text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM GOFF, PETITIONER, v. COUNTY OF UNION, SHERIFF OF UNION COUNTY AND BOARD OF CHOSEN FREEHOLDERS OF UNION COUNTY, RESPONDENTS.
    Decided January 8, 1948.
    Dor the petitioner, Joseph Butt.

    Dor the respondent, Edward E. Kuebler.

   A claim petition was filed by the petitioner in the above entitled matter pursuant to R. S. 34:15-1, et seq.; N. J. S. A. 34:15-1, et seq., wherein he alleged that on September 11th, 1946, he was employed by the County of Union, sheriff of Union County and Board of Chosen Dreeholders of Union County, the respondents, as a painter.

The petitioner further alleges that on the said day while painting, he fell and struck his back and spine on the end of a sink sustaining permanent injury and disability to his back, spine and nervous system.

Subsequently, the respondents filed their answer to the cle-fm petition. They denied the accident, employment, causal relationship and disability, and averred that when the alleged accident occurred the petitioner was confined to the Union County jail; that he had been received at the jail to serve a six months sentence on a disorderly conduct charge; that the petitioner did not sustain any injuries as the result of an accident which arose out of and in the course of any employment with them within the intendment of the statute and that the Workmen’s Compensation Bureau is without jurisdiction In this matter.

On November 13th, 1947, the case came on for a hearing before me a Deputy Commissioner of Labor at Elizabeth, New Jersey. The petitioner was represented by Joseph Butt, Esq., and the respondent by Edward E. Kuebler, Esq.

It was stipulated by and between the attorneys for the respective parties that the testimony of the witnesses in the cause should be taken before Honorable Harry Berger, a referee of the Workmen’s Compensation Bureau, with the same force' and effect as though it were taken before the Deputy Commissioner, and a transcript of that testimony was to be submitted to me for determination and finding of the facts.

The petitioner testified that on September 11th, 1946, while an inmate of the Union County jail, an officer in the jail inquired of him if he would do some painting. He consented to perform this work because he would obtain some extra food. The material was supplied by the county and the petitioner was obliged to follow the instructions of a guard who supervised the work.

On the day in question the petitioner was painting a cell block and, as he stepped from a bench to an iron cot, his right foot slipped and he fell, striking his back on a sink in the cell. He did not report the incident to a guard that night, but he did inform the guard about it the next morning as Ms back still pained him. Subsequently he was treated by the jail physician and he received treatment twice a week for eight weeks at the Elizabeth General Hospital.

On cross-examination the petitioner said that a guard, who is in charge of the detail, selects the prisoner he desires from the cell blocks and he tells them what work he wants done. The prisoners are picked for permanent details and they are assigned to that work for the duration of their sentences. If a prisoner refuses to work he is locked up in the cell block.

Dr. Pasquale E. Cardinale appeared as a witness for the petitioner. He testified that he examined him on October 14th, 1947, and as a result of that examination, he made a diagnosis of a contusion of the lower spine. He estimated the disability at 7% of partial permanent total.

Alex Campbell was also called as a witness for the petitioner. He testified that on September 11th, 1946, and for some time prior he was the sheriff of Union County. One of his functions in that capacity was the supervision of the jail and its personnel.

Mr. Campbell said that on September 11th, 1946, the petitioner was incarcerated in the Union jail, and it was his understanding that a person under sentence can be used for cleaning or any other work that may be necessary in the discretion of the sheriff and the warden. This is a general practice and the inmate so used on any maintenance, cleaning or painting detail is not paid.

At the conclusion of Mr. Campbell’s testimony the petitioner rested his case and a motion was made on behalf of the respondents to dismiss the claim petition on the ground that the petitioner failed to sustain the burden of proving that on September 11th, 1946, he was an employee of the respondents named in the claim petition within the intendment of R. S. 34:15-36; N. J. S. A. 34:15-36.

I have carefully considered all of the evidence in this case and I am of the opinion that the petitioner has failed to sustain the burden of proving that on September 11th, 1946, he was an employee of any or all of the respondents named in the claim petition. I am also of the opinion that he has also failed to sustain the burden of proving that he suffered an accident which arose out of and in the course of employment with any or all' of the respondents.

It is inconceivable that a person who is serving a sentence ■duly imposed upon him by law and who' is incarcerated in an institution established by. a state, county, or municipal government, because he is performing some work while a prisoner, be deemed' an employee of the governmental agent in charge of the jail. To hold otherwise would mean that the.pfficials of a penal institution would be employers of their prisoners whenever they delegate to any of the prisoners the performance of any work that may be necessary to maintain their morale and to aid in their rehabilitation. This would be contrary to public policy.

To constitute one an employee so as to permit recovery under the Compensation Act for injuries sustained, it is essential that there be a contract of service. Essbee Amusement Corp. v. Greenhaus, 114 N. J. L. 492; 177 Atl. Rep. 562; Rojeski v. Pennington Dairy Farms, Inc., 118 N. J. L. 335; 192 Atl. Rep. 746. The proofs in the instant case do not bring the petitioner within this principle. As a prisoner, the petitioner was a ward of the County of Union and as such his normal rights of free and independent action were limited. Neither he nor the sheriff in whose custody the petitioner was placed are capable of creating between themselves the status of master and servant for the performance of work in the institution in the absence of express statutory authority. I am not aware of any such authority in law which would authorize a sheriff of a county to engage a prisoner as an employee and thereby bind the Board of Chosen Freeholders and the County of Union.

The petitioner has argued that even though a person does not receive financial consideration it does not necessarily follow that he is not an employee within the meaning of R. S. 34:15-36; N. J. S. A. 34:15-36. I am not in accord with that argument. The performance of service "for another for financial consideration” is a cardinal legal requirement in workmen’s compensation for the creation of the status of employer and .employee; The instant case is not similar to that line of cases where, because no financial arrangements had been made but a valid contract of employment was in ■existence, a reasonable wage can be assumed. In the case sub judice there was neither a valid contract of employment nor was it ever assumed by the parties that the petitioner was to receive any financial consideration for any work that he might perform. The proofs quite to the contrary indicate that the petitioner did not receive any financial consideration and that his motives for doing any work in the jail were with the hope of receiving some extra food and to prevent being locked up in a cell if he should refuse. His expectations of receiving extra food and the avoidance of being locked up in a cell may well be compared to the school teacher who awards to good and co-operative students some trivial mark of commendation such as a book, a stick of candy or a gold star; .and on the contrary, to those who are not good and helpful, the badge of dishonor of being placed in the corner.

It seems clear that the award for work anticipated by the petitioner and his desire to avoid any personal discomfit do not reasonably come within the definition of a financial consideration as intended by the legislature.

I am, therefore, constrained to dismiss the claim petition and in view of this I do not deem it necessary to rule on the exceptions to the admission of some of the testimony that was taken before Referee Berger.

It is, therefore, * * * ordered that the claim petition in this matter be and the same is hereby dismissed.

Harry S. Medinets,

Deputy Commissioner.


source: Caselaw Access Project

author: Francis, A. M.

license: Public Domain

text:
    John Henry King, petitioner, v. Mary Beneta Klemp, defendant.
    [Decided December 22d, 1947.]

      Mr. David Silver, for the petitioner.

      Mr. Frederick 0. Vonhof, for the defendant.
   Francis, A. M.

The petitioner here seeks an annulment of his marriage to the defendant. The ground on which the right to this relief is asserted is that at the time he and the defendant were married, the defendant had a husband then living from whom she was not divorced.

More specifically the petition alleges that a ceremonial marriage took place between the parties on November 22d, 1944, in Mt. Yernon in the State of New York. It further alleges that at this time defendant was already married to one Louis Adolph Klemp; that defendant had instituted an action for divorce against Klemp in the District Court of Leavenworth County, State of Kansas, and on August 22d, 1944, that court granted a decree of divorce which recited, among other things, that “the foregoing Decree of Divorcement does not become absolute and take effect until the expiration of six (6) months from this 22nd day of August, 1944.” The allegation is then made that the marriage entered into just three months later was void.

The answer of the defendant asserts that at the time she contracted the marriage to petitioner under the law of the State of Kansas she was completely and absolutely divorced from her first husband, Klemp, and that in spite of the language of the decree she was free to marry King in the State of New York.

At the hearing there was no dispute about the facts. The petitioner, a resident of New Jersey, was inducted into the Army and in 1944 was stationed in Fort Leavenworth, Kansas. There he met defendant, a resident of Kansas, and began to keep company with her although he knew that she-was married and had two children. Her husband, Klemp, was-in the Naval Service at the time and away from home.

On June 8th, 1944, King was transferred to Fort Hamilton,. New York. From there he carried on a correspondence with defendant and in July, 1944, she came east to visit him. After a short visit, she returned to Kansas and came back to-Hew York again in September, 1944. At this time she had with her the divorce decree referred to in the pleadings. An exemplified copy of the Kansas divorce proceedings, including the decree, was offered and received in evidence. The decree provides:

“It is therefore, now by the Court here considered, ordered,, adjudged and decreed that the marriage contract heretofore-existing between the plaintiff and the defendant be, and the same is hereby set aside, wholly annulled and that the parties-he, and they are, hereby divorced from each other and forever released from the obligations of the marriage contract.”

It further provides:

' “It is further considered, ordered and adjudged by the-court that the above and foregoing Decree of Divorcement does not become absolute and take effect until the expiration of six (6) months from this 22nd day of August, A. D. 1944.”'

According to petitioner, he made some inquiry of the defendant about the propriety of a remarriage before the termination of the six months period. She assured him that she was free to do so and that she had been so advised by her Kansas solicitor. His doubts were removed by these assurances and the marriage took place in Mount ■ Yernon, Hew York, on the date indicated. They then took up their married life in Hew York State.

