author: Jayne, J. A. D.

text:
    IN THE MATTER OF THE ESTATE OF ISAAC B. BEALES, DECEASED.
    Superior Court of New Jersey Appellate Division
    Argued April 16, 1951
    Decided April 24, 1951.

      Before Judges McG-ebiian, Jayne and War. J. Bkennan, Jh.

      Mr. James A. Major argued the cause for appellant (Messrs. Major icfi Carlsen, attorneys).

      Mr. Warren Dixon, Jr., argued the cause for respondent.
   The opinion of the court was delivered by

Jayne, J. A. D.

Mr. Isaac B. Beales died testate on October 14, 1944, leaving him surviving two daughters, Ruth M. Brower and Margaret A. Beales. The will was admitted to probate and pursuant to the nomination expressed in the will,, letters testamentary were issued to the respondent, Bertrond A. Weber, who thereupon qualified as executor and assumed the administration of the decedent’s estate.

The executor submitted his final account to the Probate Division of the County Court of Bergen County for allowance and settlement. Margaret Beales interposed an exception to its approval. On September 22, 1950, a judgment was entered in the County Court dismissing the exception and adjudicating that “the said account be in all things allowed as reported.” The present appeal implicates the propriety of that judgment.

One cannot attain a comprehensive understanding of the basic controversy without some familiarity with the antecedent chapters of its history.

The decedent was the owner of a residential property designated as No. 356 Harrison Avenue, Hasbrouclr Heights, New Jersey, in which he resided with Mr. and Mrs.- Erank Parker during a period of six years before his death. Their associations may be characterized as constituting a family circle.

In June 1944, the testator suggested to the Parkers that they purchase the property for the sum of $5,000. On July 22, 1944, less than three months before his death, the testator accepted a check from Mr. Parker for $100 and subscribed to the following memorandum:

“July 22nd 1944
Received of Frank Parker
One Hundred ......................................... Dollars
a Down Payment on purchase of House & Land at 356 Harrison Avenue Hasbrouek Heights New Jersey Total Cost $5000.00
$100.00 I. B. BEALES”

The excerpt from a contemporaneous communication of the testator to his daughter Ruth, here reproduced, reflects some illumination upon the considerations which obviously motivated the testator.

“Dear Ruth
Bast Saturday when you came over to 356 I had verbally sold the house to Drank Parker for $5,000.00 and after you left we drew up an agreement to that effect. You may think that is cheap but remember the long time (over six years) that I have lived there with the best of bed, of food, and that surely is worth something.
I know you will find it easy to settle the estate with Bert and be kind to Peg she has had a rough life. I wish I could have changed but she would not. I am sorry for Peg and hope the future will be brighter than the past has been. I have always loved Peg dearly and wish I had acted differently on several occasions. I have another and wish that I had you, It’s happy end ”

The memorandum and the check endorsed by the testator were subsequently exhibited to the executor, who seems to have been influenced by the manifestation of the testator’s intention. But let him speak for himself:

“A. I decided that as executor of the estate I would be carrying out the testator’s wishes by doing just what these documents suggested. I entered into the contract with Mr. Parker because I thought it would, as executor, legalize this condition. I felt that if I didn’t sell this property to Mr. Parker that Mr. Parker would have just cause for a suit against me that this was enforeible.
Q. And the price mentioned in these documents was five thousand dollars? A. Was five thousand dollars.”

It is of some significance to relate that the executor is a jeweler and not specially educated in the discriminations of the law.

The testator’s will which was executed by him on February 24, 1939, contained the following direction:

“The property at 356 Harrison Ave. Ilasbrouck Hts. jST. J. to be sold and the proceeds derived, divided equally between my daughters Ruth M. Brower and Margaret A. Beales.”

In the existing circumstances the executor entered into a contract with Mr. Parker for the sale to him of the property at the price of $5,000. The United States Mortgage and Title Guarantee Company of New Jersey declined to guarantee the title unless the two daughters of the testator joined in the deed of conveyance. Margaret refused to do so.

In that situation the executor filed a bill of complaint in the former Court of Chancery in which, inter alia, he alleged the contract into which he had entered for the sale of the property for the price of $5,000 and the pertinent provision of the will, and prayed that the court “declare that the complainant, Bertrond A. Weber, has an implied power of sale and can sell the lands and premises described herein * * * ” A decree was advised that “under the provisions of the Last Will and Testament of said decedent, and under the provisions of the said contracts hereinabove recited (contracts of decedent and executor) that the said Bertrond A. Weber, .Executor of the Last Will and Testament of said decedent, be and he hereby is directed to execute and deliver to said Erank Parker his said deed” for the No. 356 Harrison Avenue property upon payment of the sale price of $5,000. (Parenthetical insertion and emphasis ours.) Margaret A. Beales was an answering defendant in that cause and prosecuted an appeal from the decree, in the Court of Errors and Appeals. 140 N. J. Eq. 423 (E. & A. 1947).

The essential signification of the opinion rendered by the appellate court is revealed by the following selected quotations :

“The Vice-Chancellor based his opinion upon his finding that there was a memorandum made by the estator from which he spelled a valid contract to sell to the defendant-respondent Frank Parker and that there arose from such special circumstances the power to sell by implication. While we concur in the result, we prefer to rest our opinion upon a different basis, namely that in the construction of the will of the decedent, to give effect to the apparent intention and purpose of the testator, there arises an implied power of sale in the executor to sell and convey the premises hereinafter referred to. In the bill of complaint no mention was made of the action of the decedent with respect to the. premises and the prayer for relief was based upon the allegation of an implied power of sale in the executor by means of construction of the will.
# * # # >:« jh * *
We hold that there is an implied power of sale by the executor.”

The entry of a revised final decree thereupon eventuated on October 10, 191?, in the Oourt of Chancery which after a recital of the antecedent proceedings on appeal ordered, adjudged, and decreed “that said Executor be and he hereby is directed to execute and deliver to Frank Parker his said deed í= * * upon payment of the sale price of Five Thousand ($5,000) Dollars, upon which One Hundred ($100) Dollars lms been paid on account thereof, all in accordance with the provisions of a certain contract of sale entered into between the said Executor and said Frank Parker.” The file in the canse in Chancery from which much of the foregoing information is derived was admitted in evidence in the accounting proceedings here under review.

The sale was accordingly consummated and the executor in accounting for the proceeds encountered the exception interposed by the present appellant accusing him of the failure to “exercise reasonable care and skill” in conveying the property for $5,000 instead of for a higher price.

In view of the peculiar charaeferisties of the evenis to which reference has been made, a consideration of the doctrine of estoppel by record naturally intrudes. The bill of complaint in Chancery was not one of the conventional type which seeks merely a construction of the will with respect to the power of the fiduciary, but one which also alleged the contract into which the executor had entered and its terms, and presented to the court evidence of the decedent’s ante mortem intentions, the contract of the executor, and the provision in the will, and in this particular requested the determination of the court concerning the power of the executor to perform the specified contract, which was in all respects conformable to the contemplations of the testator. The question noticeably emerges—could not the present appellant, who was a party to that cause, have by way of defense averred that the contract specifically mentioned in the bill of complaint should not be consummated by the executor by reason of the inadequacy of the selling price ?

It is the well established rule that where the issue is identical in both, actions, the judgment in the prior action is normally final between the parties as to all defenses which were or could have been set up in the earlier suit. It is not essential that the action in which the judgment is rendered and that in which it is interposed as an estoppel shall be of precisely the same kind and in quest of the same form of relief. Inherent in the doctrine are those considerations of justice designed for the protection and security of rights and for the preservation of the repose of society. It is contrary to justice to permit a person to be twice vexed for the same cause. City of Paterson v. Baker, 51 N. J. Eq. 49 (Ch. 1893); In re Walsh’s Estate, 80 N. J. Eq. 565, 570 (E. & A. 1909); Phillips v. Phillips, 119 N. J. Eq. 497 (E. & A. 1936).

In the present case decisive reliance need not be placed on the doctrine of estoppel.

The prescribed measure of duty requires a fiduciary to exercise (expressed in the composite verbiage of the cases) that degree of care and caution, skill, sagacity, and judgment, industry and diligence, circumspection and foresight that an ordinarily discreet and prudent person would employ in like matters of his own and in the same or similar circumstances. In re Ebert, 136 N. J. Eq. 123, 126 (Prerog. 1945), and citations.

The realities of the situation of the executor should not be ignored. Here the Cdurt of Chancery by its initial decree directed him “to execute and deliver” the deed for the stated purchase price. The Court of Errors and Appeals said “we concur in the result. * * The revised final decree likewise “directed” him to complete the sale. Does the law then render him harborless ? Must he avoid Scylla by obeying the decree and thereby collide with Charybdis sustaining the injury of a surcharge, or should he sail clear of the latter and collide with the former and be punished for his contumacious seamanship? Obviously the channel between them was too narrow to enable him to escape both.

Our courts in reviewing the conduct of fiduciaries have frequently reiterated the observation that “no man is infallible; the wisest make mistakes; but the law holds no man responsible for the consequences of his mistakes which are the-result of the imperfection of human judgment, and do not proceed from fraud, gross carelessness or indifference to duty.” Heisler v. Sharp, 44 N. J. Eq. 167 (Prerog. 1888), affirmed 45 N. J. Eq. 367 (E. & A. 1889); Smith v. Jones, 89 N. J. Eq. 502 (Prerog. 1918) ; In re Leonard, 107 N. J. Eq. 235 (E. & A. 1930); In re Corn Exchange National Bank, 109 N. J. Eq. 169 (E. & A. 1931); Willson v. Tripp, 124 N. J. Eq. 45 (Ch. 1938), in all of which the language of Vice-Ordinary Van Fleet in the Heisler case reverberates.

It is not necessarily to be inferred that the respondent-executor in the present case made a mistake. It is evident that he conceived it to be his duty to effectuate the inter vivos agreement of his testator. It is not evident that he was actuated by any ulterior motive.

