Thompson, supra), then the instant case is one in which the writ definitely should not have issued.

I adhere to the theory of the opinion of the former Court of Chancery expressed in the Tremper decision, 136 N. 3. Eq. 376, supra, and, again for the protection of the rights of this petitioner, I record that on the ground last cited, as well as that questioning the sufficiency of the proofs under the indictment, I determine that the writ was improvidently issued, and should be quashed and discharged as though the writ had been denied on application therefor. On the grounds challenging the constitutionality of the Habitual Criminal Act, the writ may have properly issued (see In re Bose, supra) and in view of my determination 'that such statute is valid, I deny release on habeas corpus, discharging the writ after hearing on the merits.

The writ is, therefore, discharged and the petitioner remanded to custody.

       “2:103-10. Habitual criminals; fourth offense; life sentence-to be imposed.
      Any person who on three separate occasions has been convicted of high misdemeanors in this State, or of crimes under the laws of the United States or of any other State or country, which crimes-would be high misdemeanors if committed in this State, or whose-convictions for such offenses in this State or under the laws of the United States or of any other State or country shall total three or-more, and' who shall thereafter be convicted of a subsequent offense-enumerated in this subtitle, is hereby declared to be an habitual criminal, and the court in which such fourth or subsequent conviction is had, shall impose a life sentence in the State Prison upon the person so convicted.” As amended L. 1940, c. 219, p. 889, § 3.

       “2:103-10. Habitual criminals; fourth offense; life sentence-may be imposed.
      Any person who has been three times convicted of crimes enumerated in this subtitle and sentenced each time to the state prison, and has served such three sentences so imposed, or any part thereof, and who shall thereafter be convicted of a subsequent offense enumerated in this subtitle, is hereby declared to be an habitual criminal, and the court in which such fourth or subsequent conviction is had, in imposing sentence, may, in its discretion, impose a life sentence in the state prison upon the person so convicted.”

       “The courts in habeas corpus proceedings are not bound by any hard and fast rules of procedure or of pleading, and oft-times issue the writ (where there seems on preliminary inspection of the petition a reasonable likelihood that petitioner is entitled to the writ) leaving until consideration of the whole case, the actual determination of the question as to whether petitioner was entitled to have the writ issue.” In re Tremper, 126 N. J. Eq. 276, at p. 293, supra.


author: Ekancis, J. C. C.

text:
    IN THE MATTER OF THE ESTATE OF FREDERICK L. FULLER, DECEASED.
    Essex County Court Probate Division
    Decided April 16, 1951.

      Mr. Fredrick J. Waltzinger, appearing for the applicant.
   Ekancis, J. C. C.

Rebecca Bell Erbb was appointed administratrix of the estate of Charles Arthur Bell on December 5, 1950. This appointment followed the entry of judgment by the Surrogate of Essex County declaring Bell, a nonresident of New Jersey, presumptively dead under B. 8. 3:42-16. Thereafter the administratrix, who is a daughter of Bell, made this application for an order directing the payment to her by the surrogate of certain moneys previously deposited with him, as Clerk of the Probate Division of the Essex County Court by executors of the estate of one Frederick L. Fuller.

The executors of the PulleT estate paid about $4,009 into court because they were unable to locate Charles Bell to whom it was bequeathed under the Fuller will.

The Fuller will bequeathed 2/64 of the residuary estate to Bell, but it provided that if he predeceased the testator the share should go to his surviving issue per stirpes and not per capita.

Fuller died April 29, 1943. Whether Bell’s administratrix is entitled to the fund on deposit depends on whether he survived Fuller. If lie did not, then his issue would be entitled to claim it.

The surrogate’s judgment is not a declaration of death under the statute relating to nonresidents. The surrogate has no authority to do so. His judgment is merely a presumption of the death of the nonresident so that assets in this State may be administered.

All the proof submitted on the application for administration shows that Bell was last heard from on or about May 6, 1931. Under the statute (R. S. 3:42-1) or the common law, therefore, Bell is presumed to have died on May 6, 1938. (Meyer v. Madreperla, 68 N. J. L. 258, 265 (E. & A. 1902)). Therefore it would not be proper to direct the surrogate to pay the fund to the administratrix. The effect of this would be to permit disbursement of one-third of the fund to a non-beneficiary under the Fuller will, namely, the widow of decedent.