Thereafter, because of rumors and because of a visit paid to him by the defendant’s first husband, Klemp, in March, 1945, he began to have doubts about the validity of his marriage. Then, following further discussion with his camp commander and his wife, he decided that the marriage was not valid and, in April, 1945, he sent her back to Kansas. This petition .for annulment was filed on May 14th, 1945.

In order to establish the law of Kansas with respeet to the effect of the divorce decree, an affidavit of Benjamin F. Enders, a member of the bar of Leavenworth County, Kansas, was offered in evidence. It was admitted, but at the request of counsel for petitioner, permission was given to argue the-question of its admissibility in his memorandum to be submitted on the whole case.

The problem of proof o£ the laws of our sister states had been dealt with by statute. Section 2:98-28 of the New Jersey Revised Statutes, N. J. S. A. 2:98-28, provides:

“Whenever the common or statute law of any state, territory or other jurisdiction of the United States is pleaded in any action in any court of this State, the court shall take judicial notice thereof * * V*

Further R. S. 2:98-29; N. J. S. A. 2:98-29, says:

“The eourt may inform itself of such laws in such manner as it may deem proper, and the eourt may call upon counsel to aid it in obtaining such information.”

Even if the precise question had not been presented to our courts, these legislative enactments would justify acceptance of the affidavit. However the Supreme Court has expressly sanctioned the practice. In Franzen v. Equitable Life, &c., Society, 130 N. J. Law 457; 32 Atl. Rep. (2d) 599, Mr. Justice Heher, speaking for the court, said.

“Error is assigned upon the admission in evidence, on respondent’s motion, and over appellant’s objection, of an ex parte affidavit made by a member of the bar of the State of Louisiana purporting to reproduce verbatim certain provisions of the revised Civil Code of that state, adopted in 1870, pertaining to the constitution of the contract of marriage, and passages from opinions rendered in two Louisiana cases not ‘reported in the Southern reports’ * *

After reference to the statutes above quoted, Mr. Justice Heher continued:

“Thus the introduction of the affidavit did not violate appellant’s substantial rights. It did not embody the affiant’s opinion of the law of Louisiana respecting the question at issue; it merely presented a transcript of pertinent provisions of the Louisiana Civil Code, and made reference to two interpretative decisions, all of which were available to the court by the application of the statutory principle of judicial notice.”

The affidavit here, as in the Franzen Case, quotes verbatim the sections of General Statutes of Kansas said to be pertinent and quotes also from an opinion of the Supreme Court of Kansas construing these sections. However paragraphs five and six thereof purport to give the opinion of the affiant as to the effect of the statutes and certain facts with respect to the record of the defendant’s divorce action in that state. These paragraphs are no competent and will be disregarded in the determination of the cause.

According to the affidavit and an independent examination of the Kansas reports, section 60-1512 of the General Statutes of Kansas is as follows:

"60-1512. Effect of Decree of Divorce: Appeal, Notice: Remarriage Within Six Months Unlawful; Void and Bigamous. A divorce granted at the instance of one party shall operate as a dissolution of the marriage contract as to both, and shall be a bar to any claim of the party for whose fault it was granted in or to the property of the other, except in cases where actual fraud shall have been committed, by or on behalf of the successful party. Every judgment of divorce-, ment granted by a district court shall be final and conclusive, unless appealed from within the time and in the manner herein provided. * * *; or whether an appeal be commenced as herein provided, or not, it shall be unlawful for either party to such divorce suit to marry any other person within six months from the date of the deoreo of divorcement; * * * and every person marrying contrary to the, provisions of this section shall be deemed guilty of bigamy, and such marriage shall be absolutely void."

Section 60-1514 of the same statutes reads:

"60-1514. Recital in Decree of Date Effective. Every decree of divorce shall recite the day and date when the judgment was rendered in the cause, and that the decree does not become absolute and tahe effect until the expiration of six months from said time.”

It was pursuant to this latter section of the statute, of course, that defendant’s Kansas decree directed that it did “not become absolute and take effect until the expiration of six (6) months from this 22nd day of August, 1944.”

Petitioner contends that by reason of this statutory mandate the defendant was possessed of a conditional divorce, that her marital status continued until February 22d, 1945, that she was not free to marry on November 22d, 1944, and that her marriage to him was therefore bigamous and “absolutely void.” Defendant says (1) that her decree was an absolute divorce on the date of rendition, that the marital relation was destroyed thereby, that the seemingly qualifying language of the decree was simply a limitation on, or prohibition against, remarriage within the State of Kansas for the prescribed period, that the restriction had no extraterritorial effect and that therefore she was not barred from remarriage in Hew York State within that period; (2) that in any event petitioner is barred either by the doctrine of estoppel of or unclean hands from the relief he seeks.

If the decree in dispute had been issued by a New Jersey court there could be no doubt about its significance. A decree nisi here is a conditional divorce and the marital status remains in full legal vigor (Dolan v. Wagner, 95 N. J. Eq. 1; 125 Atl. Rep. 2) until the end of the three months period. The language of the Kansas statute and of the decree drawn in conformity with its requirements is certainly ambiguous and, unless an examination of the decisions of the Kansas courts interpreting the statute indicates otherwise, the impulse would be to declare the decree a conditional divorce. However where the construction of a foreign statute is involved, our courts will accept as controlling the interpretation placed thereon by the courts of that state. 2 Sutherland— Statutory Construction, § 4603.

Turning to the Kansas decisions, it appears that for more than forty years a decree such as was granted to the defendant has been considered as accomplishing a complete dissolution of the relation of husband and wife and of the rights and obligations associated therewith.

The statutory language that the decree “does not become absolute and take effect until the expiration of six (6) months,” is not treated as a qualification on the destruction of the marital status, but simply as a limitation on the right to remarry. In Durland v. Durland, 67 Kan. 734; 74 Pac. Rep. 274, which provides the source material for all subsequent interpretations of the statute, the Supreme Court said:

“The prohibition upon marriage within six months, however, was the only limitation upon the judgment as an utter annihilation of the former marital status. If no appeal were taken, the ties which had bound the individuals together were absolutely and unqualifiedly broken asunder. The parties were each as fully absolved from every marital right and duty and consequence as they were before marriage and were fully restored to the freedom they enjoyed before marriage in every respect, except that they could not marry for six months. Indeed had the legislature withheld that privilege forever still no element of the relation of husband and wife would have continued to exist.” (74 Pac. Rep. 276.)

* $ & $ $ * $

“The decree of divorce in this state is only incumbered with the statutory restriction that during the six months after the rendition of the decree and the pendency of the proceedings to reverse the same, it is unlawful for either party to remarry.” (74 Pac. Rep. 277.)

A short time after the Durland Case, the same court referring thereto said:

“In the case of Durland v. Durland this court had occasion to remark upon the object and purpose of this section, and there held, in substance, that it had but one object, and that was to prevent the divorced parties from remarrying within the prohibited term; that for all other purposes the decree would take present effect.” Phillips v. Phillips, 69 Kan. 324; 76 Pac. Rep. 842.

In 1930 in Conway v. Conway, 130 Kan. 848; 288 Pac. Rep. 566, the following appears:

“When the divorce decree is granted the marital status is dissolved. We have no such thing as divorce a mensa et fhoro, conditional divorce, suspension of marital relations and the like. Divorce ends marital relation and the judgment is final and conclusive.”

This view has been reiterated a number of times in more recent years. In Knollenberg v. Meyer (1940), 151 Kan. 768; 100 Pac. Rep. 746, the court said:

“The statute provides that every decree of divorce shall recite that it does not become absolute and take effect until the expiration of six months from its date. This provision, however, has been interpreted as a mere restriction upon marriage within that time. Upon rendition of a decree of divorce, the parties cease to be husband and wife.”

Again in 1945 the same doctrine was propounded:

“The Kansas and Nebraska courts have interpreted the respective statutes differently as to when the marital status is dissolved. We have held that under our statute the marital status is dissolved as of the date of the decree. The six month period provided for in our law has been construed as merely a prohibition against remarriage of either party during that period.” In re Troemper’s Estate, 160 Kan. 464; 163 Pac. Rep. (2d) 379. '

As a result of this construction it has been declared that rights of inheritance are lost immediately by such a decree. Durland v. Durland, supra; Jacobs v. Gaskill, 69 Kan. 872; 77 Pac. Rep. 550; Woolverton v. Johnson, 69 Kan. 708; 77 Pac. Rep. 559, and that a divorced spouse is not a wife for insurance beneficiary purposes, even if the death occurs within six months. Conklin v. United States, 21 Fed. Rep. (2d) 141—D. C. N. D. Cal.

It is a well known principle that the validity of a marriage contract is to be determined according to the lex loci contractus. If it is valid there, with few exceptions, it is valid everywhere. These parties were married in the State of New York. No reference is made to the New York law in the pleadings. In the absence o£ such pleading the presumption must be indulged that the common law of New York is the same as that of New Jersey, R. S. 2:98-28; N. J. S. A. 2:98-28; Kelly v. Kelly, 134 N. J. Eq. 316; 35 Atl. Rep. (2d) 618, and the controversy will therefore be determined by the common law of our state.

The only charge levelled against this marriage is that the violation of the prohibition of the Kansas statute and decree makes it void. The problem, then, is whether the common law of New Jersey on principles of comity requires the enforcement of the limitation on remarriage imposed by this statute.

The Court of Errors and Appeals of New Jersey has not had the issue before it for determination. The only case in this state wherein the question was raised is Marculies v. Marculies, 55 N. J. L. J. 240, decided by Advisory Master Newman in 1932. It appeared there that the wife had obtained a decree of divorce in Virginia from her first husband. The decree forbade remarriage within six months thereafter. Four months later she married her second husband in New Jersey. Thereafter she sued the second husband here for divorce on the ground of extreme cruelty. In this proceeding the husband attacked the marriage as void because of the early remarriage in violation of the Virginia decree. The attack was rejected with this statement:

“The prohibition to remarry is generally considered as a penalty and as having no extraterritorial effect.”