In any aspect of the various features of the case, it was certainly incumbent upon the appellant as the exceptant to the executor’s account to prove by a fair preponderance of the credible evidence that the sale price was so grossly inadequate as to generate the conclusion that the executor acted in the transaction with that degree of carelessness and imprudence which warrants the imposition of a surcharge upon him. The evidence relevant to that issue is examined.

There were but two real estate experts who expressed their opinions of the value of the property. Mr. Smith of Hackensack, who was called by the exceptant, made an exterior inspection of the property in February 1946. lie had no knowledge whatever of the interior condition of the house and the state of its internal equipment. He supposed the building to be from 37 to 40 years old. He estimated its minimum value to be in 1946 about $10,000, and in 1945 from 10% to 15% less because of the flexible market differential.

In conspicuous contrast is the testimony of Mr. Allen, who is engaged in the sale of real estate in Iiasbrouck Heights and had visited the interior of the house as many as 20 times; The building was insured through his agency in 1944 in the amount of $3,500. The property was listed with him by the testator in 1937 for sale at the price of $3,700.

His description of the property as he observed it in 1944 .may well be quoted:

“The house was badly in need of repair all over. The shingles on the outside were weathered, without paint. The plaster was down in one of the rooms. The heating system—I would say the heating boiler was what struck me mostly was the fact that it was wired up in very dilapidated condition. The doors were wired on to keep it in place. There were evidences of water in the cellar. There were some sheds that evidently were at one time a chicken house or such, over to one side of the property; that was all down. The garage I remember was falling down. There was no evidence .of much of a driveway in there in the property. There was a garage, there, that’s all.
Q..What about the bathroom? A. Well, the bathroom evidently had been put in there after the house was constructed. The bathroom was so small and an undersized tub would have to be put in there in order to fit in; the standard five-foot tub would never fit in that bathroom.
Q. What was the condition of the plumbing? A. The condition of the plumbing was rather poor. It was naturally in the shape that all fifty-year-old houses were.
Q. How old was this house? A. A minimum of fifty years.”

The foregoing description of the house was corroborated by additional testimony. Mr. Allen stated that the fair market value of the premises during 1944 and 1945 was between $4,500 and $5,000. The testimony of Mr. Allen is obviously the more informational, the more comprehensive, hence the more trustworthy. decedent and we feel he did everything he possibly could to safeguard the interest of the estate.”

The subsidiary overture of the appellant that the payment of the counsel fees heretofore allowed and directed to be paid out of the assets of the estate should now be visited upon the executor personally is without merit. The appellant has occasioned all of the litigation. Counsel for the testator’s other daughter, Buth M. Brower, in the accounting proceeding, stated that he desired on- her behalf “to place upon the record our satisfaction with the work done by this executor. He was a good and trusted friend of the

(6] Our consideration of the present appeal with all of Its ramifications leads us to the conclusion that the judgment of the .Bergen County Court should he affirmed.


source: Caselaw Access Project

author: Eastwood, J. A. D.

license: Public Domain

text:
    STANLEY T. DRAUS, CLAIMANT-APPELLANT, v. BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, AND CAMPBELL SOUP COMPANY, RESPONDENTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 9, 1951
    Decided April 20, 1951.

      Before Judges Eastwood, Bigelow and Fbeund.

      Mr. Abraham Greenberg argued the cause for the claimant-appellant.

      Mr. Clarence F. McGovern argued the cause for the respondent, Board of Eeview, Division of Employment Security, Department of Labor and Industry.

      Mr. Grover C. Richman argued the cause for the respondent, Campbell Soup Company.
   The opinion of the court was delivered by

Eastwood, J. A. D.

The claimant, Stanley T. Draus, appeals from the decision and final judgment of the Board of Review, Division of Employment Security, Department of Labor and. Industry, State of Hew Jersey (hereinafter referred to as the “Board”), sustaining the deduction of one day’s pay from his benefits for the first week of July, 1949. Approximately 1,000 employees are affected by the Board’s decision and this appeal has been taken as a test case.

On July 1, 1949, the respondent, Campbell Soup Company, employer of the claimant-appellant, suspended production temporarily. It resumed operations approximately two weeks thereafter, during which period of time Draus was unemployed. On July 22, 1949, Draus received a check representing the four days of his employment in the last week of June and an extra day’s pay. The company contends that the extra day’s pay was intended to cover July 4, whereas Draus, although he did no work on July 1, insists it represented pay for that day. In processing Draus’ claim for unemployment benefits, Edward J. Hull, Chief of Unemployment Benefits, concluded that the extra day’s pay was received for July 4 and it was deducted from that week’s benefits. On claimant’s appeals, respectively, to the Appeal Tribunal and the Board of Review, a similar determination was made.

The statutory provisions pertinent to this issue are:

“(b) Weekly benefits for unemployment. Each eligible individual who is unemployed (as defined in subsection (m) of section 43:21-19 of this chapter) in any week shall be paid with respect to such week (except as to final payment) an amount equal to his weekly benefit rate less any remuneration in excess of three dollars ($3.00) paid or payable to him for such week; provided, that such amount shall be computed to the next highest multiple of one dollar ($1.00), if not already a multiple thereof.” R. S. 43:21-3 (b).
“(m) Unemployment.
(1) An individual shall be deemed ‘unemployed’ for any week during which he is not engaged in full-time work and with respect to which his remuneration is less than his weekly benefit rate.” R. S. 43:21-19 (m).
“(p) ‘Remuneration’ means all compensation for personal services, including commissions and bonuses and the cash value of all compensation in any medium other than cash.” R. S. 43:21-19 (p).

The record submitted for our consideration is not too satisfactory. It consists largely of statements made before the Senior Appeals Examiner of the Appeal Tribunal by representatives of the company and the union, of which latter organization the claimant is a member.-

The management-labor contract between the company and the union provided, inter alia, for payment óf a day’s wages to employees entitled thereto for certain specified holidays, one of which was July 4. In 1949, this holiday fell on Monday. At the time the company suspended operations, there were approximately 5,000 employees, 4,000 of whom were entitled to vacation pay. As July 4 came within the vacation period, the company decided to make an extra day’s payment of wages to all of its employees, regardless of any legal right thereto. The claimant contends that as the result of a verbal agreement made between respective representatives of the company and the union, an extra day’s pay was made for July 1 and not July 4; that "* * * the payment bjr the company to the employees of a sum equivalent to eight hours pay for July 1, 1949, represented the establishment, as a managerial expedient, of an emergency or special holiday so as to forestall protests by workers who were cut off from work on July 1, 1949. It should he definitely borne in mind that these, workers, who were not entitled to vacation pay and who were given the day’s pay for July 1, 1949, did not get one cent more pay for that week than if they had actually worked on July 1, 1949. Had the arrangement initiated by the company not been agreed upon, these employees would have worked on July 1, 1949, in any case, and would have been entitled to receive pay for that date, obviously. Therefore, having received a full week’s pay for the week ending July 3, 1949, and nothing more, how can they, with reason, be said to have received partial pay for the week commencing July 4, 1949 ?” On the contrary, the company contends that the management-labor agreement designates Jufy 4 as a paid holiday; that the written agreement may not be varied by a verbal agreement, citing Ross v. Orr, 3 N. J. 277 (1949); Canter v. Seiden, 128 N. J. L. 156 (Sup. Ct. 1942); and that, in fact, the payment represented a day’s wage for July 4 and not July 1.

Our review of the record convinces us that the sole issue is: did the claimant receive the extra day’s pay for July 1 or July 4? If the latter, the claimant concedes it was property deducted from his benefits. The check in payment of the claimant's last week of employment during the month of June was received by him on July 22, 1949, the first pay day after returning to work. It represented five days’ work, although coneededly the claimant worked only four days. There was no notation on the check to indicate what the extra day’s pay represented. Approximately 30 employees worked -on July 4 and were paid double time in accordance with the management-labor agreement, whereas the 600 employees who worked July 1, were paid straight time. The company contends that had there been any agreement that the holiday payment be shifted from July 4 to July 1, the employees who worked on July 1 would have been entitled to double time under the terms of the agreement, and points io the fact that the union did not protest the wages paid to those who worked on July 1 and 4, respectively.

Assuming, but not conceding, that the management-labor contract could have been altered by the asserted verbal agreement, we are convinced that the record does not support the claimant’s contention that the payment of the extra day’s pay was,' in fact, accomplished by such an agreement. On the contrary, we are satisfied that it actually represented payment for July 4. The deduction thereof from his benefits was, therefore, properly made under the pertinent provision of the statute.

The decision and final judgment of the Board of Beview is affirmed, with costs.


author: Bigelow, J. A. I).

text:
    LOUIS DE FELICE, PLAINTIFF-APPELLANT, v. LORRAINE N. PEACE AND HER HUSBAND, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 19, 1951
    Decided April 25, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Wilbur J. Bernard argued the cause for the appellant.

      Mr. Frank Fink argued the cause for the respondents (Mr. Anton A. Vit, Jr., attorney).
   The opinion of the court was delivered by

Bigelow, J. A. I).

The plaintiff, who was the purchaser named in a contract for the sale of real estate, sued for the return of the deposit and for the cost of the title search and the survey.

The land involved is described in the contract as lot No. 9 on a certain map of property at Portaupeck in the Borough of Oceanport. The lot is 50 feet wide and extends from Monmouth Avenue north 250 feet or so, to the Shrewsbury River. The owner of the land abutting on the east has a portable garage that encroached on lot No. 9 about one inch. At the river end of the lot which plaintiff agreed to buy, is a small dock or platform, ten feet square, on posts driven into the sand. The dock, or platform, extended four feet outside o£ the western boundary line of lot No. 9.

The contract between the parties contains this provision:

“It is understood and agreed that the buildings upon said premises are all within the boundary lines of the property as described in the deed therefore; and that there are no encroachments thereon.”

