text:
    State Board of Tax Appeals.
    TOWNSHIP OF NEW PROVIDENCE, PETITIONER, v. LIONS CLUB OF PLAINFIELD, NEW JERSEY, AND BOY SCOUTS OF AMERICA, RESPONDENT.
    Decided January 21, 1941.

      For the petitioner, John L. Hughes (by Albert H. Bier man).

    For the respondent, Harvey Rothberg.

   Quinn, President.

This is an appeal by the township of New Providence from the action of the Union County Board of Taxation in canceling an assessment for 1939 taxes upon a tract of forty acres of land situated in that taxing district. Upon this tract are erected thirteen small cabins used primarily for camping purposes by various Boy Scout troops in the vicinity of Plainfield. The right to exemption from taxation of the land in question is posited upon the provisions of R. S. 54:4-3.6, which, after exempting “all buildings * * * used in the work of associations and corporations organized exclusively for the moral and mental improvement of men, women and children,” also exempts “the land whereon any of the buildings hereinbefore mentioned are erected, and which may be necessary for the fair enjoyment thereof, * * * and does not exceed five acres in extent.” We find it unnecessary to pass upon the petitioner’s contention that an exemption of more than five acres of the tract would result in a violation of the statute, since we find ourselves in agreement with the other contentions it makes, in attacking the exemption granted by the county board, as an entirety.

Counsel for respondents has failed to comply with his offer at the hearing to furnish us with copies of the title deeds to the property, but from the information contained in the briefs filed herein it would appear that in 1924 Harvey Both-berg and Helen Bothberg, his wife, conveyed the premises to the Lions Club of Plainfield, New Jersey, in trust for the use of the Boy Scouts of America. In 1931, an agreement was made between the parties to the deed more specifically designating the corporate entity, Boy Scouts, of America, as a “national corporation,” and detailing the charitable uses of the trust as intended for the benefit both of Boy Scouts and Girl Scouts in the vicinity of Plainfield. The closest approximation to a characterization of the condition of the title to this property, which is possible in the state of the scanty proofs before us, is that the Lions Club has legal title and the local boy and girl scout organizations of Plainfield, beneficial or equitable title.

The statute relied upon provides that, “the foregoing exemptions shall apply only where the association, corporation, or institution claiming the exemption owns the property in question and is incorporated or organized under the laws of this state and authorized to carry out the purposes on account of which the exemption is claimed.”

If we are to regard the Lions Club as the exemption claimant, its claim must fall, since that organization was not organized exclusively for the moral and mental improvement of men, women and children. It was so held in Plainfield Lions Club v. Township of New Providence, New Jersey Tax Reports 1912-1934, p. 453. If, on the other hand the Boy Scouts of America is the exemption claimant, the claim is fatally defective for the reason that the organization was incorporated, not under the laws of this state, as required by the statute, but under the statutes enacted by Congress for the formation of corporations in the District of Columbia. Prom this standpoint, furthermore, it is ground of objection that merely equitable, and not full legal title to the property is vested in the Boy Scouts, as is required for exemption to attach under the statute relied upon. Y. M. C. A. of Garfield v. State Board of Tax Appeals (Supreme Court, 1936), 14 N. J. Mis. R. 831; 186 Atl. Rep. 702; City of Trenton v. Trenton Masonic Temple Association (Supreme Court, 1930), 8 N. J. Mis. R. 778; 151 Atl. Rep. 753; affirmed (Court of Errors and Appeals, 1931), 108 N. J. L. 419; 158 Atl. Rep. 395.

For the reasons stated, no proper case for exemption of the land is shown. The judgment of the Union County Board will be reversed, and the assessment ordered restored as originally made.


source: Caselaw Access Project

author: Quinn, President.

license: Public Domain

text:
    State Board of Tax Appeals.
    THE SONS OF VETERANS BUILDING ASSOCIATION, PETITIONER, v. CITY OF PATERSON, RESPONDENT.
    Decided January 21, 1941.
    For the petitioner, William Q. Eronmeyer.

    For the respondent, Salvatore Viviano (by George Surosky and George Dimond).

   Quinn, President.