The same problem had been presented previously in the same case to Vice-Chancellor Church on an application for alimony pendente lite. He did not discuss it, but sustained the marriage without regard thereto because of the years of cohabitation between the parties after the impediment had been removed. Margulies v. Margulies, 109 N. J. Eq. 391; 157 Atl. Rep. 676.

While there is no authoritative expression of our common law as to the extraterritorial force of such a prohibition against remarriage, the great weight of authority throughout the country establishes the doctrine that the law of the forum will not enforce the prohibition.

The general rule is stated thus in 32 A. L. R. 1118:

K* * * It may be stated at tbis point that tbe majority of the cases in which the question has arisen have recognized and given effect to a marriage valid by the law of another state or country where it was celebrated, notwithstanding that one.of the parties was at the time under an inhibition against remarriage imposed by a decree of divorce previously rendered in the state where the question arose, or by a statute of that state relating to divorce, or by both decree and statute, assuming that the provision in question did not have the effect to postpone the dissolution of the former marriage relation.”

The statement on the same subject in the Restatement of the Law—Conflict of Laws, •§ 130, is informative:

“If, by a decree of divorce validly granted in one state, one party is forbidden for a certain time or during his life to marry again, and he goes into another state and remarries in accordance with the law of that state, the marriage, unless invalid for other reasons, is valid everywhere, even in the state in which the divorce is granted.”

The Comment under this section is worth noting:

“A distinction is to be noted between this ease and a case where a divorce is, by the law governing it, provisional only until the lapse of a certain time, or the common case of a decree mst, or the so-called interlocutory decree, which does not become absolute until further proceedings or after the lapse of a certain time. In such a ease, neither party ceases to be married until the lapse of the given time, and neither can marry again in any state, since such marriage would be bigamous.”

5 R. C. L. 1004 is to the same effect:

“It is almost universally conceded that statutes prohibiting the guilty party to a judgment of divorce from marrying again, either for a certain period or while the other party to the former marriage lives, are without effect outside of the territorial limits of the prohibiting state. Since such a prohibition is in the nature of a penalty it does not apply to divorces granted outside of the state, nor does it carry any disability beyond the borders of the state where in force.”

See, also, Nelson—Divorce and Annulment, § 20:07; 48 Mar. L. Rev. 124; 44 Har. L. Rev. 501.

The implications of this type decree under the full faith and credit clause of the federal constitution were presented’ to the United States Supreme Court in Loughran v. Loughran, 292 U. S. 216; 54 S. Ct. 684. The court by Mr. Justice Brandéis disposed of the matter thus:

"The mere statutory prohibition by the state of the domicile either generally of the remarriage of a divorced person, ox of remarriage within a prescribed period after the entry of the decree, is given only territorial effect. Such a statute does not invalidate a marriage solemnized in another state in conformity with the laws thereof.”

In Massachusetts, whose common law principles have always borne a close affinity with our own, the same rule was adopted. In Commonwealth v. Lane, 113 Mass. 458, Chief-Justice Gray, speaking for the Supreme Court, said:

“A marriage which is .prohibited here by statute because contrary to the policy of our laws, is yet valid if celebrated elsewhere according to the law of the place even if the parties are citizená and residents of this commonwealth and have gone abroad for the purpose of evading our laws, unless the legislature has clearly enacted that such marriages out of the state shall have no validity here.”

Courts of sister states have passed upon the validity of a marriage contracted in their jurisdiction in violation of this very Kansas statute and of substantially similar laws of other states and have adjudged that the six months bar constitutes no impediment. Bauer v. Abrahams, 73 Colo. 509; 216 Pac. Rep. 259; Wheelock v. Freiwald, 22 Fed. Rep. (2d) 694 (Eighth Cir.); Reger v. Reger, 316 Mo. 1310; 293 S. W. Rep. 414; Horton v. Horton, 22 Ariz. 490; 198 Pac. Rep. 1105; Fisch v. Fisch, 1 Wash. (2d) 698; 97 Pac. Rep. (2d) 147; Webster v. Modern Woodmen of America, 192 Iowa 1376; 186 N. W. Rep. 659. However in Oklahoma, which has the same statute as Kansas, the opposite result was reached on the theory that the statute made the divorce decree a conditional one, that is, one which did not sever the marital status for the six months period. 12 O. S. 1941, §§ 1281 et seq. Atkeson v. Woodmen of the World, 90 Okl. 154; 216 Pac. Rep. 467.

The legislatures of some states, obviously disturbed by the deliberate frustration of the declared public policy against quick remarriage after divorce, or “progressive polygamy” as it has been called, adopted so-called evasion statutes. Wisconsin Stats. 1929, § 245:04; Ill. Rev. Stat., ch. 898, § 20; La. Rev. Stat. Ann., §§ 4445, 4458; Mass. Gen. Laws, ch. 207, § 10-12; Vt. Gen’l Laws, § 3514; W. Va. Code, ch. 48, art. 1, § 27. Such statutes generally declare that if either of the contracting parties residing and intending to continue to reside in the state, goes into another jurisdiction with intent to evade the marriage laws of the domiciliary state, such marriage is void.’ But even here the invalidation is suffered only by residents of the statute enacting sovereign. If the marriage is valid in the jurisdiction of celebration and the parties acquire a residence there or elsewhere outside of the state of original domicil, no effort is made to declare it void. Atwood v. Atwood, 297 Mass. 229; 8 N. E. Rep. (2d) 916.

It has been suggested that in the search for the true rule of the common law to be applied here, heed must be given on principles of comity to the declared public policy of the State of Kansas. Such an argument loses sight of a limitation on the application of rules of comity. If the public policy of the forum is stronger in its implications of service to the needs and interests of the community than is the good neighbor regard for the foreign policy, then the local policy will prevail. The public policy of New Jersey favors the institution of marriage and the preservation of the marital status. It frowns upon divorce and the destruction of the family group. In the execution of this policy our courts have laid down stringent proof requirements in cases of annulment of marriage for alleged bigamy. Tyll v. Keller, 94 N. J. Eq. 426; 120 Atl. Rep. 6.

In the present situation our policy of predicating the status ■of husband and wife on this New York marriage is more urgent than the recognition of the policy of Kansas against remarriage within six months of a divorce decree.

Upon a consideration of the whole subject, the conclusion seems to be required that under the common law of New Jersey the marriage of the petitioner and defendant is a valid one. This declaration of the validity of the marriage is not to be interpreted as a judicial pat on the back for willful evaders of proscriptions against remarriage appearing in foreign divorce decrees. It is not a sanction of such conduct. It is rather an impersonal recognition of the status produced by the marriage ceremony which recognition is made necessary by the needs of an orderly society. On the basis of the many eases appearing in the reports throughout the country, the precipitate haste to remarry seems to serve the purpose after the marriage of providing more leisure time for repentance than for marital bliss.

The view taken herein of the marriage of the parties renders unnecessary consideration of the application of the doctrine of unclean hands and estoppel.

Under the circumstances the petition for annulment will be dismissed.


author: MacLeod, C. P. J.

text:
    Passaic County Court of Common Pleas.
    ANNA ELSIE KLING, PETITIONER-APPELLEE, v. CENTRAL LUMBER AND MILLWORK COMPANY, RESPONDENT-APPELLANT.
    Decided March 8, 1948.

      For the petitioner-appellee, Nathan Babinowitz (Ervan F. Kushner, of counsel).
    For the respondent-appellant, Ilarhevy & Leib (Abraham I. Ilarhevy, of counsel).
   MacLeod, C. P. J.

This is an appeal from a determination of facts and rule for judgment entered in the Workmen’s Compensation Bureau which judgment awarded compensation to Anna Elsie Kling and her infant son, George Kling, as total dependents of Joseph F. Kling, deceased. The respondent-appellant has appealed to this court—its contention being that there was no causal connection between the accident admittedly sustained, by the decedent and his subsequent death.

The material facts in the case are not in dispute. It appears that on July 24th, 1943, the decedent fell from a platform approximately ten to fifteen feet high, located at respondent’s premises. He sustained various injuries, among them being a laceration of the left side of his head immediately over the left eyebrow, which laceration required seven sutures, and a cerebral concussion. The decedent was removed to a hospital in an unconscious state, where he remained overnight and thereafter was treated by his family physician, Dr. Reuben J. Budd, until November 9th, 1943. Treatment was then resumed on June 2d, 1944, and continued until February 27th, 1945. The decedent died on November 2d, 1946.

There is considerable evidence that from the day of the .accident until the day of the decedent’s death, he manifested symptoms such as staggering, headache, dizziness, vomiting, nauseousness, and unsteady gait, and that prior to his accident he was free from these symptoms. The sole issue, since the accident has been admitted as arising out of and in the course •of decedent’s employment with respondent, is whether or not there was a causal connection between the injury to decedent’s head on July 24th, 1943, and his death on November 2d, 1946. I had the advantage of oral argument as well as written briefs. I might say that counsel for both parties in this case argued that matter thoroughly and well. I have come to the conclusion that the findings of fact, determination, and rule for judgment entered in the Workmem’s Compensation Bureau should be affirmed.

The burden of proof, in cases of this nature, rests upon a petitioner to establish his right to an award of compensation from the respondent. As Mr. Justice Trenehard so succinctly said in Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458 :

"The burden of furnishing evidence from which the inference can be legitimately drawn that the death of an employee was caused by can accident arising out of and in the course of his employment’ rests upon the claimant.”