The dwelling house and the garage on the premises in question are well within the property lines. But the survey disclosed the position of the neighbor’s garage and of the dock as we have described them. Allegedly for this reason plaintiff decided not to take the property and he so advised defendants a few days before the day mentioned in the contract for the passage of title. H.e did so although he was aware that defendants had begun to take the dock apart in order to reassemble it where it would no longer extend west of the property line. Moreover, the defendants completed the restoration of the dock in its new location before the day set for passage of title and also they persuaded the adjoining landowner to move his garage so that it would no longer encroach on lot No. 9.

The plaintiff based his action on the alleged breach of the contract provision above quoted. Judgment was awarded to the defendants.

The question whether there was a breach of the covenant depends upon the condition existing when the day for delivery of the deed arrived. Schultz v. Pollock, 102 N. J. Eq. 157 (Ch. 1928), affirmed 104 N. J. Eq. 205 (E. & A. 1929); Jersey Estates Corp. v. Weintraub, 140 N. J. Eq. 216 (Ch. 1947); Dixon v. Ober, 141 N. J. Eq. 289 (Ch. 1948). And see 55 Am. Jur. 709, Vendor & Purchaser, § 256. The plaintiff had no right to rescind in advance because of conditions that could be and were indeed rectified before the coming of the day fixed for passage of title. No breach by the defendants was proved and therefore the judgment was correct.

If the Shrewsbury is a navigable river, as we understand it is, then title to land below the high water mark is probably in the State, Moore v. Ventnor Gardens, 105 N. J. Eq. 730 (Ch. 1930), affirmed 109 N. J. Eq. 132 (E. & A. 1931), and the dock which in most part is over the water, still extends beyond the bounds of the lot. But the plaintiff did not object on this score, for he did not desire the dock on dry land. We do not pass on the question whether the dock, a mere platform ten feet sqfiare, is a “building” within the intention of the parties expressed in the contract. We would also.'remark that moving a building, or cutting off that part which extends over the line, would not correct the situation, if thereby the property were made less desirable. But nothing of that sort was shown in the instant case.

Judgment affirmed with costs.


text:
    ANDREW W. BOYLE, PLAINTIFF-APPELLANT, v. COUNTY OF HUDSON, IMPLEADED AS BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 19, 1951
    Decided April 26, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

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

      Mr. Lewis B. Easlmeacl argued the cause for the defendant-respondent (Mr. Daniel T. O’Regan, attorney).
   The opinion of the court was delivered by

Eastwood, J. A. D.

During his incarceration as a prisoner at the Hudson County Penitentiary, the appellant, Andrew W. Boyle, suffered certain injuries and instituted an action against the defendant, County of Hudson, to recover damages therefor. On defendant’s motion at the conclusion of the plaintiff’s case, the Law Division of the Hudson County Court dismissed the action, on the ground that the plaintiff had ■failed “to show willful, malicious negligence on the part of the defendant.”

Eor the purpose of our discussion and determination of this appeal, a concise summary of the facts will suffice. On July 10, 1948, plaintiff was assigned by the keeper to sprinkle the road in the compound. A horse named “King” was selected by the keeper to draw the water wagon and he attached the harness while Boyle held the horse. After Boyle had mounted the wagon, taken the reins and while the cart was being turned around, the horse bolted for the barn. Boyle attempted unsuccessfully to get the horse under control and, fearing that he would be crushed between the wagon and the barn, Boyle leaped from the wagon, thereby causing his alleged injuries. Boyle had previously driven the horse in question, testifying that on each occasion it required the assistance of several persons to hitch the horse to the cart; that it was known to be vicious and difficult to handle; that he had made known that fact to the authorities and suggested its exchange; that he had never driven the water cart before; that it was a very old piece of equipment, but he assumed it was in good condition. Three witnesses testified as to the so-called wild nature of the horse, its frequent “runs” while hitched to prison carts, and that the water cart was an old type.

“The rule is well settled that upon motions for dismissal, the equivalent- of motions for nonsuit or directed verdict under the former practice, the court cannot weigh the evidence, but must take as true all evidence which supports the view of the party against whom the motions are made, and must give him the benefit, of all legitimate inferences which are to be drawn therefrom in his favor.” Visaggi v. Frank’s Bar and Grill, Inc., 4 N. J. 93 (Sup. Ct. 1950), at p. 98.

The plaintiff contends that the evidence established a prima facie case of active wrongdoing on the part of the defendant, ■County of Hudson, and the court erred in dismissing his action. The defendant contends that the maintenance of the penitentiary was a governmental function for which it is not liable for negligence in the performance thereof; that it is 'not liable for injuries to a prisoner received from a domestic animal in the absence of a showing of its vicious temperament and knowledge of such temperament by its owner or keeper, and that R. S. 40:9-2 renders it immune from liability “for injury to the person from the use of any public grounds, buildings or structures.”

Plaintiff concedes that the erection, regulation, and maintenance of a prison, workhouse, or other place of confinement of prisoners is thei exercise of a purely governmental power. “The courts of this state have said in conclusive form that the neglect of a municipal corporation to perform or its negligence in the performance of a public duty imposed on-it by law, is a public wrong to be remedied by indictment, and cannot constitute the basis of a civil action by an individual who has suffered particular damage by reason of such neglect.” Waters v. Newark, 56 N. J. L. 361 (Sup. Ct. 1894); affirmed 57 N. J. L. 456 (E. & A. 1894). “But it is also a rule of law of equal importance that the exemption of a municipal corporation from actions by individuals suffering special damage from its neglect to perform or its negligence in performing public duties, whereby public wrong is done for which an indictment will lie, does not extend to actions where the injury is the result of active wrong-doing chargeable to tlio corporation.” Doran v. Asbury Park, 91 N. J. L. 651 (E. & A. 1918) ; Kehoe v. Rutherford, 74 N. J. L. 659 (E. & A. 1907). See Bengivenga v. Plainfield, 128 N. J. L. 418 (E. & A. 1942) ; Truhlar v. Borough of East Paterson, 4 N. J. 490 (1950). The generally accepted rule of a majority of the jurisdictions throughout the United States holds that: “ * * * a municipality is not liable to a person arrested and imprisoned in a municipal jail or workhouse for injuries received by him while so confined, by reason of the improper construction or negligent maintenance of such place, or by reason of the wrongful acts or negligence of the officers, agents, or employees, who are charged with the proper care of such persons while they are so confined, as where, owing to such negligence, prisoners are injured by fellow prisoners.” 63 C. J. 8., Municipal Corporations, § 904, Injury to Prisoners, p. 310. “In erecting, maintaining and managing jails, workhouses, and police stations, according to the judicial decisions, the municipality is exercising a purely governmental fund ion, and is not liable for injury inflicted by its officers and servants in the exercise of such function, unless expressly so provided by statute.” 41 Am. Juris., Prisons and Prisoners, sec. 17. p. 896; cf. McQuillin, Municipal Corporations (3d ed.), vol. 18, sec. 53.94, pp. 396, 397.

The plaintiff asserts that his right of action comes within that class of cases where a municipality may he held liable for damage's suffered as a result of active wrongdoing on the part of the municipality, citing the cases of Truhlar v. Borough of East Paterson, supra; Kress v. City of Newark, 9 N. J. Super. 70 (App. Div. 1950); Milstrey v. City of Hackensack, 8 N. J. Super. 221 (App. Div. 1950); Allas v. Rumson, 115 N J. L. 593 (E. & A. 1935); Hammond v. County of Monmouth, 117 N. J. L. 11 (Sup. Ct. 1936); and Fisher v. Nutley, 120 N. J. L. 290 (E. & A. 1938). The rule of law enunciated in the foregoing cases cited by the appellant is undisputed. However, as we see it, it is not applicable to the issue here under review. At the argument, counsel for both parties stated that they bad been unable to find any analogous New Jersey cases. Similarly, our research has failed to reveal any New' Jersey decision that is parallel to the factual situation here. The following cases, although not factually analogous, are cited as indicative of the position taken by our courts in disposing of actions brought by prisoners against governing bodies, to wit: Tomlin v. Hildreth, 65 N. J. L. 438 (Sup. Ct. 1900); Watkins v. Freeholders of Atlantic, 73 N. J. L. 213 (Sup. Ct. 1906); and Miller v: Belmar, 5 N. J. Misc. 224 (Sup. Ct. 1927). In the Tomlin case (an action against the City of Cape May and others for damages allegedly caused by an assault and battery committed upon the plaintiff when he wras arrested and falsely imprisoned), the defendant’s demurrer to plaintiff’s declaration was sustained. Mr. Justice Port, speaking for the court stated:

“It is very doubtful whether a municipality can be held in any case for an assault or false imprisonment by its agent or servant without clear proof at least of an express authorization or direction of the act by its duly constituted authorities acting in solemn form to bind the corporation in the performance of an act or duty authorized by law. Smith v. City of Rochester, 76 N. Y. 506.”

In the Watkins case (an action to recover damages suffered by plaintiff during his detention as a witness in behalf of the State, resulting from the county’s failure to provide proper food and shelter and unnecessary restriction of his liberty)-, defendant’s demurrer to the declaration was sustained, the court holding that the general rule that an action will not lie in behalf of an individual who has sustained a special damage through the negligence of a municipal corporation to perform a public duty unless the right of action is conferred by statute, similarly applied to a situation where the employees as officers of the municipal corporation are negligent in the performance of such duties; that the doctrine of respondeat superior will not operate to create a liability on the part of the corporation in such a case. In the Miller case (an action by the plaintiff for assault and battery, false imprisonment and malicious prosecution against the Borough of Belmar, its mayor and a police officer), ihe court held that on the authority of Tomlin v. Hildreth., supra, there was no liability upon the part of the borough for the plaintiff’s damages.