Under R. S. 3:26-13 et seq. the court may order the payment of the fund on deposit to a person who seems rightfully entitled to it. Consequently, on a proper application, in view of the state of the record-proof here, it would seem proper to order payment to the two children of Bell, who are his only issue.

Since the institution of the proceeding by the administratrix, the children have filed a petition seeking such an order.. This order shall be entered.


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

text:
    EDWARD J. ELWELL, PETITIONER-APPELLANT, v. TOWNSHIP OF NORTH BERGEN, IN THE COUNTY OF HUDSON, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1951
    Decided April 30, 1951.

      Before Judges McGeehan, Jayne and ¥m. J. Brennan, Jk.

      Mr. Joseph V. Cullum argued the cause for appellant (Mr. Joseph V. Oullum and Mr. Max A. Boxer, attorneys).

      Mr. Nicholas 8. 8chloeder argued the cause for respondent.
   The opiidon of the court was delivered by

McGeehan, S. J. A. D.

The Civil Service Commission, after a hearing, entered an order affirming the layoff of petitioner from his position of foreman, streets and sewers, Township of North Bergen, and directing that his name be placed upon, a reemployment list for certification and appointment to the position of foreman, streets and sewers, or any comparable position in the Township of North Bergen, as vacancies occur. The petitioner appeals.

In 1930 the township adopted an ordinance establishing a street department and providing for one superintendent, three foremen and 38 roadmen. The petitioner, Edward J. Elwell,. was appointed a foreman in the road department, and after the adoption of the Civil Service Act by the township in 1947, his position was classified as “Foreman, Streets and Sewers.”' On June 6, 1949, the commissioner of public works notified the petitioner that for reasons of economy his services were-no longer required. Since then, the position has remained unfilled.

The first point advanced is that the dismissal was not a Iona fide attempt to economize, but an evasion of the Civil-Service Law in violation of R. S. 11:22-12, and a case of political discrimination in violation of R. S. 11:22-11.

It is first argued that the layoff of petitioner violated R. S. 11:22-12, which provides:

“No person shall be appointed or employed under any title not appropriate to the duties to be performed nor assigned to perform the duties other than those properly pertaining to the position which he legally holds.”

and East Orange v. Civil Service Commission, 132 N. J. L. 181 (Sup. Ct. 1944) is cited in support. The whole argument is premised on the petitioner’s claim that three foremen are-indispensable if the department as now constituted by the township ordinance is to function on the basis of a group off laborers for each of the three wards of the township. The question which the petitioner seeks to raise does not involve jurisdiction, and since it was neither raised nor considered below, the petitioner should not be permitted to raise it here. State v. Jones, 4 N. J. 207, rehearing denied 4 N. J. 347 (1950). We add, however, that there was no proof adduced' to support the premise. The duties of the petitioner were-absorbed by his superior, the superintendent of public works, without additional compensation and without any apparent change in the proper functioning of the department.

Next, it is argued that the record discloses that the element of politics contributed substantially to petitioner’s dismissal. Assuming this to be so, it is of no aid to the petitioner. The asserted ground was economy and the proofs were insufficient to overcome the presumption of good faith and failed to show impairment of departmental efficiency; therefore, it is of no consequence that other considerations contributed to the layoff. Schnipper v. Township of North Bergen, 13 N. J. Super. 11 (App. Div. 1951); Kessel v. Civil Service Commission, 130 N. J. L. 618 (Sup. Ct. 1943).

The second point is that the dismissal was invalid because the seniority and demotional rights of the petitioner were violated.

Since the position held by the petitioner was created by ordinance and was not abolished, his dismissal was a separation or layoff under R. S. 11:22—9, entitling him to the protection given thereunder. Benzoni v. Dept. of Civil Service, 10 N. J. Super. 103 (App. Div. 1950). Under R. S. 11:22-9 a person separated from the service has the right to have his name placed upon an eligible list for reinstatement when an opportunity arises; but there is no provision for demotional rights. While demotional rights are given by R. S. 11:22-10 to persons whose positions are abolished, this protection has not been extended to persons such as petitioner who are laid off or separated under R. S. 11:22-9. Schnipper v. Township of North Bergen, above.