I feel that the petitioner in this case has proven by the greater weight of the evidence that the death of Joseph Kling was causally related to his compensable accident. It is not necessary for a petitioner to prove the causal connection between an injury and an accident with mathematical certainty. I think it sufficient that where an employee suffers •severe and permanent injuries in an accident arising out of and in the course of his employment and immediately thereafter suffers a decline in health, it is extremely probable that the decline in health and in this case the death of Joseph Kling was caused by the accident he sustained. The test in compensation is probability and not certainty. Hercules Powder Co. v. Nieratko, 113 N. J. L. 595; 173 Atl. Rep. 606; affirmed, 114 N. J. L. 254; 176 Atl. Rep. 198. It is true that the medical experts in this case were in disagreement concerning this problem of causal connection, but as was said in Lundy v. Brown, 93 N. J. L. 107; 106 Atl. Rep. 362; affirmed, 93 N. J. L. 469; 108 Atl. Rep. 252:

“It is true that the medical testimony in the case is in sharp conflict on the question whether the decedent died as a result of his injuries or from an entirely independent cause. It is not at all surprising to find experts on the opposite sides of the ease in disagreement in the matter. If the injuries were the producing cause the proof of the fact is sufficient.”

Dr. Harrison P. Martland, who enjoys a widespread reputation as a pathologist, and who is chief medical examiner for Essex County, performed an autopsy on the day ,of decedent’s death. Dr. Martland described his findings as a large tumor, two inches by one inch in size. He denominated this growth as a neuro-fibroid growth. He characterized this type of tumor as slow-developing and slow-growing, and said that there would be, a probable relationship between the decedent’s trauma and his death by brain tumor if “it was an honest and severe trauma sustained by decedent and if the man was unconscious after the fall and that if the man was stuporous, that would be an indication of a severe head injury.” Dr. Martland said in answer to a question propounded by petitioner’s attorney as to the causal relationship between decedent’s fall and his death as follows: “* * * I don’t think there is any doubt about it. Therefore all I can say is that it is a probable aggravation in this case.”

Dr. Guy Kim, who is pathologist for the Paterson General Hospital, testifying as a witness for the petitioner was of the opinion that there was a definite causal connection between the decedent’s accident and his death. He indicated that if the decedent suffered only a cerebral concussion as a result of his fall, his symptoms would be transitory and would subside in time, but that if a tumor had been aggravated, certain symptoms would persist without let up. In this particular case, I find that these symntoms did persist right down to the date of the decedent’s death.

Dr. Beuben J.'Budd, who was the decedent’s treating physician, testified that he saw Kling in the hospital shortly after his accident, and that he appeared to be drowsy, and that he was just recovering from unconsciousness. So it appears at once that the condition of lassitude which was deemed necessary by Dr. Martland was present in this case. Our Supreme Court, in Dorion v. Federal Shipbuilding and Dry Dock Co., 136 N. J. L. 302; 55 Atl. Rep. (2d) 776, decided November 20th, 1947, in a case involving a head injury, said:

“We find the proofs support a finding of a head injury * * and continuing: “It is clear in this case that the paralysis was not due to any physical condition which could have caused the injury, since the only inference to be drawn from the proofs is that the result was due to a blow to the head suffered in falling, and we so find.”

In the Dorion ease, as in the case sub judice, the petitioner fell and struck his head. Dorion’s wife, as did Mrs. Kling, wife of decedent, corroborated the fact that there was injury to petitioner’s head. In the Dorion case, as in the present ease, the petitioner within twenty-four hours after the accident began to manifest neurological symptoms. Mr. Justice Bodine, in sustaining an award of the Compensation Bureau, pointed out that the petitioner’s good health before the accident and his subsequent decline following the accident coupled with the fact that the petitioner suffered a head injury, was sufficient to sustain the award.

Dr. Beuben J. Budd was the only medical witness in this case who was able to testify as to decedent’s physical condition both before and after the accident of July, 1943. A treating physician who was acquainted with his patient’s physical condition not only on the day of an accident but prior thereto and throughout the course of treatment is in a much better position to express an opinion as to cause and effect than medical experts who examine a petitioner once or twice for the purpose.of testifying for a respondent. Schumacker v. Wright Aeronautical Corp., 24 N. J. Mis. R. 18; 45 Atl. Rep. (2d) 447.

If the respondent endeavors to avoid liability by claiming that the death of the decedent was due to a cause for which the employer was not liable, I think that the burden of proof would be on them to show such other cause. Atchinson v. Colgate & Co., 102 N. J. L. 425; 131 Atl. Rep. 921. In the present case there was a continuous chain of symptoms, commonly called bridging symptoms, suffered by the decedent between the time of the accident and the time of his death. These symptoms were entirely absent before the accident, and it leads me to the conclusion that the accident precipitated a latent condition, at least which ultimately resulted in Mr. Kling’s death. Our courts have continuously held that a probable hypothesis is sufficient to sustain a recovery. Auten v. Johnston, 115 N. J. L. 71; 178 Atl. Rep. 187.

Respondent urges upon me the fact that this case is one of novel impression. I might point out that the case of Rightmyer v. Totowa Borough, 16 N. J. Mis. R. 161; 197 Atl. Rep. 650, is a case involving a blow on the head, together with a “complete chain of neurological symptoms.” On the basis of this case alone, I think there is adequate precedent for my decision here. It is interesting to note that the Rightmyer case was appealed, by the respondent, to the Passaic County Court of Common Pleas, where the judgment for the petitioner was affirmed by that court. 17 N. J. Mis. R. 300; 8 Atl. Rep. (2d) 772. The medical experts in this case are unanimous in the opinion that it would be impossible to prove that the tumor existed in decedent’s head on the date of the accident, but I do not consider that the law required proof of this fact. The decedent, prior to his accident, was a working unit, and following his accident, he was a changed man. The mere fact that the explanation for the cause of tumor has not yet been established with certainty in.medical science, yet even if deceased was suffering from a tumor before his accident, it will be quite within the province of the court to find that the death of Joseph Kling was the result of the unusual and forcible pressure on his brain already weakened by disease, which but for the unusual strain would have held out for a considerable period. Voorhees v. Schoonmaker Co., 86 N. J. L. 500; 92 Atl. Rep. 280. The Voorhees case was cited with approval in Geizel v. Regina Co., 96 N. J. L. 31; 114 Atl. Rep. 328, wherein the Supreme Court said:

“Death may be found as having been caused by an accident, although there was a diseased bodily condition prior to the injury, without which death would not have ensued, or, as may be’inferred here, the undeveloped and dangerous physical conditions are set in motion producing such result.”

The lapse of time between the date of decedent’s injury and his subsequent death is not significant because the accident of decedent was admittedly a severe one and he had marked bridging symptoms which continued from the time of his accident until the time of his death. Elting v. S. Smith Coal Co., 130 N. J. L. 250; 32 Atl. Rep. (2d) 601.

The fact that Joseph Kling’s employment was one of the contributing causes without which the accident, which actually happened, would not have happened, and if the accident is one of the contributing causes without which the injury, which actually followed, would not have followed, then the award of the petitioner will be sustained. Tutino v. Ford Motor Car Co., 111 N. J. L. 435; 168 Atl. Rep. 749.

Since the decedent suffered a general health retrogression from the time of his accident until the time of his death, this of itself is indicative of the fact that without the accident he would not have died. Woodle v. Sullivan, 19 N. J. Mis. R. 458; 21 Atl. Rep. (2d) 151. When an employee receives, personal injuries from an accident arising out of and in the course of his employment and he dies from these injuries, the death may be the result of the injury within the Workmen’s Compensation Act, N. J. S. A. 34:15-1, et seq., even though it was not the natural Tesult of the injury. Lundy v. Brown & Co., supra.

The judgment below is affirmed.


author: Bkown, S. C. C.

text:
    CHARLES SPILLNER, PLAINTIFF, v. SHIRLEY GUENTHER, DEFENDANT.
    Decided April 5, 1948.
    For the plaintiff, Elsie L. White.

    For the defendant, Levenson & Levenson.

   Bkown, S. C. C.