“The courts are unanimous in holding that a county is not liable for injuries to a prisoner received by being confined in an unhealthful or unfit prison.” 46 A. L. R., at p. 95, citing Watkins v. Freeholders of Atlantic, supra, and decisions of other states. The generally accepted rule of law throughout the Lnited States applicable to the factual issue here is stated in the following language: “In the absence of statute, a county is not liable for injuries to convicts suffered by the latter due to the misconduct or negligence of those having them in charge.” 46 A. L. R., at p. 96, citing numerous decisions of other jurisdictions. “As a general rule a municipal corporation is not liable for injuries to prisoners or convicts resulting from the negligence of the keeper, guard, policeman, or convict boss in charge of them, for the reason that, in the maintenance of a jail and the working of convicts, the municipality is exercising governmental powers and discharging governmental duties, and cannot be held responsible for the negligence or misconduct of officers which it must, of necessity, employ.” 46 A. L. R., at pp. 100, 101, and cases cited therein.

In our research we have found two cases that appear to be analogous to the issue here, viz.: Lewis v. State, 96 N. Y. 71, 48 Amer. Rep. 607 (Ct. of App. 1884) and Ulrich v. City of St. Louis, 112 Mo. 138, 20 S. W. 466, 34 Am. St. Rep. 372 (1892). In the Lewis case, supra, the prisoner was injured while engaged in carrying molten iron in a defective ladle. The ladle separated from the shank and the melted iron spilled to the floor, where it came into contact with water, causing an explosion and serious injury to the prisoner. The defect in the ladle had previously been called to the attention of the supervisor but no repairs had been made thereto. The court held:

“It is now contended by the learned counsel for the appellant that the act of the overseer in compelling the claimant to use the defective ladle, after having been notified of its unsafe condition, was an act of the State and of gross and inexcusable negligence. It is apparent that even if this is so the claimant must fail unless the doctrine of respondeat superior can be applied to the State, and the State made liable for the negligence or misfeasance of its agents, in like manner as a natural person is responsible for the acts of his servants. We are aware of no principle of law, nor of any adjudged case which makes that application, except when the State, by its legislature, has voluntarily assumed it. The contrary of this is well settled upon grounds of public policy, and the doctrine is so uniformly asserted by writers of approved authority and the courts that fresh discussion would be superfluous. (Story on Agency, sec. 319 (7th ed.)). Indeed the principle upon which the doctrine is founded—that he who expects to derive advantage from an act which is done by another for him must answer for any injury which a third person may sustain from it, excludes such a case as we have before us. The claimant was not a voluntary servant for hire and reward, nor was the State his master in any ordinary sense. He was compelled to labor as a means of reformation, and to endure imprisonment as a punishment and for the protection of the community. While employed he was subject to such regulations as the keeper charged with his custody might, from time to time, prescribe, and if in the course he sustained injury, it must be attributed to the cause which placed him in confinement.”

Subsequent to the determination of the Lewis case, New York State “has waived its sovereign immunity from liability for the torts of its officers and employees. Court of Claims Act, Sec. 12-a, L. 1929, ch. 467; see now sec. 8, L. 1939, ch. 860. No longer is the State immune from liability for torts of its officers, agents and employees.” Bloom v. Jewish Board of Guardians; 286 N. 7. 349 (Ct. of App. 1941); 36 N. E. 2d 617, 618. No such statute waiving immunity has been adopted by the Legislature of this State. “The exemption of municipal corporations from liability to such actions has been put by our courts on the ground of ancient precedent and public policy. Livermore v. Freeholders, 29 N. J. L. 245; Id., 31 N. J. L. 507. That public interest is deemed to be conserved by this exemption from liability seems apparent from the fact that the legislature may at any time impose such liability on municipal corporations, and has failed to do so except in a few instances.” Buckalew v. Freeholders of Middlesex, 91 N. J. L. 517 (E. & A. 1918), at p. 520.

In the Ulrich case, supra (an action by a prisoner for injuries sustained when he was kicked by a mule which the keeper at the workhouse had ordered him to harness), the court, in disposing of his action, stated:

“Held that defendant was not liable for such injuries, though the superintendent knew that the mule was vicious, since defendant, in maintaining the workhouse and committing offenders in satisfaction of fines imposed, was exercising its governmental function.”

In the instant case, we do not think the proofs justify our departure from the generally accepted rule, as herein-above discussed, and adopted by a majority of the jurisdictions throughout the United States.

The judgment of the County Court is affirmed.


author: Pboctoji, J. S. 0.

text:
    ANDREW J. ZAHN, PLAINTIFF-APPELLANT, v. DEPARTMENT OF CIVIL SERVICE OF THE STATE OF NEW JERSEY AND WILLIAM S. CARPENTER, PRESIDENT THEREOF, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 5, 1951
    Decided April 25, 1951.

      Before Judges Ereund, Proctor and Rogers.

      Mr. Walter D. Van Biper, attorney for and of counsel with appellant.

      Mr. John W. Griggs argued the cause for the defendants-respondents (Mr. Theodore D. Parsons, Attorney-General of New Jersey, attorney).
   The opinion of the court was delivered by

Pboctoji, J. S. 0.

Plaintiff appeals from a ruling of the President of the Civil Service Commission of the Department of Civil Service in a “letter decision” dated June 7, 1950.

In the spring of 1950, the then chief engineer of the Irving-ton fire department was retired, effective as of May 15, 1950. There were only three persons, including plaintiff, eligible to take the promotion test for the position of chief engineer. In the forenoon of May 16, 1950, Commissioner Balentine, director of public safety, appointed plaintiff to the position of chief engineer. The commissioner’s term of office expired at noon that day. The plaintiff was sworn in on the forenoon of May 16, 1950, by the town clerk of Irvington and proceeded to discharge the duties of chief engineer. Commissioner Ilausmann, who succeeded Commissioner Balentine as director of public safety, commenced his term of office at noon on May 16, 1950. He forthwith directed plaintiff to relinquish the duties of chief engineer and designated one of the eligible persons, Ziegenfus, to be acting chief engineer. On the same day. Commissioner Hausmann notified the Civil Service Commission of Ziegenfus’ appointment and requested that an examination be held for the position of chief engineer. On June 7, 1950, in reply to a protest from plaintiff’s attorney, the President of the Civil Service Commission informed him by letter that he refused to approve the appointment of the plaintiff and directed that a promotional examination be held. The letter concludes:

“The question whether I have exercised my authority wisely in the Irvington case is one to which T have a complete answer. This appointment by Director Balentine was a ‘midnight appointment.’ That is to say, it was attempted in the closing hours of Ms term of office. Since the day when Thomas Jefferson succeeded John Adams as President of the United States, ‘midnight appointments’ have been denounced by all who believe in sound government. If I have in this instance exercised the small powers vested in me by law to thwart a ‘midnight appointment,’ I have made some contribution to good government.”

The agreed statement of facts discloses no communication in reference to the appointment of plaintiff with the President of the Civil Service Commission prior to plaintiff’s promotion.

Plaintiff contends that in view of the provisions of Rule 24 of the Civil Service Commission, the action of the president was an abuse of discretion in not approving the appointment of plaintiff to the position of chief engineer of the Irvington fire department.

R. S. 11:4-2 provides:

“Appointments to and promotions in the civil service of the state shall be made only according to merit and fitness, to be ascertained, as far as practicable, by examinations, competitive, if practicable.

Under authority granted by R. S. 11:5-1 (a), as am. L. 1944, c. 65, p. 128, § 10, the Civil Service Commission adopted Rule 24, which reads as follows:

“When there are not more than three persons eligible to take the promotion test, or not more than three of those who are eligible file an application to take such test, and the preference rights of veterans will not be affected, the President may, in his discretion, authorize such promotion without competitive test.”

The competitive system, as a means of ascertaining “merit and fitness” of applicants for promotion, embodies the basic statutory policy. See Davaillon v. Elizabeth, 121 N. J. L. 380, 385 (Sup. Ct. 1938). The power of appointment to positions in the classified service is limited either by competitive tests under R. S. 11:4r-2 or by authorization from the president under Rule 24. Rule 24 vests no power in the appointing authority to ignore the requirement of a competitive examination, but rather permits the President of the Civil Service Commission, under certain circumstances, to authorize a promotion without a competitive test. The rule imposes no obligation on the president to exercise his discretion to approve or disapprove an appointment already made, but it does require authorization from the president as a prerequisite to an appointment in the absence of a competitive test. In the present case, the appointment- of plaintiff having been made without a competitive examination and without the authorization above mentioned, we conclude that the retiring director of public safety, Balentine, was without power to appoint the plaintiff.

Moreover, the act of the president, of which plaintiff complains, occurred on June 7, 1950. Before that date the existing appointing authority (Commissioner Ilausmann) had requested a promotional examination, which request had been granted. Under these circumstances we find there was no abuse of discretion.

The action of the President of the Civil Service Commission is affirmed.


text:
    EDWARD C. COCCHIO, PETITIONER-RESPONDENT, v. CONDENSER SERVICE & ENGINEERING CO., INC., RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 19, 1951
    Decided April 26, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Isidor Kalisch argued the cause for the petitioner-respondent (Mr. Morris Kdelstein, attorney).
    . Mr. Walter H. Jones argued the cause for the respondent-appellant.
   The opinion of the court was delivered by

Eastwood, J. A. D.

This is an appeal from an award of compensation to petitioner by the Workmen’s Compensation Division of the Department of Labor and Industry for injuries sustained in an automobile accident which occurred in Pekin, Illinois. Our review of the record brings us to a conclusion contrary to that reached by the deputy director. Accordingly, under the authority of Rules 1:2-20 and 4:2-6, we are making now findings of fact.

In September, 1947, the petitioner went from New Jersey, where he was employed by the respondent, to Pekin, Illinois, as a member of a construction crew to work on a project there. The terms of employment were made known to him before he left for the job in question, viz.: that he would be employed on a basis of 12 hours per day for which he would receive a stipulated hourly rate of compensation and that he would receive $5 per day additional for lodging and meals. Other employees came from Wisconsin to 'work on the same project. The men were permitted to decide which shift they preferred to work and petitioner selected the day shift, 8.00 A. M. to 8.00 P. M.