Petitioner is a corporation organized under the General Corporation act of 1875, for the stated purpose of dealing in real estate in divers respects. In 1890, it acquired title to premises 145 Broadway in the city of Paterson, upon which, as of the assessing date -for the year 1939, there was situated a four-story brick building containing meeting rooms and a public barber shop. The meeting rooms appear to be rented regularly and continuously, for meeting purposes, to various types of organizations.

It is claimed by petitioner that the property is beneficially owned by Hugh C. Irish Camp No. 8, New Jersey Division, Sons of Veterans, U. S. A., and that it is exempt from taxation under R. S. 54:4-3.25, exempting property used in the work and for the purposes of a bona fide national war veterans’ organization, or bona fide affiliated association. An application for exemption from taxation to the Passaic County Board of Taxation was denied, except for the personalty assessment of $500, which was canceled. No appeal as to the personalty was filed with this board.

Although there appears no doubt as to the status of the Hugh C. Irish Camp, &c., as within the category of organizations described in the statute (Ellsworth Camp No. 32, Sons of Union Veterans v. City of Union City, New Jersey Tax Reports, 1934-1939, p. 673, we are not satisfied that the organization holds the beneficial ownership of the property, or that the building can be said to be used in the work and for the purposes of the organization, in the sense intended by the act.

There is no proof of any trust relationship between petitioner and the camp as to the property, or any evidence that would warrant the conclusion that the former is a mere holding company of the property for the latter. It is only shown that the camp holds 1,628 shares of petitioner’s stock, out of a total of 2,753 shares outstanding. The remainder is owned by individual members of the camp and of its auxiliary. There is no showing of any restriction upon the right of free alienation of the shares held by individual stockholders. These facts do not show strict compliance, as is required in all cases of exemption claimants, with the statutory requisite of beneficial ownership by the veterans’ organization in question.

The permanent occupation for non-owner purposes of that portion of the property rented to the public barber shop, is an independently sufficient ground for denial of the exemption. It is true that we have held that the absence in the exemption statute of specific requirements that the property be exclusively devoted to the uses of the exemption claimant, or that it be free from use for pecuniary profit, will operate to confer the right of exemption even though the property is occasionally permitted to be used by other organizations, or devoted to commercial pursuits by the owner organization. Cranford v. Cranford Legion Holding Co., Inc., New Jersey Tax Reports, 1934-1939, p. 293; Ellsworth Camp No. 32, Sons of Union Veterans v. City of Union City, Id. 673; City of Asbury Park v. Harold Daley Post No. 1333, Id. 734. But in no ease has it been held that a war veterans’ organization might qualify for exemption, despite the permanent devotion of a part of its property to the uses of persons or entities other than itself. In the Cranford case, supra. President Weaver of this board adverted to the circumstance that “no portion of the building is permanently rented.”

Por the reasons stated, the application for exemption on realty is denied, and the judgment of the Passaic County Board is affirmed. ■


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ROBERT G. SOUTHARD, PETITIONER, v. MARGARET KLEINSMITH, RESPONDENT.
    Decided January 31, 1941.
    For the petitioner, Harold. 8. Olein.

    For the respondent, Morrison, Lloyd & Morrison (Sydney V. Sloldl, of counsel).
   *******

The vital question for determination is whether the petitioner at the time of the admitted accident was an employe of the respondent within the meaning and purview of the Workmen’s Compensation act; or an independent contractor.

It appears from the undisputed facts developed in the evidence that the petitioner sustained serious injuries consisting of a fracture of the left femur, fracture of the left radius, fracture of the left scaphoid hone, dislocation of the semi-lunar and cuneiform hones of the left wrist, rib injuries and nervous shock, as a result of an accident on August 7th, 1940, while engaged in repairing a roof of the respondent’s home at Ridgefield Park, New Jersey. From the medical testimony, I am satisfied that the limit of treatment has not jet been reached and for that reason the determination of the extent of permanent disability must be deferred until some future date.

Upon carefully considering the evidence in this case and upon making a thorough examination of the briefs submitted by counsel at the close of the trial, I have come to the conclusion that the. petitioner was not an independent contractor. In determining whether a person is an employe or an independent contractor, the most frequently cited test is that of control; he, being an employe, if he is subject to the control of the person for whom the work is done, and an independent contractor if he is not. The actual exercise of such control by the party for whom the work is being done, however, is not essential; it being sufficient so long as he has the right of such control. In the case at bar, I .am satisfied that such control was retained and exercised by the respondent. In 71 C. J. 449, it is stated: “In determining whether a workman is an employe or an independent contractor the act is to be given a liberal construction in his favor, and any doubt is to be resolved in favor, of his status as an employe rather than as an independent contractor.”