The defendant moves to strike the complaint in the above entitled canse on the ground “that the facts thereof fail and neglect to set forth a cause of action against the defendant.” In the briefs tiled both parties present their argument upon two grounds; (1), that the cause of action was based upon fraud and misrepresentation, and (2), that the action is a collateral attack upon the judgment of another court of competent jurisdiction. The complaint contains allegations that the plaintiff was a tenant of the defendant on July 1st, 1946; that he received a letter from the defendant requesting the plaintiff to vacate his family from the premises within a period of sixty days, which letter contained a statement that the defendant needed the premises for members of his family. Upon receipt of the letter the plaintiff endeavored to find rooms elsewhere without success and he so informed the defendant. On July 29th, 1946, plaintiff received a letter from the attorneys of the defendant to the effect that unless the plaintiff moved immediately dispossess proceedings would be instituted against him. Those proceedings were undertaken in the District Court in which a summons was issued November 25th, 1946, returnable December 5th, 1946. Trial was postponed until December 10th, 1946, at which time plaintiff alleges that he was ordered by the judge of the District Court to vacate the premises on or before February 1st, 1947. Plaintiff was unable to find any place to live and on January 26th, 1947, he was compelled to break up his family unit and move to a furnished room located in another part of the municipality. Thereafter the defendant sold the premises formerly occupied by the plaintiff and the inducement for the sale of the property was the defendant represented to the buyer that the apartment occupied by the plaintiff and his family would be vacated at the time of the closing of title. Plaintiff alleges that defendant knowingly and with malice aforethought compelled plaintiff to vacate the premises in question knowing that the statement that she wanted it for family use was untrue and that her reason for wanting the premises was to sell the same for a sizeable profit. The plaintiff also states in his complaint that he relied upon the representation made by the defendant and that he was put to great expense and inconvenience for which he seeks damages. The complaint does not contain an allegation that a warrant for removal was issued or served on plaintiff nor does the complaint contain any reference to the rules and regulations of the Office of Price Administrator or in violation of such regulations. The defendant contends that the dispossess proceedings in the District Court was not a violation of the law and the defendant was doing what she had a legal right to do; or that if false statements or misrepresentations weTe made in the District Court to secure entry of judgment for possession, the defendant would be liable to indictment for perjury. In order to properly determine the question whether the action in this court is an attack on the judgment of a court of competent jurisdiction a reference should be made to the statutes and decisions that relate thereto. An action in a District Court for possession is in the nature of a summary proceeding, District Court Act, R. S. 2:32-265; N. J. S. A. 2:32-265. See, also, McGann v. La Brecque Co., 91 N. J. Eq. (at p. 308); 109 Atl. Rep. 501, Court of Errors and Appeals opinion, where such proceedings are characterized as “summary proceedings to dispossess.” The District Court Act, R. S. 2:32-273; N. J. S. A. 2 :32-273, provides “proceedings by virtue of section 2:32-265 of this title shall not be appealed nor removed by certiorari but the landlord shall remain liable in an action at law for any unlawful proceedings under sections 2:32-265 to 2 :32-277 of this title.” Under the Landlord and Tenant Act, R. S. 2:58-26, N. J. S. A. 2:58-26, similar language is used except in the Landlord and Tenant Act the proceedings is “in the nature of an action of trespass.” As pointed out in McGann v. La Brecque Co., supra, the word “remain” that appears in the District Court Act as well as the Landlord and Tenant Act, is clear proof that it was the old common law action of trespass that was preserved, and not a new remedy provided for the first time. A judgment for possession entered in a District Court, so far as it affects the rights of the parties is a determination for that occasion and nothing more. Either of the parties in any subsequent legal proceedings may deny or disprove the facts upon which the judgment is based. Such a judgment is not res adjudicaia in a subsequent action for damages brought by the tenant against the landlord for unlawfully proceeding under the act. Kietrys v. Cregar, 23 N. J. Mis. R. 273; 43 Atl. Rep. (2d) 810. Evidently the legislature in providing for summary proceedings by a landlord to obtain the right to immediate possession of a property, recognizes that the claim of the landlord might not have been justified and consequently, the legislature enacted that the landlord shall “remain” liable in an action at law in the nature of a suit for trespass for any unlawful proceeding under the act. Although a landlord may through summary proceedings obtain judgment to dispossess a tenant, to maintain an action for trespass for any unlawful proceeding under the statute not only must the judgment be alleged but that the tenant was removed by a warrant for removal; that such warrant may be considered as evidence of trespass. The element of trespass is present when possession of the tenant is disturbed by his removal by virtue of a warrant for possession. Coe v. Haines, 44 N. J. L. 134. While the complaint in the above entitled cause is not as complete as it could be; nevertheless, the court is of the opinion that the action is one fo'r unlawful eviction based upon fraudulent representations. Further particulars upon which the action is based can be demanded by the defendant so as to more fully apprise her of the relevant issues in the case. The court determines that the motion to strike the complaint be denied and an order may be entered accordingly.


author: Drewen, C. P. J.

text:
    Hudson County Court of Common Pleas.
    ELSA MOLLER, PETITIONER-APPELLANT, v. ATLAS STEEL PRODUCTS CO., RESPONDENT-APPELLEE.
    Decided March 26, 1948.
    For the petitioner-appellant, Chris G. Pappas (Louis Sieisel and Elsie L. White, of counsel).
    For the respondent-appellee, O’Mara, Conway & Schumann (Charles A. Gormley, of counsel).
   Drewen, C. P. J.

Petitioner’s decedent collapsed and died instantly while at his work. He was 57 years of age and had apparently been in continuous good health. He was a glazer and his employment at the time was in the removal of putty from steel window frames, in which he used an air chisel connected by hose with a movable compressor standing on the floor. The chisel, which the user held in both hands, weighed about six or seven pounds; the added weight of the connected hose made a total of ten pounds. Whether or not decedent was actually supporting the weight of the hose at the time he fell, or, indeed, whether he was then actually operating the chisel, is not at all clear from the testimony.

According to fellow workers “sometimes the putty chips off light, sometimes hard * * * at times it doesn’t take much effort. * * * sometimes you got to put some pressure on it if the putty is hard; if the putty is soft it goes very easy.” There was nothing extraordinary in decedent’s work. He had been doing the same thing steadily for a considerable period. It was his customary occupation. Counsel make particular effort, and by a rather free use of leading questions, to show a significant degree of strain or exertion in decedent’s activity prior to his death, but entirely without effect, as we view the record.

Is there the requisite proof that death was causally related to the' employment ? We judge not. Decedent had just returned from lunch and had scarcely resumed his work when he fell dead. One of petitioner’s medical experts gives it as his opinion-that death “was caused by anoxia secondary to the effort in which he was engaged;” that having just eaten lunch he (decedent) was subject to a decrease in the circulation to the heart; that the “effort of chipping and the vibration set up by the hammer * * * was enough to cause a relative deficiency to the heart muscle with resultant death of the heart muscle known as myocardial infarction, with death.” Nothing is disclosed with respect to the “effort of chipping” more than we have already mentioned; and concerning any “vibration set up by the hammer” there is simply no showing of a degree of vibration such as to render vibration an evidential factor in the case. Surely we would not be warranted in assuming that vibration, without more and in the absence of further qualifying evidence, is of particular consequence. The medical opinions adduced on petitioner’s behalf are in our judgment utterly speculative, resting on no more than the mere coincidence of employment and death.

The fact alone that one dies at his work does not establish causal relation. True, no particular degree of rigor in the work need be shown, but there must be circumstances from which an inference of cause and effect can be fairly drawn. We are taught by repeated and universal experience that death comes to men asleep or awake, in every circumstance of mental and bodily ease. When it occurs therefore during the activities of normal employment, likely as not a mere coincidence is thus presented and nothing more. The doubt must be resolved by affirmative proof, circumstantial or direct. In the present ease there was an obvious effort to resolve it, but without success. How hard the experts had to look for things with which to make a nexus may be inferred from such statements as these: “The mere fact that he died in these circumstances is an accident.” “He was on a ladder, which is not a normal condition for a working man to be in * * * that in itself is evidence.” “He was standing on the ladder which is a little harder than standing on the ground.” If there is any force at all in the medical pronouncements of petitioner’s witnesses, and we judge there is none, it is certainly counter-vailed by the more thorough and convincing testimony of Dr. Clark for respondent.

Petitioner relies mainly on the principles expressed by this court in Rivers v. East Coast Shipyards, Inc., 24 N. J. Mis. R. 223; 48 Atl. Rep. (2d) 311. The difference between the two cases is a difference in proof, and a contrasting of the facts in the one with those in the other is a conclusive answer to petitioner’s argument from the Eivers decisions. There the decedent had a definite prior history of grave cardiac diagnosis. Because of it he had been dismissed from his previous employment on a medical disqualification. Anything like a preliminary examination for his final employment would most certainly have barred him. The work in which he had been shortly engaged at the time of his death was rigorous and would have been so even for a man in good health; while his known prior occupation had required no more than easy physical effort. It is, however, concerning the work at which he died, sufficient to say that in his impaired condition it was too much for him. All the antecedent facts and circumstances in the Eivers case were a sure prophecy that work like that of his final employment would soon result in his death, just as it did. Circumstantial evidence in that case carried the point of causal relation beyond question. In no respect does the present record present 8 parallel.

The petition is dismissed-


text:
    Hudson County Court of Common Pleas.
    JESSIE GIACUMBO AND FRANK GIACUMBO, PLAINTIFFS, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT.
    Decided April 8, 1948.
    Por the plaintiffs, Andrew 0. Wittreich.

    Por the defendant, Carl T. Freggens (by Herman H. Witte, Jr.).

   Drewen, C. P. J.

Defendant moves to strike a demand made upon it for the particulars of its pleaded defenses of sole negligence and contributory negligence. The suit is one for injuries alleged to have been sustained by the female plaintiff while a passenger in defendant’s bus. The demand is for the particulars of the passenger’s behavior constituting the grounds of the defenses mentioned. Defendant contends that the demand is improper, for reasons that will appear.

Plaintiff’s attorney approaches the problem with much indignation that in a case of this kind, where injuries are .alleged by a passenger against a common carrier, such defenses should be resorted to, and he urges that since they have been resorted to there is nothing for it but to correct the enormity by requiring that the details be revealed in advance of trial. For answer to this it need only be observed that in a case like that before us it is certainly not usual for a defense like either of those adduced to prevail, but that at the same time there is no reason in law for regarding the defenses as outside the scope of permissible pleading nor for assuming that they cannot be supported by provable facts. On defendant’s part, it is urged, in effect, that it has a right to these defenses, if only as matter of caution, and to rely for their establishment upon the fortuities of proof at the trial; that the restricting of the defenses by particulars now might deprive it of the benefit of such proof; and that in any ease the details demanded are peculiarly within plaintiffs’ own knowledge.

The theory and purpose of pretrial inquest, in whatever form, is the compelling of factual truth in the controversy, short of invading the private, separate counsels of the parties. Hence the well-recognized rule that one may exact disclosure of what is needful to the proof of his own case but may not pry into that of his adversary. Concerning the plaintiffs’ demand before us, it is the court’s view that it does not seek what is needful to the proof of plaintiffs’ case, that its enforcement would not serve to elicit any truth that plaintiffs do not already know, and might result in the harmful suppression of truth as developed in the course of the trial.