In the case of a layoff, seniority rights are protected by Eule 51 of the Civil Service Commission. This rule, in pertinent part, provides: “When it becomes necessary in any department, through lack of work or funds or for other causes, to reduce the number of employees in a given class * * * layoff shall be in the order of seniority, the person or persons last appointed being the first laid off.” It does not appear to require what in private employment is termed the “bumping” of employees junior in service in other equal or lesser classifications. Schnipper v. Township of North Bergen, above. Since the petitioner does not claim seniority over'either of the two remaining foremen of streets and sewers in the township, we fail to see how his seniority rights have been violated.

Affirmed.


author: Eastwood, J. A. D.

text:
    NETTIE KAHN AND SAM KAHN, HER HUSBAND, PLAINTIFFS-APPELLANTS, v. KING PETROLEUM CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, AND MILES HOWIE, Sr., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1951
    Decided May 2, 1951.

      Before Judges Eastwood, Bigelow and Pkeund.

      Mr. Nicholas Martini argued the cause for the plaintiffs-appellants.

      Mr. Hugh C. Spernow argued the cause for the defendant-respondent, King Petroleum Corporation (Messrs. Dufy & Ruggiero, attorneys).

      Mr. Charles C. Stalter argued the cause for the defendant-respondent, Miles Howie, Sr.
   The opinion of the.court was delivered by

Eastwood, J. A. D.

The plaintiff, Nettie Kahn, instituted an action against the defendants, King Petroleum Corporation (hereinafter referred to as “the corporation”), and Miles Howie, Sr., for damages allegedly caused by the negligence of defendants in the installation by the corporation of a fuel oil tank in the sidewalk immediately adjacent to the premises of the owner, Miles Howie, Sr., known as 913 Main Avenue, Passaic. At the conclusion of the trial before the Superior Court, Law Division, the court granted the motion of defendant, Miles Howie, Sr., for a judgment of dismissal. The case against the corporation was submitted to the jury which returned a verdict of no cause of action. The plaintiffs appeal from the respective judgments of dismissal and no cause of action.

The. essential facts are: Miles Howie, Sr., contracted with the corporation for the installation of an oil burner in his property. In performing the contract, the corporation excavated a portion of the sidewalk to accommodate the fuel oil tank, which remained open for several days and nights prior to September 16, 1949, when the tank was installed and the dirt filled in, around and over it. At approximately 9:30 o’clock on that night, Mrs. Kahn alleges that as she was walking along the sidewalk, she stumbled and fell over the mound of dirt and rock covering the tank and sustained her injuries; that for three or four nights prior thereto, while the work of installing the tank was going on, she had to walk in the road past Mr. Howie’s premises; that on the night in question and, in fact, during the three or four preceding nights, there were no lights of any kind to indicate “that there was anything there,” nor were there any barricades or railings; that it had the dirt and rock over it and “I couldn’t see it until I fell. It was four or five inches higher than the regular ground”; that when she was picked up on the sidewalk she was four or five feet away from where the tank had been installed. Miles Howie, Jr., son of the defendant, testified that be saw Mrs. Kahn fall and at the time she was walking towards her husband’s car and had passed the site of the installation of the burner; that lie and Mr. Kahn picked her up and assisted her to the car; that the place where she fell was ten feet beyond the excavation. There was other testimony as to the condition of the sidewalk on the night in question; that the hole was covered with rock, slate and dirt piled four or five inches high and that there were no lights, barricades or railings installed at any time.

The plaintiffs contend that (1) “The excavation of a public street for the installation of a fuel oil tank is a nuisance per se and the charge of the court below on this point was erroneous”; (2) .“The owner of real propertv for whose benefit a public nuisance is created is not relieved of all liability by engaging an independent contractor and the judgment of dismissal by the court below in favor of defendant, Miles Howie, Sr., was erroneous”; (3) “The failure to place lights, barricades, or other warning at night around an area in the public street excavated for the installation of a fuel oil tank and filled in with earth and rock scattered over the area constitutes negligence for which the independent contractor is responsible as a matter of law”; (4) “The plaintiff, Nettie Kahn, was not guilty of such contributory negligence or assumption of risk as would bar recovery under the circumstances of this case and the court below erred in its charge on these questions”; and (5) “The verdict was against the weight of the evidence.”