Accordingly having found, as a matter of law, that the petitioner was not an independent contractor, it necessarily follows that his status at the time of the accident was that of an employe. The decisive question is whether the employment was regular within the contemplation of the act, or casual. By the overwhelming weight of the evidence it appears that the petitioner was a casual employe. The recent case of Clausen v. Dinnebeil (Supreme Court), 125 N. J. L. 223; 15 Atl. Rep. 205, is controlling, to wit:

“Evidence that carpenter, who had worked for respondent on previous occasions and who did not have steady employment, was employed by respondent, who was engaged in'no business except looking after six houses which respondent owned and rented, to assist in repairing roof of house which was damaged by a storm, warranted conclusion that carpenter, who allegedly sustained injuries while repairing roof, was engaged in “casual employment” at time of. injury and was not an “employe” within Compensation act, and hence carpenter was not entitled to compensation; it being immaterial whether injury was received while carpenter was at work on a task connected with respondent’s business.”

The facts in the present case are practically on all fours with the Clausen ease. Forrester v. Eckerson, 107 N. J. L. 156; 151 Atl. Rep. 639, is also controlling, holding the employment of a painter engaged to paint one’s dwelling house to be casual employment. By express statutory enactment one engaged in casual employment is excluded from the benefits of the Workmen’s Compensation act. N. J. S. A. 34:15-36 defines an employe entitled to compensation as follows: “Employe is synonymous with servant and includes all natural pel-sons who perform service for another for financial consideration, exclusive of casual employments, which shall be defined, if in connection with the employers’ bxxsiness, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring.” Obviously the respondent, who owned or had some vested interest in the dwelling house in question, was not engaged in “business” within the meaning of the Workmen’s Compensation act—R. S. 1937, 34:15-36. Hence, in order to warrant a recovery in the present proceeding, it was incumbent upon the petitioner to show that his employment with the respondent was periodic and recurring. The proofs, however, fail to establish such fact; there is nothing in the evidence to justify an inference that should further repairs to the roof be necessary in the future that the petitioner would be engaged for such work without re-hire.

The petitioner having failed to establish his right to compensation, it is * * * ordered that the petition herein filed be and the same is hereby dismissed.

John J. Stahl, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    BARNEY BLEEKER, PETITIONER, v. JOHN KUYPER, RESPONDENT.
    Decided January 31, 1941.
    For the petitioner, Nathan Rabinowiiz.

    For the respondent, Francis X. Kenneally.

   This is a proceeding brought by Barney Bleeker, as petitioner, against John Kuyper, as respondent, to review a previous award of compensation under and by virtue of the terms and provisions of R. S. 1937, 34:15-1 et seq., “prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder.”

H* H* H* H* ❖ :J* $

The facts in this case are not in dispute and substantially are as follows: The petitioner, Barney Bleeker, was regularly employed by the respondent as a laborer receiving wages at the rate of $30 per week; that he met with an accident on July 23d, 1937, arising out of and in the course of his employment consisting of a wooden brace falling from an upper story and striking him on the head; and that the respondent had immediate knowledge of the mishap. On July 13th, 1939, the petitioner recovered an award of compensation against the respondent in the following amounts: Compensation for temporary disability nine weeks at $20 per week; compensation for permanent disability seventy-five weeks at $20 per week based upon a finding of fifteen per cent, of total disability.

The sole issue in the present proceeding is confined to the question as to whether there has been an increase in the extent of permanent disability since the last award.