We think this view can be readily justified. Where does the truth-seeking test, applied in conformity with the theory and purpose of pre-trial inquiry already stated, lead us in the present circumstances? Let us assume that the defenses in question are entirely cautionary, and that the defendant, were the demand sustained, would have to admit that it is aware of no particulars, or that, in the same contingency, it would be driven to the device of being extremely imaginative in anticipating all possible developments in the proof as well as every possible variety of negligence on the part of the passenger, and of citing all of these as a compliance with the demand. Difficulties appear at once. Were defendant compelled to admit that it has no particulars and thus, in effect, that its defenses are without presently known substance in fact, would it follow, as matter of rational necessity or of that common sense of which the law is said to be compounded, that plaintiffs should have the right to suppress these defenses altogether? If not, then, in the event these are cautionary defenses, plaintiffs would gain nothing from their demand. If, on the other hand, the defenses, in the juncture indicated, could be suppressed, would there be any reason for denying a similar right to suppress in similar circumstances in any and every other suit grounded in negligence? And would the logic of the latter course suggest the abolition of cautionary defenses generally? It appears quite plain that a denial of this motion would carry implications well beyond the immediate concern. Furthermore, a particularization of the defenses could readily so restrict them as to foreclose a defendant from the advantage of unforeseen proof at the trial, a result that could have the evil effect of excluding the truth pro tanto as an influence in the final outcome. As against these consequences of denying the motion, the granting of it would do no more than deprive plaintiffs of the disclosure of that which they must already know, for it goes without saying that the defenses could never be materialized except by proof of what the female plaintiff herself did.

Upon a contrasting of the opposing contingencies we have no doubt that the paramount design of pretrial inquiry would be much better served by granting the motion than by denying it.

The foregoing is in keeping with the judicial pronouncements on the subject in this state. While these are all trial court decisions, they are in full accord, and are also in agreement with the decisions of the courts of New York. Wigler v. Public Service Transport Co., 10 N. J. Mis. R. 1077; 162 Atl. Rep. 878; Ditmars v. Interchemical Corp., 16 N. J. Mis. R. 81; 197 Atl. Rep. 257; Young v. Public Service Interstate Trans. (Bergen Circuit Court, not reported); Egan v. Tishman & Sons, 222 App. Div. 141; 225 N. Y. S. 631; Fernet v. James Stewart & Co., 163 App. Div. 112; 148 N. Y. S. 646; McCallum v. Beau-site Co., 176 App. Div. 681; 163 N. Y. S. 819; Conklin v. Erie Railroad, 137 N. Y. Misc. 569; 244 N. Y. Supp. 538; Griffin v. Cunard S. S. Co., 159 App. Div. 453; 144 N. Y. Supp. 517; Bowker v. Donnell, 226 Fed. Rep. 359. We are aware of no dissent from the principles enunciated.

The few instances in which the demand has been sustained for particulars or for answers to interrogatories, as the case happened to be, in relation to the defense of contributory negligence, are cases affected by some outstanding and unusual factor, and in which the ruling serves to emphasize the reasons why, in an ordinary case like that before us, the demand should be overruled. Rosseter v. Farrier, 18 N. J. Mis. R. 355; 13 Atl. Rep. (2d) 579; Cohen v. North Jersey State Railway Co., 29 N. J. L. J. 299; McCallum, v. Beau-site Co., supra; Conklin v. Erie Railroad, supra.

The motion to strike is granted.


author: Labrecque, Commissioner.

text:
    Division of Tax Appeals.
    IN THE MATTER OF APPEAL OF CITY OF ASBURY PARK, PETITIONER, v. THE SALVATION ARMY, RESPONDENT. For the year 1946.
    Decided March 23, 1948.
    For the petitioner, E. Alexander Edelstein.

    For the respondent, Henry H. Patterson.

   Labrecque, Commissioner.

This appeal brings np for Teview the action of the Monmouth County Board of Taxation in cancelling the 1946 assessment on lands and premises owned by the respondent, The Salvation Army, located in the City of Asbury Park.

The Salvation Army was incorporated in this state on October 4th, 1920, under an act entitled, “An Act Respecting the Incorporation of Religious Bodies.” The principal purposes of incorporation, as set forth in its certificate, are as follows:

“(a) For the worship of Almighty God and the preaching •of the Gospel; to benefit the poor and needy by ministering to their needs and necessities; by assisting them to establish themselves in life by bringing their minds and hearts under the influence of education and of the Christian religion, by aiding the erring, the sick, the aged and homeless and by ■otherwise promoting their welfare according to the rules and regulations and doctrines and disciplines and usages of The Salvation Army and to carry on every kind of work necessary and incidental to the maintenance of such religious, educational, charitable and philanthropic work, but that all such work shall be conducted not for pecuniary profit.

“(b) To take, to have and to hold and control all the temporalities and property, both real and personal, belonging to The Salvation Army in the State of New Jersey and upon the filing and recording of this certificate to become the lawful owner of any and all such property now held in the name of The Salvation Army, a Corporation under the Laws of the State of New York, and situate in the State of New Jersey, together with the revenues therefrom, and to see that the entire receipts, revenues and emoluments derived therefrom and from all the various branches of its work in the State of New Jersey are devoted exclusively to such religious, educational, charitable and philanthropic work, with the exception of a moderate and reasonable compensation to those conducting and having the management of its objects and purposes.”

On May 8th, 1944, the corporation became the owner of certain lands and premises, located at No. 506 Grand Avenue, Asbury Park, New Jersey. For the year 1946, the property was assessed at

Land ................. $5,000.00
Improvements ......... 7,000.00
Personal .............. 300.00
Total .............. $12,300.00

Upon appeal to the County Board, the assessment was set aside and the property was held to be exempt from táxation. From the action of the County Board in so doing; the city appeals.

The premises in question consist of a lot approximately 40 x 133 feet, on which is erected a building used and maintained as a home for retired Salvation Army officers. These officers, who are duly ordained ministers, are, through age, infirmity or physical disability, unable to provide for themselves or find other places to live. The home accommodates twelve persons. It is not conducted for profit. The inmates, are required to pay a fee, depending upon the amount of the pension which they receive. The fees collected are sufficient to defray approximately 40 per cent, of the cost of operation of the home. The remainder is made up through general funds of the Salvation Army. The building is wholly controlled by the Salvation Army and no income is derived from its operation.

Our examination of the facts as to the use of this property leads us to the conclusion that it is exempt from taxation for the year in question. We find that the building in question is . used solely and exclusively for religious and charitable purposes within the purview of the statute. R. S. 54:A-3.6, and that the personalty is used- and devoted to the same purposes.

While the diligence of counsel has revealed no case dealing with a situation exactly similar to the one sub judice, the principle here involved has been frequently passed upon by our courts. Thus in Paterson Rescue Mission v. High, 64 N. J. L. 116; 44 Atl. Rep. 974, our Supreme Court, in an opinion by Mr. Justice Depue, held that property devoted to the purposes of a home for aged men was exempt from taxation. This ease was later followed by the Supreme Court in Women’s Christian Association of Philadelphia v. Lippincott, 9 N. J. Mis. R. 133; 153 Atl. Rep. 261, where property donated by the late James A. Bradley of Asbury Park, and used as a summer home for working girls, was held to be exempt from taxation. To the same effect is Trenton Ladies’ Sick Benefit Society v. Trenton, 19 N. J. Mis. R. 176; 17 Atl. Rep. (2d) 809. See, also, Borough of Point Pleasant Beach v. St. Joseph’s-by-the-Sea, N. J. Tax Reports, 1912-1934, p. 365. Bamberger Seashore Home v. Borough of Longport, N. J. Tax Reports, 1912-1934, p. 163 (reversed on other grounds). Sea Isle City v. Sisters of The Order of St. Dominic, N. J. Tax Reports, 1912-1934, p. 418; Old Ladies’ Home of Bergen County v. Hackensack, N. J. Tax Reports, 1934-1939, p. 42; Montclair v. Charles Bierman Home for Aged People, N. J. Tax Reports, 1934-1939, p. 711.

The case of Sisters of The Order of St. Dominic v. Sea Isle City, 101 N. J. L. 227; 127 Atl. Rep. 217, cited by the city, is not applicable. In that case the use of the premises by the Sisters did not correspond with the objects of the Order, as set forth in its charter. Upon the subsequent amendment of the charter, the property of the Order was held to be exempt by the State Board of Taxes and Assessment in Sea Isle City v. Sisters of The Order of St. Dominic, N. J. Tax Reports, 1912-1934, p. 418; 51 N. J. L. J. 81.

It is urged by the city that the fact that a charge is made to each inmate of the home, places the case without the pale of the statute. This contention is without substance. Where the objects of an institution are wholly of a charitable nature, with no element of private gain, the receipt of compensation from those who enjoy the benefits does not affect its charitable nature. Paterson Rescue Mission v. High, supra; Women’s Christian Association of Philadelphia v. Lippincott, supra. Indeed the statute, R. S. 54:4-3.6; N. J. S. A. 54:4-3.6, makes provision for the payment of such fees by providing:

“except that the exemption of the buildings and lands used for charitable, benevolent or religious purposes shall extend to cases where the charitable, benevolent or religious work therein carried on is supported partly by fees and charges received from or on behalf of beneficiaries using or occupying the building; provided the building is wholly controlled by, and the entire income therefrom is used for said charitable, benevolent or religious purposes.”

It is further urged by the city that in order to justify the exemption, the services of the home were required to be available to persons of all faiths, rather than restricted to former officers of the Salvation Army. No judicial authority is adduced in support of this contention and the state in question sets up no test as a prerequisite to exemption. On the-contrary, the reports are replete with cases in which exemptions have been allowed, notwithstanding that the benefits the charity were restricted to members of a particular race or creed. A typical example of this is found in Montclair v. Charles Bierman Home for Aged People, supra, where the home in question was established for the use of those of the-Jewish faith.