The town of Pekin is a small municipality with limited accommodations. Cocchio stated that upon arrival, Hans Guildi, a member of the Wisconsin crew and foreman of the night shift, selected the “Taswell House” as a lodging place and accordingly petitioner and a number of the workmen engaged rooms at that hotel. The men were transported by their employer to and from the site of their employment, several miles distant, as well as to a place where they could eat lunch during their working hours. However, they were not permitted to use the vehicle after their return to the hotel in the evening. The claimant testified that they were on a 24-hour call and after completion of their daily shift, if they left the hotel, they were required to leave word there where they could be reached if needed.

On Sunday, September 14, 1947, petitioner returned to the hotel after completing his regular shift, bathed and dressed. At approximately 9:30 P. M., he travelled about Pekin in search of other members of the crew. Not finding anyone, he looked unsuccessfully for a place in Pekin where he might obtain a “hot” dinner. He learned of a place called the “Chicken Barn” located about two miles out of town. While en route in a taxicab, which he had engaged to transport him, a collision occurred between the taxi and another automobile. As a result thereof petitioner was severely injured.

Petitioner filed his petition for compensation under our Workmen’s Compensation Act, claiming the injuries thus sustained to be compensable. Respondent denied petitioner’s contention and asserted that the accident occurred while the employee was “on his own” and not in the pursuit of any function related to his employment. The Division found for the employee, from which finding respondent appeals directly to this court by reason of the fact that the accident causing petitioner’s injuries occurred outside of this State. Stetser v. American Stores Co., 124 N. J. L. 228 (E. & A. 1940).

The employer contends that petitioner failed to sustain the burden of establishing by a preponderance of the proofs, an injury by accident arising out of and in the course of his employment. It is argued that petitioner’s employment ceased for the day at 8 :00 P. M. and that he was entirely on Ins own thereafter; that no control was exercised over the employees either as to lodging or as to their dinner arrangements; and that the petitioner was not undertaking duties of his employment at the time of the accident in question, nor anything incidental thereto, but was in pursuit of personal pleasures.

The employer also disputes the division of responsibility for payment of the counsel fee awarded to petitioner’s counsel.

The employee contends that he was under 24-hour supervision ; that he was directed by the foreman, Guildi, where to lodge; that in response to an inquiry directed to Guildi where lie might get a dinner on Sunday, he was informed that all places in the town of Pekin closed on Sunday and that it would be necessary for him to go out of town to secure a meal. Guildi denied petitioner’s contentions and stated that he exercised no control over the employees after their regular 12 hours of duty. He was corroborated by the foreman of the other crew of workmen who stated that he knew of no restrictions on the men after their shift of work was completed.

Petitioner further argues that the Taswell House ought to be considered the employer’s premises and that inasmuch as that hotel did not provide hot meals for the employees returning home late at night, they were at liberty to make a reasonable search for same. Petitioner asserts that he was confronted with an emergency, i. e., the necessity of getting a hot dinner, rather than eating a cold supper, and that the employer ought reasonably to expect and demand him to take proper care of himself and to fortify himself with a hot dinner. It is contended, therefore, that the petitioner’s trip outside of Pekin in search of a hot dinner was reasonably incidental to his emplpyment and that an injury sustained in the course thereof is compensable.

Mr. Justice Oliphant, in the case of Beh v. Breeze Corporation, 2 N. J. 279, at pp. 282, 283 (1949), discussing what constitutes an accident arising out of and in the course of the employment, states:

“Early in the history of judicial interpretation of the Workmen’s Compensation Act it was held ‘An accident arises “out of” the employment when it is something the risk of which might have been contemplated by. a reasonable person, when entering the employment, as incidental to it * * *. A risk is incidental to the employment when. it belongs or is connected with what a workman has to do in fulfilling his contract of service.’ Bryant v. Fissell, 84 N. J. L. 72 (Sup. Ct. 1913) ; and in Belyus v. Wilkinson, Gaddis & Co., 115 N. J. L. 43 (Sup. Ct. 1935) ; affirmed, 116 N. J. L. 92 (E. & A. 1936), it was said a risk is incidental to the employment when it. grows out of or is connected with what a workman has to do in fulfilling his contract of service. A risk may be incidental to the employment when it is an ordinary one directly connected therewith' or one indirectly connected with the employment because of its special nature. There must be a causal connected between the condition under which the work is required to be done and the resulting injury. That injury must have had its origin in a risk connected with the employment and to have flowed from that source as a- rational consequence.”

It is well settled that a claimant must establish the foregoing elements of his claim by a preponderance of the evidence. Parker v. John A. Roebling’s Sons Co., 135 N. J. L. 440 (Sup. Ct. 1947); affirmed 136 N. J. L. 635 (E. & A. 1948).

Our Supreme Court, in the case of Sanders v. Jarka Corp., 1 N. J. 36, 39 (1948), stated:

“An accident arises ‘out of’ employment when it in some manner is due to a risk reasonably incident to the employment. It was clearly defined in Bryant, Admx., v. Fissell, 84 N. J. L. 72 (Sup. Ct. 1913) :
‘We conclude, therefore, that an accident arises “out of” the employment when it is something the risk of which might have been contemplated by a. reasonable person, when entering'the employment, as incidental to it. * * *
‘A risk is incidental to the employment when it belongs to or is connected with what a workman lias to do in .fulfilling' his contract oí service. * * *
‘And a risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment, or-an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment.’ ”

In the matter sub judice, the petitioner’s contention that he was on 24-hour call is uncorroborated and is denied by the foreman of the night crew working on the job, two workmen from the petitioner’s crew and by the company’s bookkeeper testifying from time records. Petitioner’s assertion that he was required to advise the hotel clerk where he might be reached at any time for recall during his off-duty hours, is uncorroborated and refuted by the employer’s witnesses. Eespondent’s witness, Guildi, testified that there were restaurants in Pekin serving meals on Sunday and denied that he informed petitioner that he must go out of town to get a meal as petitioner alleges. We find an absence of convincing proof that petitioner’s trip arose “out of” or was made for the “concurrent cause” of serving his employer and gratifying his personal pleasures. (See Marlin v. Hasbrouck Heights, &c., Savings Assn., 132 N. J. L. 569 (Sup. Ct. 1945).

Our examination of the record persuades us that the petitioner failed to bear the burden of establishing the essential elements of his claim by a preponderance of the evidence.

In the light of the foregoing determination, it becomes unnecessary to pass upon the respondent’s ground of appeal respecting award of counsel fee.

The judgment of the Workmen’s Compensation Division is reversed, with costs.


author: Bigelow, J. A. D.

text:
    IN THE MATTER OF THE ESTATE OF JOSEPH MANFREDINI, DECEASED.
    Superior Court of New Jersey Appellate Division
    Argued April 9, 1951
    Decided April 30, 1951.

      Before Judges Eastwood, Bigelow and Ereuud.

      Mr. Walter 8. Keown argued the cause for the appellant (Mr. Joseph P. Wilson, attorney).

      Mr. S. P. McCord, Jr., argued the cause for the respondents (Messrs. Starr, Summerill <& Davis, attorneys).
   The opinion of the court was delivered by

Bigelow, J. A. D.

The residuary clause of the will of Joseph Manfredini is the subject of the appeal. He bequeathed to his wife so much of his residuary estate as would, “when added to such property as my wife and I own jointly at the date of my death, equal one-half of my net taxable estate.” The balance of the residuary estate he gave to his brother and two sisters. At the time of testator’s death, he and his wife owned jointly a mortgage for $2,500 and they also owned United States Savings Bonds of the withdrawal value of $25,202, registered:—“Joseph Manfredini or Mrs. Josephine Manfredini.” The County Court held that when testator spoke of property owned jointly by himself and his wife, he meant not only the mortgage but the savings bonds, and the court decreed distribution accordingly. The wife appeals.

The Treasury regulations under which the savings bonds were issued, provide for payment as follows:

“During the lives of both coowners the bond will be paid to either coowner upon his separate request without requiring the signature of the other coowner; and upon payment to either eoowner the other person shall cease to have any interest in the bond.”
“If either coowner dies without the bond having been presented and surrendered for payment or authorized reissue, the surviving coowner will be recognized as the sole and absolute owner of the bond and payment or reissue, as though the bond were registered in his name alone, will be made only to such survivor.”'

The rights of the co-owners of a savings bond are strikingly like those held by two persons in a savings bank account, where the money may be drawn by either while both are alive and, upon the death of one of them, the survivor becomes entitled to the whole. The appellant points out that she and her husband were not technically joint tenants of the bonds because, while both lived, each of them had the right to collect the entire proceeds. The same point has been made concerning the similar savings account. N. J. T. G. & T. Co. v. Archibald, 91 N. J. Eq. 82 (E. & A. 1919). Yet such an account is generally called a joint account by all parties concerned and the depositors are described as joint tenants in the bank records. It is held by our courts that when one of the depositors exercises his power to withdraw the whole fund, he becomes accountable to his.fellow depositor for the latter’s share. Goc v. Goc, 134 N. J. Eq. 61 (E. & A. 1943). We need not inquire whether a like result would be reached if one co-owner of a savings bond collected and retained the whole amount payable on it without the consent of the other owner.

The question is what testator meant by the language found in his will. His problem was the situation that would follow his death. Upon his demise, the entire beneficial title in the savings bonds and in the mortgage would vest in his wife, exactly as if they were all jointly owned by husband and wife.

It seems clear to us that the County Court correctly interpreted testator’s intention expressed in his will. The judgment will be affirmed, but without costs to either party.


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

text:
    FRED W. ROMINE, PLAINTIFF-APPELLANT, v. MARCUS GREENE. DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 19, 1951
    Decided April 30, 1951.