We will deal first with the appeal from the judgment of dismissal. Mr. Howie established that his contract with the corporation called for the installation of an oil burner in his property and, as an incident thereof, the corporation was required to install the fuel tank in the sidewalk and do the necessary work to restore the sidewalk to a proper condition. The proofs reveal that the corporation, in the performance of the contract, exercised exclusive supervision and control over the work; that at no time did Mr. Howie supervise or control the work; that, in fact, he was out of the State for most of the time during the installation of the burner. Under the circumstances, we are of the opinion that the corporation was an independent contractor and, therefore, Mr. Howie is not liable for the damages of the plaintiffs. Nor did the construction in question constitute a nuisance per se. Mann v. Max, 93 N. J. L. 191 (E. & A. 1919) and Savarese v. Fleckenstein, 111 N. J. L. 574 (Sup. Ct. 1933), affirmed 114 N. J. L. 275 (E. & A. 1935). In Mann v. Max, supra, the Court of Errors and Appeals determined that the general rule that a private obstruction of a public street constituted a nuisance was subject to several important -exceptions connected with reasonable use by an abutting owner and that parking a vehicle for a reasonable length of time, obstructing passage to receive or deliver goods, piling building materials during construction of a building and the maintenance of scaffolding and the like incident to construction work were examples of reasonable and lawful use by the abutting owner not appearing to be a nuisance. In that case it was said:

“And the rule is thoroughly settled that where one employs a contractor exercising an independent employment and hiring his own servants to do a work not in itself a nuisance, the contractor alone is liable for an injury resulting from the negligence of himself or his servants, unless the employer is in default in selecting an unskillful or an improper person as contractor. Cuff v. Newark and New York Railroad, Co., 35 N. J. L. 17, 574; Redstrake v. Swayze, 52 Id. 129, 414.”

This position has been consistently followed by our courts. Redstrake v. Swayze, 52 N. J. L. 129 (Sup. Ct. 1889); affirmed Ibid. 414 (E. & A. 1890); Bush v. Margolis, 102 N. J. L. 179 (E. & A. 1925); Savarese v. Fleckenstein, supra; Healy v. Sayre, 113 N. J. L. 308, 311 (E. & A. 1934); Rosenquist v. Brookdale Homes, Inc., 133 N. J. L. 305 (E. & A. 1945) ; Terranella v. Union Bldg. and Construction Co., 3 N. J. 443 (1950) ; Bacak v. Hogya, 4 N. J. 417, 422 (1950). There was no contention nor proof hero that the owner was in default in selecting an unskilled or improper person as a contractor.

So far as the verdict of no cause of action is concerned, we find no error in the court’s submission of the issues of negligence, contributory negligence and assumption of risk to the jury. The record reveals that the question of negligence was a sharply disputed one. Mrs. Kahn testified that she stumbled at the site of the installation and fell to the ground several feet west of it. Miles Howie, Jr., testified that he observed Mrs. Kahn walking west on Autumn Avenue; that she had passed the point of the installation and fell approximately ten feet west thereof. Mrs. Kahn asserts that she stumbled and fell over rocks and gravel from the excavation, whereas Miles Howie, Jr., testified that he observed no such debris. "The general supervisory power of the appellate tribunal which enables it to examine the propriety of jury verdicts and the consequent judgments founded upon them is essentially remedial in character. The power is not exercised with a view of supplanting the appropriate function of the jury. It continues to be preeminently the mission of the jury to resolve the credibility of the testimony of the witnesses, to settle the facts, and to determine the inferences which ought to be logically and legitimately drawn from them. A verdict founded upon logical and legitimate inferences from facts established by evidence is normally conclusive. Smith v. Lorillard Co., 67 N. J. L. 361 (Sup. Ct. 1902).” Taylor v. Public Service Interstate Transportation Co., 13 N. J. Super. 125 (App. Div. 1951). Where, as here, fair-minded men might honestly differ as to the conclusions to be drawn from the proofs, the questions at issue should be submitted to the jury. Antonio v. Edwards, 5 N. J. 48, 52 (1950). Nor do we find anything in the record which would justify a conclusion that the verdict was occasioned b}' the influences of sympathy, or passion, or prejudice, or based upon mistake. Consequently, it should not be disturbed. Nusser v. United Parcel Service of N. Y., Inc., 3 N. J. Super. 64 (App. Div. 1949).