None of the remaining reasons urged by the appellant sets forth any ground for reversal of the County Board’s action.

Por the reasons stated, the petition will be dismissed and' the action - of the Monmouth County Board of Taxation affirmed.


author: Joseph L. Smith, C. C. J.

text:
    Essex County Circuit Court.
    SERAFINA DE STEFANO, PLAINTIFF, v. VICTOR D’ALLESANDRO, DEFENDANT.
    Decided March 31, 1948.
    For the plaintiff, Carl & William Ábruzzese and Ralph C. Mesce.

    For the defendant, Levy, Fenster & McCloshey.

   Joseph L. Smith, C. C. J.

This is a motion to strike the complaint on the ground that it is sham. The suit is an action in ejectment. The plaintiff alleges that her right to possession of the premises in question accrued on the 7th day of February, 1933. The complaint is in the statutory form.

The affidavit of the plaintiff sets forth that she is the mortgagee in a purchase-money mortgage made by the defendant. and that the said mortgage contained a covenant whereby the plaintiff may enter and take possession of the premises upon default in the performance in the conditions contained therein.

The plaintiff alleges a breach in that the purchase-money mortgage has not been paid. The defendant, by affidavit, alleges that in August, 1926, the plaintiff conveyed the premises to the defendant and the defendant executed a purchase-money mortgage, which said mortgage was a second mortgage, subject to a first mortgage held by the Howard Savings Institution.

In 1933 the Howard Savings Institution foreclosed its first mortgage and made the present plaintiff and defendant parties thereto. A final decree in the foreclosure proceeding was filed on April 3d, 1933, and a sale of the property was held. The Howard Savings Institution purchased the property at the foreclosure sale. Subsequently, the property was conveyed to Antoinette D’AIIesandro and she conveyed said property to the defendant.

The plaintiff resists the motion to strike the complaint on the ground that an action in ejectment is a statutory proceeding and that the defendant is limited to a plea of not guilty and to a plea to the jurisdiction by leave of the court. Ahlemeyer v. Miller, 103 N. J. L. 617; 137 Atl. Rep. 543.

The defendant asserts that the power of the court in all suits to strike a pleading as sham is contained in R. S. 2:27-124; N. J. S. A. 2:27-124.

The defendant also relies on the case of Guardian Life Insurance Co. v. Rita Realty Co., 17 N. J. Mis. R. 87; 5 Atl. Rep. (2d) 45, wherein the answer in ejectment was stricken.

In Sunshine Park, Inc. v. Gulvin, 21 N. J. Mis. R. 282, 284; 33 Atl. Rep. (2d) 704, 705, Mr. Justice Burling (then a Circuit Court Judge and Supreme Court Commissioner) (at p. 284), said:

“In the first instance, as a matter of practice, there seems to be a doubt as to the authority for a motion to strike out a pleading in the nature of a demurrer at common law in an ejectment and since there is no statute which provides for the striking out of a pleading in an action in ejectment a notice for that purpose cannot be treated as a demurrer.” Ahlemeyer v. Miller, 103 N. J. L. 617; 137 Atl. Rep. 543.

The power to strike out a pleading must be exercised with the greatest care and where falsity is alleged it must appear clearly and palpably so. Cross v. Margolis, 136 N. J. L. 453; 56 Atl. Rep. (2d) 759.

On the affidavits presented in the instant case, while the affidavit of the plaintiff does not controvert the facts set forth in the defendant’s affidavit, yet there is nothing sham in the plaintiff’s factual presentation. On the trial of the issue it may be outweighed by controverting evidence, but it meets the requirements at this stage. Lipari v. Hudson County, 135 N. J. L. 359; 52 Atl. Rep. (2d) 40.

It is the duty of the court to determine whether an issue of fact has been presented and not to try the issue on affidavits. Barnes v. P. & D. Manufacturing Co., 117 N. J. L. 156; 187 Atl. Rep. 186.

The determination of the points of law raised herein depends on the factual question of the existence and terms of the covenant which the plaintiff contends was breached and must await the timely presentment of proof and evidence relative thereto. The courts are not prone to grant a motion to strike out pleadings unless no factual issue has been raised, or there is no legal dispute. Cross v. Margolis, supra. There may or may not be any factual dispute involved in the instant case, but because of the legal dispute involved this court considers it desirable to have the proofs, evidence, and facts fully developed by trial evidence so that the legal rule may be more intelligently considered and applied. See Lipari v. Hudson County, supra.

In Cross v. Margolis, supra, Mr. Justice Burling said at p. 760; of 56 Atl. Rep. (2d): “The legal points that have been raised with respect to the alleged agreement are not presently susceptible of determination until the entire facts are more fully elicited as a result of direct and cross-examination of the witnesses.”

This ruling, it seems to this court, is equally applicable in the instant case.

The motion to strike the complaint is denied.

Counsel may present an appropriate order.


author: Smith, William A., S. C. C.

text:
    SAMUEL KANENGISER, PLAINTIFF, v. METROPOLITAN LIFE INSURANCE COMPANY, DEFENDANT.
    Decided March 30, 1948.
    For the plaintiff, Milton 1MV & Adrian M. TJnger.

    For the defendant, McCarter, English & Btuder (by Nicholas Conover English).

   Smith, William A., S. C. C.

This is a suit to recover disability benefits under an accident and health policy. The allegation is that the plaintiff became disabled on January 14th, 1942, but by subsequent amendments the plaintiff’s allegation is that he became disabled on or about November 20th, 1941. Defendant now moves specifically to strike each of the replies, to the special defenses two to six, inclusive, on grounds stated in the motion, the first defense being a general denial.

The second defense sets up the period of limitations of the action as provided in the policy. Paragraph two of the second defense sets up the provisions of paragraph fourteen of the policy providing for the limitation which is as follows:

"14. dSTo action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after proof of loss has been filed in accordance with the requirements of this policy, nor shall such action be brought at all unless brought within two years from the expiration of the time within which proof of loss is required by the policy.”

Paragraph three of the second separate defense of the answer alleges the policy provision with regard to furnishing proof of loss, which is as follows: ’ ■

"Affirmative proof of loss must be furnished to the Company at its said office in case of claim for loss of time from disability within ninety days after the termination of the period for which the Company is liable, and in case of claim for any other loss, within ninety days after the date of such loss.”

The defendant then alleges that the period of liability under the policies for disability does not exceed fifty-two weeks, and then alleges: •

"This action was not brought within two years from the expiration of the time within which proof of loss is required by the policy.”

The reply to this defense admits the allegations of the second defense, but alleges:

"* * * as and for a further reply thereto states that defendant did waive the provisions in said policy with respect to the furnishing of proof of loss and the bringing of suit within the time limited in said policy in the manner hereim after indicated: the defendant, subsequent to the time within which proof of loss was required to be furnished by said policy, on divers occasions, did demaiid and require, as pro-? vided for in said policy, that plaintiff should furnish further proof of loss by submitting, and accordingly plaintiff did submit, to examinations of his person by physicians employed the defendant. The defendant subsequent to the time within which proof of loss was required to he furnished by said policy did demand and require that plaintiff should prepare, or cause to be prepared, and accordingly plaintiff did prepare or cause to be prepared, proofs of loss on forms furnished by defendant, and defendant did receive from plaintiff and retain said proofs of loss. The defendant on or about October 16th, 1942, on or about June 16th, 1943, and on or about September 23d, 1943, did deny liability under said policy on other grounds exclusive of the grounds set forth in defendant’s second defense of the answer, as amended, to wit, that plaintiff had mis-stated his age in making application for said policy.”

The policy provision with regard to limitation which is set up in the defendant’s answer is quoted from the provisions contained in the statute which is the standard provision required by the statute to be a part of each policy; its wording is as is stated in paragraph two of the second defense. N. J. S. A. 17:38-3(13).

Applying the policy provision with regard to limitation, to the facts of this case as set forth in the amended complaint, viz., that the plaintiff became disabled on November 20th, 1941, we find that the period within which suit must be brought under the policy provision, expired February 18th, 1945. Suit was actually started June 12th, 1947.

The facts stated in the reply setting up the defense of waiver all go to a waiver of the necessity of furnishing a proof of loss on time as required in the policy or of furnishing one at all.

The charge of limitation of bringing suit does not hinge on the furnishing of proof of loss, but it does hinge on the date of filing the proof of loss as required under the terms of the policy. This is quite an important distinction. The provision of the policy commencing the running of the limitation as to time to sue is not from the time of furnishing proof of loss or its acceptance by the defendant, but the policy provision specifies the requirement of the limitation as within two years from the expiration of the time within which proof of loss is required by the policy.

There have been no facts set up in the reply showing a waiver of the provision as to limitation of the time of bringing suit under the policy provision. In fact the grounds of waiver as set out in the reply go to sustaining a waiver subsequent to the date of the expiration under the time limited for bringing suit under the policy. Hone of the cases submitted by the plaintiff go to the limitation of time to sue under the policy terms, and it cannot be said that a waiver of the provision of furnishing proof of loss after the time to sue has expired under the terms of the policy is a waiver of the time limiting the time to bring suit under the policy. The expiration of the time limited in which to bring suit under the policy may be pleaded or not, as the defendant may decide, and in this ease it has been pleaded.

The determination of the court on this motion with reference to the second defense is dispositive of the whole ease and it will be unnecessary to pass on the other grounds urged by the defendant for striking out portions of the reply.

Application is made on the notice of motion for final judgment in defendant’s favor and under rule 40 the defendant is entitled to such judgment.


author: Davidson, C. C. J.

text:
    ANTHONY MARTINI, RELATOR, v. FRANK DE MURO, DEFENDANT.
    Decided April 8, 1948.
    'On quo warranto.