      Before Judges MoGeeíían, Jayne and War. J. Bbennan, Je.

      Mr. Arthur S. Diensi argued the cause for plaintiff-appellant.

      Mr. John H. Grossman argued the cause for defendant-respondent.
   The opinion of the coui't was delivered by

McGeetian, S. J. A. D.

Plaintiff, a real estaie broker, sued the defendant for a brokerage commission. Judgment for defendant was entered in the Essex County District Court after trial without a jury. The case comes before us on a statement of the evidence settled by the trial judge under Rule 1 :3-33.

The trial judge found that on or before November 9, 1949, the defendant orally engaged the plaintiff to sell a parcel of real property “belonging to the defendant’s wife” for the sum of $5,000 net, with the understanding that any amount procured in excess thereof should be retained by the plaintiff in payment of his commission. Later, one Manalio offered the defendant $5,000 for the property, provided the zoning ordinance .of the municipality permitted the use of the property for a gasoline station, and the defendant accepted. On November 19, 1949, the parties notified their respective attorneys of the arrangement, and after it was ascertained that the desired use was permitted, a formal contract was executed on November 35, 1949. On November 33, 1949, the plaintiff procured a purchaser who was ready, able and willing to purchase the property for $5,500, and who gave the plaintiff a $500 deposit; and on the same day, the plaintiff communicated this offer to the defendant. The defendant refused to accept on the ground that he had already sold the property to Manalio. Judgment for the defendant was given on the ground that “An owner who accepts in good faith an offer to soil his property and the terms are agreed upon and there remains only the formal drawing of contracts of sale and purchase, should not be required to cancel said negotiations or suffer the penalty of paying a broker’s commission,' where the broker submits his offer after the commencement of said negotiations of sale by the owner,”

The defendant does not question the enforceability of the oral agreement (see Posner v. Shapiro, 102 N. J. L. 408 (E. & A. 1936)), but argues that the power Avas revoked before performance by the broker.

The power granted to this plaintiff was a revocable, naked power, an offer to pay for services when rendered if performed before revocation. Ettinger v. Loux, 96 N. J. L. 522 (E. & A. 1921). Unless the power has been revoked, a broker acting under such a power ordinarily earns his commission when he produces a purchaser who is ready, able and willing to buy on the terms proposed. Marschalk v. Weber, 11 N. J. Super. 16 (App. Div. 1950), certification denied 6 N. J. 569 (1951); Ettinger v. Loux, above. But the grant of such a power does not preclude the owner from selling to a purchaser of his oavq procuring. Notification to the broker of such a sale, before performance by the broker, revokes the power. Ettinger v. Loux, above. The prior sale itself acts as as a revocation of the power if insufficient time has elapsed between such sale and performance by the broker to give reasonable opportunity under all the circumstances of the case for notification to the broker of the prior sale. Cf. 1 Mecham on Agency (2d ed. 1914), § 625; Kelly v. Brennan, 55 N. J. Eq. 423 (Ch. 1897); Kennedy & Kennedy v. Vance, 202 P. 2d 214 (Sup. Ct. Okl. 1949). However, a broker who performs his undertaking cannot be deprived of his commission merely because the owner is engaged at the time in negotiations for sale to a purchaser of his own procuring, even though such negotiations ripen into an actual sale at a later time. A mere preliminary discussion between the owner and a prospective purchaser, or a tentative agreement looking to a sale, or an oral agreement for a sale, is not sufficient; there must be a binding agreement for the sale. Hartig v. Schrader, 190 Ky. 511, 227 S. W. 815 (Ct. of App. Ky. 1921); Hawks v. Moore, 27 Ga. App. 555, 109 S. E. 807 (Ct. of App. Ga. 1921).

The formal written contract was executed on November 25, 1949, two days after performance by the broker, and it constitutes no bar to the plaintiff’s right to recover his commission. Because a formal written contract of sale was executed, it does not necessarily follow that there could not have been a prior binding agreement. Wharton v. Stoutenburgh, 35 N. J. Eq. 266 (E. & A. 1882); cf. Pomeroy’s Specific Performance of Contracts (3d ed. 1926), § 63; 1 Willision, Contracts (Rev. ed. 1936), §§ 28, 28A; Restatement, Contracts, § 26. Since this plaintiff had no notification of a sale prior to his performance, the defendant, who had an interest in the property, is liable for the commission unless he can prove a binding agreement for sale made so short a time before the broker’s performance that reasonable opportunity to notify the broker was not afforded under the circumstances.

The ¡judgment is reversed and a new trial granted.


author: Per Curtaii.

text:
    SOL KANTOR, PLAINTIFF-RESPONDENT, v. THE PERTH AMBOY NATIONAL BANK, AND OTHERS, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued March 12, 1951
    Decided April 30, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Sol Kanior argued the cause pro $e.

      Mr. John T. Keefe argued the cause for the appellants (Mr. David T. Wilentz and Mr. Edmund A. Ilayes, attorneys).
   Per Curtaii.

The principal question is whether a county board of elections may have a branch office away from the county seat. The Board of Chosen Freeholders of Middlesex County leased from the Perth Amboy National Bank a suite of offices in Perth Amboy for the use of the board of elections. At the suit of a taxpayer, the Law Division awarded summary judgment setting aside the lease and enjoining the occupation of the suite by the election board and payment of the rent accruing after December 31, 1950. The learned judge who heard the case concluded that B. S. 19:6-21 impliedly prohibited the leasing or occupation of offices outside of the county seat. That section directed that the county boards of elections be provided with an office “in the court house of the county for which they are respectively appointed, or in a building as near as possible adjacent thereto.” After the judgment was rendered and the appeal taken, the Legislature, by the enactment of P. L. 1951, c. 10, amended R. S. 19:6-21 by striking out the part above quoted and by directing that there be provided an office “or offices.” The clear intent and effect of the amendment is to authorize the freeholders to provide more than one office for the election board, and to remove any requirement that the, office be at the county seat. The case is governed by the law now in force and not the law prevailing when the judgment was entered. Westinghouse Electric Corp. v. United Electrical, etc., 139 N. J. Eq. 97 (E. & A. 1946); Fusaro v. Reid, 2 N. J. Super. 107 (App. Div. 1949); Binetti v. Swenson, 3 N. J. Super. 227 (App. Div. 1949). In order to bring the decision into harmony with the new enactment, the judgment is reversed, but without costs to any party either here or in the Law Division.


author: Pnn Ooriam.

text:
    AMERICAN FEDERATION OF HOSIERY WORKERS, PLAINTIFF-RESPONDENT, v. POHATCONG HOSIERY MILLS, INC., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 19, 1951
    Decided April 30, 1951.
    Before Judges Jacobs, Eastwood and Bigelow.

      JJr. Abraham L. Friedman argued the cause lor the respondent (Messrs. Rothbard, Harris & Oxfeld, attorneys).

      Mr. Fra C. Moore, Jr., argued the cause for the appellant (Messrs. Whiling \& Moore and Mr. G. Alan Phillips, attorneys).
   Pnn Ooriam.

This suit grows from an arbitration between an employer and the employees’ union relating to vacation pay. The employer seeks to litigate before us two of the questions that were presented to the arbitrator.

The parties had entered into a contract governing terms and conditions of employment. It contained a stipulation that employees whose employment is terminated and who have been “continuously employed for nine months prior to the date of termination” shall receive vacation allowances. There had been a strike at the plant from October 15 to December 15, 1919. The employer contended that because of the strike, no employee whose employment was terminated within nine months of December 15, was entitled to vacation pay. But the arbitrator held that within the meaning of the contract, the strike did not break the continuity of employment, or operate to deprive the men of vacation pay.

A number of the employees were not called back to work by the company after the strike. The arbitrator considered it fitting that they receive vacation pay at the contract rate for the period they worked since March 31. The company objects that they were not employees at any time during the term of the contract, which is dated the day of the strike settlement, December 15, 1949. The arbitrator noted that its provisions for vacation pay are identical with those contained in the contract that governed relations between the parties until October 15, 1949, when the strike began. The base period for the computation of vacation pay is the 12 months ending March 31.

The appellant employer contends that the award should have been set aside by the Law Division and not confirmed, because (1) there was no arbitrable issue, and the arbitrator exceeded his jurisdiction; (2) the award is not “mutual” or “final, definite and complete”; (3) the arbitrator was not impartial.

The parties, by their contract, agreed that any matters of dispute or difference between them “relating to wages, rates, hours, conditions of work, and the relations between the parties, arising during the term of this agreement” shall be submitted to the impartial chairman, Mr. William Simians, “for final and binding decision.” The reference to him expressly included the interpretation, construction and application of the terms of the contract. And both parties agreed “to be bound by and abide” by the impartial chairman’s decisions.

The contentions of the appellant are frivolous except, perhaps, the one which questions the jurisdiction of the arbitrator to award vacation pay to strikers who were not called back after the strike. The contract provided that the “Employer will call back its employees departmental^” and “in recalling employees back to work, Employer shall apply the seniority system” set forth in the contract. As it turned out, the company did not resume operations on as large a scale as before the strike and so a number of the employees who had low seniority were not called back to work. But for a year these employees had a right under the contract to first call, if the company increased its operations so as to need more men. No one could foretell definitely on the date of the contract that they would not be called back. They had then exactly the same status as all the other strikers and were employees in the same sense and were so designated in that part of the contract from which we have quoted.

The dispute or difference between the employer and the union concerning these men, and the problem of interpretation of the contract, were within the scope of the arbitration clause.

The judgment is affirmed with costs.


author: Ekeund, J. S. C.

text:
    BORDEN’S FARM PRODUCTS OF NEW JERSEY, INC., NEWARK MILK AND CREAM CO., LOTZ BROS. DAIRY, INC., AND IDEAL FARMS, INC., PLAINTIFFS, v. LOCAL UNION NO. 680, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, &c., ET ALS., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided April 13. 1951.