As to thé questions of Mrs. Kahn’s contributory negligence and assumption of risk, we conclude that the court properly submitted those issues to the jury. While the testimony that the corporation had at all times failed to place warning lights, railings and barricades at the scene of its work was not seriously controverted, Mrs. Kahn admitted that she had passed the work in progress for three or four successive nights prior to her accident; that she was aware of the excavation and installation of the tank; and in order to pass the scene of operations, had walked in the street. “One’s right to protection from the negligence of others carries with it the duty of reasonable care for his own safety. The inquiry is whether the traveler, by the exercise of ordinary or reasonable care, would have discovered the danger and avoided it.” Milstrey v. Hackensack, 6 N. J. 400, at p. 414 (1951).

Nor do we find that the court committed any error in charging the jury on the questions of nuisance per se and nuisance resulting from the negligence of the corporation. The plaintiffs contend that the court should have charged the jury, in effect, “that the excavation of the sidewalk for the installation of the fuel tank in the instant case was a nuisance per se * * The plaintiffs, in support of their contention, cite the cases of Durant v. Palmer, 29 N. J. L. 544 (E. & A. 1862) and McHugh v. Hawthorne B. & L. Assn., 118 N. J. L. 78 (Sup. Ct. 1937). An examination of these cases reveals, however, that they dealt with situations where the obstruction was of a continuing nature, thereby incommoding or impeding the public’s lawful use and constituted a nuisance per se. We are satisfied that the court properly held and charged that under the proofs the negligence, if any, of the defendant, was not a nuisance per se but one resulting from the corporation’s negligence. “Nuisance as a legal concept has more than one meaning. Where it does not have its origin in negligence, it is sometimes characterized as an ‘absolute’ nuisance, * * On the other hand, where the nuisance is not an absolute one it may be, as here, grounded in and the result of negligence. Hammond v. County of Monmouth, 117 N. J. L. 11, 16 (Sup. Ct. 1936).

We deem it unnecessary to discuss in detail the plaintiffs’ criticisms of the court’s charge and failure to charge certain requests. Our reading of the entire charge convinces us that the legal principles applicable under the evidence in the case were fairly and adequately presented to the jury; therefore, no error can be predicated on the plaintiffs’ grounds of appeal with respect thereto. O’Brien v. Bilow, 121 N. J. L. 576 (E. & A. 1939); Paolercio v. Wright, 2 N. J. 412 (1949); Kurkjian v. Wolpin, 5 N. J. Super. 429 (App. Div. 1949).

The judgment of the Law Division is affirmed.


author: William J. Bkennan, Je., J. A. D.

text:
    LAWRENCE CORRAO, PLAINTIFF-RESPONDENT, v. WEST JERSEY CORPORATION, A CORPORATION OF NEW JERSEY, AND ELIZABETHTOWN WATER COMPANY, CONSOLIDATED, A CORPORATION OF NEW JERSEY, DEFENDANTS ; WEST JERSEY CORPORATION, A CORPORATION OF NEW JERSEY, DEPENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 16, 1951
    Decided April 25, 1951.

      Before Judges McGeehan, Jayne and Wm. J. Bkennan, Je.

      Mr. Joseph Weintraub argued the cause for respondent (Mr. John L. McGuire, attorney).

      Mr. George J. Goclceler argued the cause for appellant (Messrs. Lakey <& Goclceler, attorneys).
   The opinion of the court was delivered by

William J. Bkennan, Je., J. A. D.

Appellant, West Jer-, sey Corporation, abandoned at the oral argument all points argued in its brief except the proposition that the plaintiff was not, in contemplation of law, its invitee upon that portion of its premises where plaintiff met with the accident for which he .recovered judgment upon a jury verdict returned in the Law Division, Union County. If that proposition be resolved against the appellant, that is, if the trial court properly denied appellant’s motion for judgment and left to the jury the decision to say whether plaintiff was impliedly invited by the appellant to be at that place at that time, then the judgment below must be sustained.

Defendant, West Jersey Corporation, owned a multi-storied office building having several stores on the ground floor. One of the stores was let to defendant, Elizabethtown Water Company, Consolidated. A judgment of dismissal as to the Water Company was entered at the close of plaintiff’s proofs and was not appealed.

Plaintiff, a window cleaner, was employed by Elizabeth Window Cleaning Company which was under contract with the water company to clean the windows on the leased premises. The two windows located at the back of the store faced on an areaway not part of the leasehold but reserved to the lessor’s control. Each of the windows was completely covered with an iron bar grillwork, installed by appellant some years before the water company leased the store. The space between the outer sides of the panes in each window and the grillwork was too narrow to permit the washing of such outer sides from within the demised premises; it was necessary to go outside for that purpose.