    For the relator, Isadore Babinowitz.

    For the defendant, Holler & Laihs.

   Davidson, C. C. J.

This is an information in the nature <of a quo warranto, relator, Anthony Martini, averring that •defendant, Frank De Muro, has usurped and unlawfully holds the office of superintendent of public works in the Department of Public Works of the City of Passaic. There is little substantial dispute of the essential facts and determination of the issue must primarily rest upon the documentary exhibits offered at trial.

Delator, on May 23d, 1939, was appointed as street superintendent in the Department of Public Works, for a term ending May 23d, 1942; he held over until December loth, 1942, when he was appointed as superintendent of streets for a term of three years ending December 14th, 1945; he again held over until January 14th, 1947, when he was appointed as superintendent of public works in the Department of Public Works, for a term of three years ending January 14th, 1950. He subscribed to an oath of office upon each appointment and in each instance received a certificate of appointment from the city clerk. Ho charges were preferred against him. nor was public hearing held, and on September 23d, 1947, he was notified of his summary dismissal. He claims title to the office and seeks ouster of defendant.

Defendant, on September 23d, 1947, was appointed as superintendent of streets, to be known as superintendent of public works, in the Department of Public Works, for a term of three years ending September 23d, 1950, and duly subscribed to an oath of office. He interposes two defenses to relator’s claim of title: first, that his appointment was valid by reason of the fact that the post was vacant at that time; secondly, the procedural defense that the superintendent of public works is a position, not an office, and consequently the remedy of quo warranto is not available to test title.

There is no substance to defendant’s first contention, based upon a letter dated September 15th, 1944, addressed to Hon. Guy A. De Muro and Mr. William F; Laporte by Mayor .Hicholas Martini, Director of Public Works, which letter he seeks to construe as an appointment of relator. The evidence clearly indicates that this was nothing more than notification to the fiscal officers of an increase in salary authorized under an ordinance adopted August 8th, 1944. It refers specifically to “the recent ordinance revising salaries” and cannot possibly constitute an appointment for no vacancy existed, as relator was already occupying the office at that time for a definite term which had not yet expired, and it would, -therefore, have been legally ineffective,in any event.

The sole remaining question is whether this action is available to relator, for it is conceded that quo warranto is the exclusive legal remedy to try the title to an office. Duncan v. Board of Fire, &c., Commissioners, 131 N. J. L. 443; 37 Atl. Rep. (2d) 85. It thus becomes necessary to determine whether defendant, as superintendent of public works, is the incumbent of an office in contemplation of law, as distinguished from a position.

The generally accepted definitions consistently followed with approval are set forth in Fredericks v. Board of Health, 82 N. J. L. 200; 82 Atl. Rep. 528:

“An office is a place in a governmental system created or recognized by the law of the state which either directly or by delegated authority assigns to the incumbent' thereof the continuous performance of certain permanent public duties. * * *.

“A position is analogous to an office, in that the duties that pertain to it are permanent and certain, but it differs from an office, in that its duties may be nongovernmental, and not assigned to it by any public law of the state.”

The City of Passaic was incorporated in 1873 and thereafter operated under a councilmanic system until the commission form of government was adopted under the Walsh Act in 1911. The City Charter provided under title II, paragraph 9 for the appointment of a superintendent of streets; paragraph 15 provides that any person appointed to any office take and subscribe an oath of office; and title IY, “Powers ■and Duties of Officers,” paragraph 39 provides that:

“The' Superintendent of Streets shall perform such duties as the City Council shall by ordinance or otherwise prescribe.”

On December 4th, 1804, the City Council adopted an ordinance concerning the general municipal affairs of the City of Passaic and under chapter 13, subdivision 3, assigned to the street superintendent many specific permanent public duties, including the power to grant and renew permits under such restrictions as he might deem necessary; to order removal and subsequent sale of articles unlawfully encumbering any street or public place; to grant permits for street openings and providing that replacement be done to his satisfaction and under his supervision; providing for notification of the superintendent of streets after completion of work for which permits were granted; and under section 3 charging the superintendent of streets with the duty of keeping an accurate payroll account of each person employed by him on account of the city, or furnishing teams or horses and carts at work on the streets, charging him with submitting to the City Council a complete payroll on the first Monday in each month; and placing upon him the further duty of bringing actions in the name of the city for the recovery of penalties incurred by the violations of city ordinances respecting streets and public places.

R. S. 40 :m-166, L. 1899, ch. 34; N. J. S. A. 40:171-166, provides that in all cities of the second class of this state wherein they have an officer known as a superintendent of streets and sewers or superintendent of streets, the legislative body of any such city may fix the term and annual salary of such officer.

R. S. 40:72-3; N. J. S. A. 40:72-3 (the Walsh Act), provides:

“All ordinances or resolutions heretofore passed in any such municipality, not inconsistent with the rights and powers herein granted shall remain in full force and effect until altered or repealed by the commissioners in the manner herein provided.”

And R. S. 40:71-8; N. J. S. A. 40:71-8, continues the corporate existence of any municipality adopting the Walsh Act, N. J. S. A. 40:70-1, et seq., and further provides that all laws, general or special, relating to such municipality, shall, except so far as is inconsistent with said act, apply to such municipality, and it shall have and exercise the powers and duties thereby conferred or imposed.

R. S. 40:72-2; N. J. S. A. 40:72—2, authorizes the Board of Commissioners to create such subordinate boards and appoint such officers as it may deem necessary for the proper and efficient conduct of the affairs of the municipality, and accordingly, “An Ordinance to create certain of the subordinate municipal offices, to prescribe their powers and duties, and to fix their respective salaries and terms of office,” adopted by the Board of Commissioners on December 8th, 1911, •shortly after the adoption of the Walsh Act, provided for the appointment of a superintendent of streets for a term of two years; annual salary $1,200. Section 2 attributes to the respective offices of all- of the above named officers all the powers and duties theretofore granted, assigned and imposed by the existing laws of the state, and ordinances of the city relating to the same, respectively.

Ordinances were adopted on August 8th, 1944, and September 5th, 1944, increasing the salaries of the subordinate -municipal officers, including the superintendent of streets, to be known hereafter as superintendent of public works, under authority conferred by R. S. 40:46-23; N. J. S. A. 40:46—23.

Eelator testified that he was in active charge of the Public Works Department, extending- to the operation and supervision of street maintenance, street cleaning and repairs, including the street department, ashes and garbage, sewers and drains, snow removal, public works building, incinerator, municipal building, and dog pound, with 125 men under his supervision and control; that twice a month he certified a payroll sheet of $8,000 or $9,000 and submitted it to the Board of Commissioners; that he requisitioned from the city purchasing agent all necessary supplies and materials, aggregating over $25,000 annually; that he regularly had under supervision twenty-five or thirty automobile trucks and automotive -equipment; that he supervised and arranged for emergency snow removal and engaged the necessary extra men and equipment, hiring and firing as occasion required; that he issued permits for street openings, sidewalk repair or openings, curbs, or storage of materials on streets; that he gave orders to an assistant superintendent of streets under him and the ten or more foremen of the department; and that he exclusively occupied an office bearing his name and title upon the door.

It seems to be clearly established that relator continuously performed certain permanent duties, not only indicated by the title given to the person occupying the place;'but assigned by regulations adopted under the law by an agency created by it and acting in pursuance of it. His duties were' substantially those prescribed by the general ordinance oi 1894 for the office created by charter and subsequently confirmed by the ordinance of December 8th, 1911, the only change being that of title—the office was the same in fact.

The Supreme Court in Salter v. Burk, 83 N. J. L. 152; 83 Atl. Rep. 973, 975, construing the Walsh Act, said:

“But the terms of the act disclose that it was not intended in any sense to be a charter or grant of municipal power, except in a most general way. The management of municipal affairs is entrusted to a Board of Commissioners, but it largely .leaves the mechanism of the city’s government and the provisions of the charter untouched. It does not alter general laws or charter provisions relating to the government of the city, except when inconsistent with its provisions. Its effect is to impose upon the Board of Commissioners the duty to fill existing offices made vacant by the adoption of the act and the organization of the Board, under the laws and ordinances then in existence.”

The office of superintendent of streets was created by the charter of 1873, a law of the state; it was recognized by R. S. 40:171-166, L. 1899, ch. 34; N. J. S. A. 40:171-166, authorizing the municipal body of second class cities to fix the term and annual salary of such officer; the duties were specifically assigned in the general ordinance adopted on December 4th, 1894, under authority of the charter, the power thus delegated by the state itself and exercised by an agency created under the law and acting in pursuance of it, having the force of law itself; neither the applicable provisions of the charter nor of the general ordinance were voided by reason of inconsistency with the provisions of the Walsh Act, rather the office and duties were both specifically recognized and reaffirmed by the ordinance of December 8th, 1911; the incumbent was assigned and continuously performed certain permanent public duties—the inescapable conclusion is that the superintendent of public works occupies an office which comes within the legal definition thereof, all of the elements having been factually established, and that the proceeding by quo warranto is, therefore, the proper one.

The illustration that most nearly fits the superintendent of public works; as dealt with in the reported cases, is that of superintendent of buildings, as reported in Townsend v. Boughner, 55 N. J. L. 380; 26 Atl. Rep. 808.

Notwithstanding a strong inference that relator was 'continued in office for long periods without appointment in an apparent effort to circumvent the law fixing a definite term, !he held, a valid legal title to the office and is entitled to projection of his enjoyment thereof. Accordingly, I find that the defendant has usurped, intruded into, and unlawfully holds and exercises the office of superintendent of public works, to the exclusion of said relator, and that said relator is the lawful incumbent of this office and entitled to judgment.