      Mr. Edward J. Gilhooly for the plaintiffs (Messrs. Gilhooly, Yauch & Fagan, attorneys).

      Mr. Thomas L. Parsonnet for the defendants (Messrs. Par-sonnet, WeitzmanS Oransky, attorneys).
   Ekeund, J. S. C.

The defendants have moved to dissolve the restraints contained in an order to show cause obtained ex parle and without notice. The restraints are based upon a finding that “unlawful acts have been threatened to bo committed” ; not upon the commission of any unlawful act.

It is alleged that at a conference held on January 18, 1951, Lawrence AloGinley, president of the defendant local union, threatened that a picket line would be placed at the plaintiffs’ premises. AleGinley specifically denies that he “made any throat or statement or intimation of any sort that there would be a picket line either at the creamery or at the city plants,” and avers that preceding the conference he and his associates “specifically agreed that we would make no threat whatever of any kind of action, whether strike or picketing, and I know that eacli and every one of the union representatives observed this understanding and made no threat whatever that a picket line would be placed anywhere.” Both the plaintiffs’ allegations of threat to picket and defendants’ denial thereof are corroborated by affidavits of persons attending the conference at which allegedly the threat was made.

The four plaintiffs sell and distribute milk and other dairy products at wholesale and retail. They employ inside workers who process and bottle or package the products, and outside workers who transport and deliver them. Plaintiffs and defendant, Local "Union No. 680, have contracts covering these workers, and there is no labor dispute between them over any of the terms or conditions of employment. The contracts prohibit strikes or walkouts and provide for arbitration of “any and all disputes and controversies arising under or in connection with the terms or provisions hereof, or in respect to anything not herein expressly provided, but germane to the sub-’ ject matter of this agreement, which the representatives of the union and the employer have been unable to adjust” before arbitrators selected as the contract stipulates. This provision was recently construed in Newark Milk & Cream Co. v. Local 680, 12 N. J. Super. 36 (App. Div. 1951).

The complaint; alleges that the union and its officers are engaged in efforts to organize the employees of four creameries which supply the plaintiffs with milk; that these creameries are separate and distinct entities from the plaintiffs; that the local union has not been certified by the National Labor Relations Board as the bargaining agent for these employees of the creameries, and, therefore, they decline to recognize it as such agent until an election is held at each plant, or the matter submitted to mediation before the Federal or State Mediation Boards, which the union declines to do. On the other hand, the union claims in affidavits filed in its behalf, that it represents approximately 3,500 employees in the milk and ice cream industry in Northern New Jersey, among them are employees of the creameries whom it has recently commenced to organize; that it is endeavoring to negotiate uniform contracts with all employers in the industry. They allege that the plaintiff, Borden’s Farm Products of New Jersey, Inc., owns the creamery, Sussex Milk & Cream Co., Inc.; that the plaintiff, Newark Milk and Cream Co., owns and operates the creamery, Deposit Farms, Inc.; that its president is the general manager of Newark Milk and Cream Co.; that Benchester Creamery Co., Inc., is part of the plaintiff, Lotz Bros. Dairy, Inc., and that Raymond C. Lotz is the president of Benchester and the owner of Lotz Bros. Dairy, Inc.; that the plaintiff, Ideal Farms, Inc., and Ideal Farm Products, Inc., the creamery, are in effect one and the same entity, and that Jacob Tanis is president of both corporations. The defendants aver that employees of the creameries have made application to become members of Local Union No. 680 and have authorized it to engage in collective bargaining negotiations on their behalf. The affidavits of both parties establish that conferences have been held and negotiations carried on between them, but that a satisfactory agreement has not been reached. It is clear, however, that no unlawful acts have been committed by the defendants.

The restraints contained in the order are sweeping in scope and read as follows:

“(a) Brom in an manner whatsoever picketing, patrolling, collecting or gathering, or attempting to do the same at, on, or in the vicinity of or near any of the places or premises at which Plaintiff, Borden’s Paz-m Products of New Jez-sey, Inc., operates or does business in New Jersey, namely, 249 Orange Street, Newark, New Jersey; 806 Third Avenue, Asbury Park, New Jersey; 163 State Street, Hackensack, New Jersey; 641. Montgomery Street, Jersey City, New Jersey; 55 Nesbitt Street, Newark, New Jersey; 225 Madison Avenue, Plainfield, New Jersey; or where Newark Milk and Cream Co., trading as Alderney Dairy Co., operates or does business in New Jersey, or where Lolz Bros. Dairy, Inc. operates or does business, namely 280 Piaget Avenue, Clifton, New Jersey, or where Ideal Farms Inc. operates or does business, namely, 960 Belmont Avenue, North Haledon, New Jersey, and
(b) From interfering, either directly or indirectly, with the performance of the labor contracts between said Local Union No. 680 and the respective Plaintiffs; and
(c) From interfering, either directly or indirectly, with the employment relationship between the respective Plaintiffs and their employees; and
(d) From, directly or indirectly preventing, hindering, or obstructing or attempting to prevent, hinder, or obstruct any person, firm or corporation from doing business with the respective Plaintiffs, or directly or indirectly preventing the delivery, shipment, or receipt of any merchandise or materials from or to the respective places of business of the Plaintiffs hereinbefore set forth; and
(e) From ordering, commanding, directing, assisting, aiding or abetting in any manner whatsoever, any person, or persons, committing or attempting to commit any of the aforesaid acts; and
(f) From directly or indirectly preventing, hindering or obstructing, or attempting to prevent, hinder or obstruct any member of Local Union No. 680, or any other person, firm or corporation, from making deliveries to the respective plants of the plaintiffs at the locations hereinbefore set forth, and which deliveries may be received from Sussex Milk & Cream Company, Inc., Deposit Farms, Inc., Benchester Creamery Co., Inc. and Ideal Farms Dairy Products, Inc., or any of them; and
(g) From encouraging or inducing, or attempting to encourage or induce the employees of the Plaintiffs, or any of them, to leave or cease their emploj'ment or to engage in any strike or other concerted refusal to work; and
(h) If Lawrence McGinley, John II. Webster, William Williamson, or Richard Keber, or any of the last named, have, prior to the service of the within order, ordered or directed to be done any of the foregoing matters contained in sub-paragraphs (a) to (g) then, which ever one or ones of the last named persons who has done so, countermand forthwith any such orders or directions. * * *”

Many points are argued on this motion to vacate the restraints. H owever, it will suffice to liold that their imposition was contrary to general equity procedure and to specific statutory procedure, R. S. 2 :29-I7 ei seq.

An interlocutory injunction should not issue where the material facts on which the plaintiffs rely are met by full and explicit denial under oath. Here, the plaintiffs’ allegations of threat are specifically denied. Citizens’ Coach Co. v. Camden Horse Railway Co., 29 N. J. Eq. 299 (E. & A. 1878).

R. S. 2:29-77.1 et seq., which is procedural in its provisions, was recently considered in Outdoor Sports Corp. v. A. F. of L., Local 23132, 6 N. J. 217 (1951); Isolantite, Inc. v. United Elec., &c., 132 N. J. Eq. 613 (E. & A. 1942). The statute expressly prohibits the issuance of an injunction except upon a finding of the commission of unlawful acts. In this case, there is no such finding.

The plaintiffs contend that the restraints were properly granted although based merely upon a threat to picket, because there is no labor dispute between the parties, and, hence, that the statute does not apply. I am not in accord with this view. R. S. 2:29-77.8 defines a “labor dispute” as follows: “When used in this act, and for the purpose of this act: * * * (e) the term ‘labor dispute’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange' terms or conditions of employment, or concerning employment relations, or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the proximate relation [ship] of employer and employee.” Within the context of this definition, there is here a labor dispute. The union claims the membership of employees of the creameries and has endeavored to represent them in negotiating a contract with respect to the terms and conditions of their employment. Although the facts in this case are distinguishable from those in the Outdoor Sports case, supra, the law is pertinent. Justice Oliphant said: ¡>

“We can agree that a primary relationship of employer and employee is not required to make the benefits of the act available to the disputants and that under certain facts and conditions, it is available to disputants who are employees of independent contractors or customers or persons associated with or connected to the primary disputants because of a unity of interests in the terms and conditions of employment. We likewise agree it is not necessary that all the disputants must stand in the jiroximate relationship of employer and employee one to the other, provided they are engaged in the ‘industry, trade, craft, or occupation in which such dispute occurs.’ R. S. 2 :29-77.8 (b).”

If the creameries are separate and distinct entities from the plaintiffs, as they claim, the labor dispute is between the defendants and the creameries, which certainly are in the same industry as the plaintiffs, Newark Milk & Cream Co. v. Milk Drivers, &c., 19 N. J. Misc. 468 (Ch. 1941). If they are not separate entities, as the defendants claim, the labor dispute is between the parties hereto, Consolidated Really Co. v. Dyers, &c., Federation, 137 N. J. Eq. 413 (Ch. 1946). In the latter case, Viee-Chancellor Fielder found

“The facts are that complainant and Palisade Company are private corporations owned and controlled by the same three stockholders and they have the same officers. * * * It appears that three individuals make use of corporate forms merely as instrumentalities for their convenience in conducting two business enterprises and that those individuals have a common interest in all that affects either corporation. For the purpose of this proceeding the court will look through forms to the realities and will disregard corporate identities in order that the claimed rights of the defendants may receive equitable consideration, and I conclude that complainant is involved in the same labor dispute as Palisade Company, as a labor dispute is defined by R. S. 2:29-77.8.”