Beneath the two windows was a stairwell in the areaway with stairs descending along the wall and used by the landlord’s employees to reach the boiler room in the cellar. The stairwell was covered by a shed-like structure about three feet high erected by the appellant. The structure extended out from the building wall and for most of its length along the wall was flat roofed with a wood covering approximately ten feet long and four feet wide topped with tar paper. That part of it gave the appearance of a platform built level with the bottom of the window sill of one of the windows. The portion of the structure containing the door opening upon the stairway slanted down from the platform edge to ground level; the other window was located a foot or two above the slanted door.

Plaintiff had worked for the window cleaning company only one week and this was the first occasion upon which he washed the water company’s windows. His foreman that day, however, had washed windows on the premises for over 20 years. After the plaintiff and the foreman had cleaned the inner sides of the windows from within the store, the plaintiff went back to the areaway to wash the outer sides of the two rear windows. He stood first upon the slanted door, reached within the iron grillwork and washed the window above that door. Then he stepped up on to the platform to wash the window centered above it. As he stepped toward the window the platform gave way beneath him and he was precipitated into the stairwell, suffering the injuries for-which this suit was brought.

His foreman had cleaned the back windows three or four months previously, standing upon the platform when cleaning the window above it. He testified he noticed at that time that the platform seemed shaky and said that when he finished he notified the appellant’s janitor and complained that it should be fixed. The janitor denied this and also that he had known that the window cleaners stood on the platform while cleaning that window. He admitted, however, that when his own work required, it was his practice to stand upon the platform to clean gutters above the windows.

Plaintiff’s foreman further testified that it was impossible to use a ladder to wash the window above the platform because “that shack is too wide. Ladder stays too far away from the wall. It can’t support a ladder,” and also that the iron grillwork covering the windows makes it impossible to stand in the areaway beyond the structure and to use a pole “because there is iron bar from outside. * * * no could pull the squeegee.” This testimony was contradicted by a witness offered by the defendant, but in the determination of the question argued plaintiff is entitled to have that evidence accepted as true. Cirulli v. Licata, 10 N. J. Super. 449 (App. Div. 1950).

A landlord, who by express invitation or by invitation to be implied from acts and conduct induces a tenant or person admitted by the tenant to make use of premises not part oí the leasehold but within the landlord’s control, is under a duty to exercise ordinary care to render the premises reserved by him reasonably safe for a permitted use. Phillips v. The Library Company of Burlington, 55 N. J. L. 307 (E. & A. 1893). The rule applies not only to the halls, stairs, elevators and other approaches to the part of the land leased to the lessee but also to such other parts of the land or building to the use of which by the express or implied terms of the lease the lessee is entitled. Restatement, Torts, (1934), vol. 2, sec. 360. The tenant and such persons in that circumstance enter the reserved parts of the land on a matter deemed in law to be directly connected with the business of the landlord and are therefore entitled to expect that the lessor will exercise reasonable care to discover and remedy dangerous conditions. Restatement, supra, secs. 343, 360. See also 64 Harvard Law Review 913. at 917 (April 1951).

The water company’s right to enjoyment and use of the leased premises clearly embraced the right to clean its windows and to employ others for the purpose. The fact that in the case of the outer sides of the panes of the back windows cleaning was not possible from within the store because of the presence of the iron gratings supplied a reasonable basis for an implication that the tenant was entitled to enter the rear of the landlord’s premises for the purpose. Restatement, supra, sec. 343. See Sezzin v. Stark, 49 A. 2d 742 (Ct. of Apps. Md. 1946). The case of Schaefer v. Colleoni Realty Co., 4 N. J. Misc. 405 (Sup. Ct. 1926) illustrates the principle. In that case the tenant had covenanted to make repairs. A wash basin attached to a wall became loose. The wall was one of those that enclosed an elevator shaft outside the demised premises. The tenant employed a plumber to attend to the repairs and to make the wash basin secure. The plumber found that to do so it was necessary to drill holes through the wall to insert new bolts and to set up the nuts on the other side of the wall, where the elevator worked. After boring the holes and inserting the bolts he entered the elevator shaft to screw up the nuts. While in the elevator shaft he was injured when the operator ran the elevator. The evidence was in conflict whether the elevator operator had been warned of the plumber’s presence. In that case, as in this case, the only question involved was whether the finder of fact was entitled to find that the plaintiff was in a legal sense invited to be in the pla'ce where he was when injured. It was held that the finding that the plaintiff was an invitee was fully justified in the circumstances, the court stating,, “If proper repairs to the wash basin called for bolts instead of screws, and this was a question of judgment on the part of the plaintiffs, then it would seem .that the tenants were-not only authorized but required to enter the elevator shaft to such reasonable extent as was necessary or convenient to-make these bolts fast, and if they were authorized to do so, they were authorized to employ a proper workman to do this-for them.” We perceive no. distinction based on the.fact that it does not appear in the present case that the water company had expressly covenanted to keep the windows cleaned. The right to clean the windows was an incident to the tenant’s enjoyment of the premises leased and it follows that-the jury might reasonably conclude from all the circumstances that the lessee was impliedly authorized to do that work from the-part of the premises reserved to the lessor’s control outside-of the leasehold. .