The defendants contend that the restraints ought not to have been imposed because the plaintiffs have failed to comply with R. S. 2 :29-77.4, which provides that “No restraining order or injunctive relief shall be granted to any complainant * * * who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.” Without passing upon the merit of defendant’s contention, the question of arbitration may he considered. Singularly, both parties assert that they are willing to submit the matter to mediation or arbitration. Settlement of controversies by arbitration is favored by the courts. Machine Printers Beneficial Association v. Merrill Textile Print Works, 12 N. J. Super. 26 (App. Div. 1951); Newark Milk & Cream Co. v. Local 680, 12 N. J. Super. 36 (App. Div. 1951). If the creameries are in fact merely corporate instrumentalities of the plaintiffs, as the defendants contend, then it may be that the dispute is arbitrable under the broad arbitration provision of the contracts between the parties. The plaintiffs, however, deny the unity of the milk companies and the creameries, but aver that, nevertheless, they are willing to arbitrate. Accordingly, since both parties desire arbitration or mediation of the dispute, they should have it, even though not required by contract.

The ad interim restraints should be vacated and the order discharged.


author: Vasbejiwajrt, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ANTHONY ADAMO, DEFENDANT.
    Bergen County Court Law Division
    Decided April 20, 1951.

      Mr. Francis V. D. Lloyd, Deputy Attorney-General and Acting Prosecutor of Bergen County (Mr. Max Fisenstein, Deputy Attorney-General, appearing), for the State of New Jersey.

      Messrs. Kapp Brothers (by Mr. Leon W. Kapp, appearing), for the defendant.
   Vasbejiwajrt, J. C. C.

Defendant, under date of March 13, 1951, noticed a motion before this court to dismiss and quash indictment No. -17,011 because it contravenes the Constitution of the State of New Jersey (1947), Article X, paragraph 3, as well as the Eules governing the New Jersey Courts, Rule 2 :4-ll.

Counsel for the defendant alleges that the indictment should be quashed because it concludes with the words “ * * * against the peace, of lhe State, the Government and dignity of the same” whereas the Constitution in Article X, paragraph 3, is as follows: “ * * * and all indictments shall conclude: ‘against the peace of this State, the Government and dignity of the same.’ ”

Likewise, Buie 2 :4-ll in the fifth line recites “ * * * But every indictment shall conclude: ‘against the peace of this State, the government and dignity of the same.’ ”

Argument was heard and cases cited. Prior to decision upon the motion the Deputy Attorney-General, for the State, moved to amend Indictment No.- 17,011 wherein the State of New Jersey is the plaintiff and Anthony Adamo is the defendant, so that the same shall conclude with the words “contrary to the form of the statute in such case made and provided, and against the peace of this State, the Government and dignity of the same.” Decision was reserved upon both motions.

It is the decision of this court that the motion of the Deputy Attorney-General and Acting Prosecutor of the Pleas of Bergen County to amend the indictment in the manner indicated shall be granted, and an order may be presented to that effect, viz.: that the concluding words of Indictment No. 17,011 shall be: “contrary to the form of the statute in such case made and provided, against the peace of this State, the Government and dignity of the same,” instead of its present reading: “contrary to the-form of the statute in such case made and provided, against the peace of the State, the Government and dignity of the' same.”

This decision is made in accordance with the authority provided in the Rules governing the New Jersey Courts, Rule 2:4-13, and by reason of this decision the motion to quash the indictment is denied.


author: Frangís, J. 0. C.

text:
    ANNIE H. WILCOX, PLAINTIFF, v. VIVIAN M. KUBLER, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided April 23, 1951.

      Mr. Joseph B. Megill, attorney for the plaintiff.

      Mr. John A. Reid, attorney for the defendant.
   Frangís, J. 0. C.

(temporarily assigned). Plaintiff here became vested with a life estate in the leasehold in question under the will of Annie V. Heiss, who died on May 8, 1916. Subsequently she acquired by assignment all the remainder-man’s rights in the leasehold, which were likewise created by the will.'

In August, 1950, plaintiff entered into a written agreement to sell and convey the leasehold estate to the defendant. Defendant has refused to accept' the assignment of the plaintiff’s leasehold interest, maintaining that a marketable assignment thereof cannot be made. Plaintiff therefore seeks specific performance in this action.

The basis for defendant’s assertion that a marketable assignment cannot be executed is the following provision of the Heiss will, under which plaintiff received her original life interest:

“I give and bequeath to my beloved nephew Annie H. and Luther Wilcox, her husband, my residence No. 119 Main Ave., Ocean Grove, New Jersey. To he he.pt as a memorial during their lifetime and after the death of the said Annie H. and Luther Wilcox, her husband, I bequeath the said residue to Oscar H. Heiss of the City of Philadelphia or to his heirs and assigns.”

The dwelling house upon the demised premises is in a bad state of disrepair, and is without adequate heating and plumbing facilities. The plaintiff is 85 years of age, a widow (her husband having died in 1946), and without sufficient funds with which to make the necessary repairs and to pay carrying charges, such as fire insurance and taxes.

The stipulation of facts shows that the parties also made a collateral written agreement under which the plaintiff “retains the right to use and occupy the rear room on the first floor and the rear room on the second floor of the dwelling house during the term of her natural life.”

These agreed facts with respect to the plaintiff’s age, financial condition, condition of the house, and the reservation of the use of two rooms therein, move the compassion of a court of equity. However, they cannot form a base on which to construct a judgment favorable to her. Such a judgment must be founded upon a determination that when she added the remainder interest to her life estate she acquired the unqualified right to sell the leasehold in her lifetime, regardless of the quoted language of the will.

Although the will says, “To be kept as a memorial during their lifetime * * it contains no forfeiture clause and no language in anywise indicating that if the dwelling house was not “kept as a memorial” the leasehold should revert to the estate or pass immediately to the remainderman, or that the plaintiff should be divested of her life estate. No words were used which implied that the testatrix had in mind that on failure to keep the house as a memorial the life estate should terminate, such as words bequeathing a right to use and occupy “so long as” the memorial was kept.

Evidently the testatrix assumed, and perhaps hoped, that the plaintiff and her now deceased husband would continue to live on the premises for the remainder of their lives. However, an intention to require the continued occupancy during their lives cannot be gathered from the writing. Even if plaintiff had not acquired the remainder interest, it would not be reasonable to declare that she could not rent the house to a tenant. Keeping as a memorial would not require personal occupancy. A sensible interpretation would appear to be that Miss Heiss was expressing a sentimental wish that the property would represent a memorial to them but that she did not intend to command its maintenance as such under pain of forfeiture or reversion. What she intended to give to plaintiff was a life estate in memory of her.

The relations between the parties as disclosed by the stipulation support this thought. The testatrix never married. She was blind for many years prior to her death and lived with and was cared for by the plaintiff and her husband.

Forfeitures under wills or deeds are not favored, and if they can be avoided on a fair and reasonable interpretation of the instrument involved, a court of equity will undertake to do so. Girard Trust Co. v. Schmitz, 129 N. J. Eq. 444 (Ch. 1949).

There appear to be no cases in New Jersey which deal with the precise problem raised here. However, the view may be gathered from the few similar cases that in the absence of language declaring a forfeiture or directing a reverter or a gift -over, failure to comply with such a wish as the language-of this will imports will not produce a forfeiture. From this if must follow that a right to sell free of the asserted limitation is in existence.

In Casper v. Walker, 33 N. J. Eq. 35 (Ch. 1880), the testator gave to his wife an annuity of $400, charged on his homestead farm, which he gave to his only child, Amy. Then he added:

“It is further my will that the said Amy reside on the aforesaid farm after my decease, and take proper care of the same. In case they (I mean Amy and her husband) should not see proper to move on the same, then I order my executor to sell the same farm at publicvendue to the highest bidder; but there is nothing herein contained that affects the dower of $400 devised to my wife aforesaid.”

The Chancellor said:

“The devise of the homestead farm to Amy is in fee, subject to the charge of the annuity to the widow. It is not defeasible by her non-residence of the property. * * *
He not only does not provide that, in case of non-compliance with his direction, the farm shall go over to some one else, but he makes-no provision whatever in that connection, except that the farm be converted by his executor into money, by sale. He makes no disposition of the proceeds of the property after conversion. * * *
There is no evidence of any intention on his part to compel his daughter to reside on the farm, as a condition of her title to it under the devise. The language of the first clause is merely expressive of his desire. It has no mandatory character, but is merely precatory.”

In Howell v. Patry, 50 N. J. Eq. 265 (Ch. 1892),a will directed that the part of testator’s real estate then occupied by “the children of my deceased son William and his widow * * * shall remain in the said family of my son William and his said widow as long as she remains the widow of my said son for their use during their natural life, provided they live and remain on the same."

Certain of the children ceased living on the premises and if was claimed that they forfeited their life estate. Vice-Chancellor Pitney held otherwise. He said:

“® * * I do not think that it was the intention of the testator that the children of his son William should forfeit their life estate by failing to continue to live and remain upon the premises. If such had been his intention, I think he would have made a provision for the further devolution of the estate. * * * If these children all agreed among themselves to let out the premises during their lifetime to a tenant, or to sell them for the life of the longest liver, they might do so and the heirs in remainder had no cause to complain.”

A clear statement of the principle which must be applied to this controversy is set forth in Whitmore v. Church of the Holy Cross, 121 Me. 391, 117 A. 469 (Sup. Jud. Ct. Me. 1922). There Justice Hanson said:

“A legacy absolute in terms, but suggesting a particular use, does not create either a condition or a trust. 11 C. J. 351 and note 27. See L. R. A. 1918 B. And a grant to a religious society, ‘the interest thereof to be annually paid to their minister forever,’ is a gift to the society. Id.; Smith v. Nelson, 18 Vt. 511. The mere imposition upon a grantee or devisee of an obligation in respect to the use of the real estate granted or devised, without the use of technical terms to create a condition, or else of language clearly expressive of an intent that the land should revert if the obligation is not performed, will not create a condition.”

All of these considerations lead to the conclusion that plaintiff’s title to the leasehold is an unconditional and unqualified one and that her execution of an assignment of the leasehold will pass marketable title to the defendant. Under the circumstances a judgment for specific performance will be entered.