Appellant’s argument stresses the point that in any event the invitation would not extend to the use of the platform for that purpose. We cannot say in the circumstances-of this case that this conclusion follows indisputably if we give plaintiff’s proofs, as we must, the benefit of the legitimate-inferences to which he is entitled. Opposite inferences may reasonably ‘be drawn from the evidence on his behalf and in such cases the dispute is for the jury. In this type of action “liability turns * * * upon the question whether the-defendant knew or ought to have known that what he did and permitted to be done might give rise in an ordinarily discerning mind to a natural belief that he intended that to be done which his conduct had led plaintiff to believe that he intended.” Gibeson v. Skidmore, 99 N. J. L. 131 (E. & A. 1923); Creamer v. Levy, 108 N. J. L. 26 (Sup. Ct. 1931). The gist of the liability consists in the fact that the injured party did not act merely on motives of his own to which no act of the landlord contributed, but that he used the facility because he was led by the acts or conduct of the landlord to believe that the facility was intended to be used in the manner in which he used it and that such use was not only acquiesced in but was in accordance with the intention or design for which the facility was adapted or allowed to be used. Gibeson v. Skidmore, supra; Phillips v. The Library Company of Burlington, supra; Black v. Central R. R. Company, 85 N. J. L. 197 (F. & A. 1913); Fort v. Reid Ice Cream Company, 98 N. J. L. 559 (E. & A. 1923); Nolan v. Bridgeton & Millville Traction Company, 74 N. J. L. 559 (E. & A. 1907); cf. Saunders v. Smith Realty Co., 84 N. J. L. 276 (E. & A. 1913). The case is not within the line of cases relieving a landlord of liability as a matter of law when the structure which collapses from the weight or pressure exerted upon it by the person injured was obviously not a structure designed for such use. Gavin v. O’Connor, 99 N. J. L. 162 (E. & A. 1923) (a clothes pole in the backyard); Egan v. Krueger, 103 N. J. L. 474 (E. & A. 1927) (a screen in a window); Saunders v. Eastern Hydraulic Brick Co., 63 N. J. L. 554 (E. & A. 1899) (a mullion in a skylight); Heuser v. Reilly, 128 N. J. L. 533 (Sup. Ct. 1942) (a window moulding); New York & New Jersey Telephone Company v. Speicher, 59 N. J. L. 23 (Sup. Ct. 1896) (cross bar on a telephone pole). This platform had previously been used by plaintiff’s foreman for the very purpose contemplated by plaintiff and, indeed, had been used by the landlord’s own janitor in connection with his duties. These proofs buttressed the inference reasonably to be gathered from its appearance that the platform was sturdy enough to support plaintiff’s weight, and with plaintiff’s evidence that the presence of the platform in juxtaposition to the barred window above it prevented proper washing of the window by nse of a ladder or by standing at a place in the areaway and using a long pole, also warranted the inference .that appellant should have foreseen that the situation would lead an ordinary discerning mind to a natural belief that the platform was open to use as a place from which to wash the window. At the least the question whether the platform was designed only to protect the stairwell from the elements or might in the circumstances reasonably lead a window cleaner to believe that it was provided also for use for the purpose intended by him, is a matter about which reasonable minds on these proofs could honestly differ. In such case the question was one for the jury. Smith v. Mountain Ice Co., 74 N. J. L. 26 (Sup. Ct. 1906); Murphy v. Core Joint Concrete Pipe Co., 110 N. J. L. 83 (E. & A. 1933).

Affirmed.