It becomes necessary, therefore, to analyze the medical testimony and to determine whether the proofs establish an increase in the degree of plrysical impairment ascribable to the original accidental injuries. The respondent produced Drs. Joseph Koppel, Maurice Kleinman and Jack Blumberg, all of whom testified at the original trial and who expressed the opinion that there was no increase of disability a,t the present time and that the petitioner was not suffering from epilepsy in any form. On the other hand the petitioner produced Drs. Gerald Beigen, Mac W. Bergman and Alvin B. Córtese who testified that in their opinions the petitioner was suffering from traumatic epilepsy, the severity of which had gradually increased since the last trial; the present permanent disability ranging from 60 per cent, to 100 per cent, of the total. It is significant to note, however, that the sole medical expert who had previously examined the petitioner and who testified for him at the first trial and was, therefore, in a position to make a comparative estimate as to the extent of disability was Dr. Córtese. The other two physicians examined the petitioner for the first time shortly before the present trial and consequently were unable to contrast their present findings with the petitioner’s disability as it existed at the time of the first award.

Burthermore, it appears that during the course of the first trial it was contended by the petitioner that he was then suffering from epilepsy as a result of the accident; and that Dr. Córtese testified at the said trial in his behalf to the effect that the petitioner was suffering from a condition which he diagnosed as traumatic epilepsy. However, on behalf of the respondent there was an abundance of competent medical testimony to the contrary. The deputy commissioner, as the, sole trier of the facts, accepted the opinions of the respondent’s experts as the more credible and determined the issue with respect to the epilepsy claim adversely to the petitioner.

The present application for increased disability seems to be' grounded upon a claim of gradual retrogression of epilepsy, the yery condition which the deputy commissioner at the former trial ruled, as bearing no causal relation with the admitted accident.

The present case is governed by the doctrine enunciated in DeMarco v. F. H. McGraw Co. (Supreme Court), 13 N. J. Mis. R. 856; 181 Atl. Rep. 639, holding the proper procedure to be by appeal' and not by an application for increaed disability where a claimant is dissatisfied with the amount of the award obtained at the original trial before the bureau. In the DeMarco case, the court stated: “It may be that the bureau award in the first instance was too low, but if, upon the proofs, such were the case, the remedy was by appeal and not by petition for the recovery of increased compensation by reason of increased disability, which was not shown.”

The petitioner having failed to establish his right to compensation, * * * " ordered that the petition herein filed be and the same is hereby dismissed.

John J. Stahl, Deputy Commissioner.


text:
    State Board of Tax Appeals.
    CAMP NO. 62, PATRIOTIC ORDER OF AMERICANS, PETITIONER, v. CITY OF CAMDEN, RESPONDENT.
    Decided January 21, 1941.
    For the petitioner, Henry Miller.

    For the respondent, John J. Crean and William J. Shepp.

   Quinn, President.

A two-story dwelling, owned by the petitioner and situated in the city of Camden, was duly assessed for taxation by the local assessors for the year 1939. Petitioner claims right to exemption from taxation for this property as used in the work and for the purposes of a fraternal organization or lodge, within the contemplation of R. S. 54:4-3.26. An appeal for exemption to the Camden County Board of Taxation was dismissed.

Petitioner was incorporated in 1937 as an association not for pecuniary profit, and its purposes, as recited in its certificate of incorporation are:

“2. The purpose for which it is formed is to provide a funeral benefit fund for the members and such social privileges as may be had by associating with the members.”

The building in question contains three rooms on the first floor, exclusively used for petitioner’s purposes, and a living apartment on the second floor, used as the residence of the caretaker of the building and his family.

Within the proofs presented, petitioner is purely and simply a women’s social club, with the added inducement of funeral benefits provided out of dues paid in. There is no evidence whatsoever of any charitable, communal, or civic activities such as could have the effect of earning for petitioner’s property the characterization, “beneficial to the public generally.” Por reasons presently to be adduced, therefore, the uses of the’ building are not fraternal in the sense intended by the statute.

In City of Camden v. Camden County Board of Taxation (Supreme Court, 1938), 121 N. J. L. 262; 2 Atl. Rep. (2d) 40, the exempting statute, which was originally enacted as Pamph. L. 1936, ch. 46, was attacked by the city of Camden as unconstitutionally offensive, inter alia, to the provisions of article 4, section 7, paragraph 12, of the New Jersey Constitution, providing for the taxation of property under general laws and by uniform rules. It was contended that the exemption accorded by the act-was substantially based upon the criterion of the status of the owner of the property, rather than upon the uses to which it was put, constituting a constitutionally defective classification for exemption, under Tippett v. McGrath (Supreme Court, 1903), 70 N. J. L. 110; 56 Atl. Rep. 134; affirmed, 71 N. J. L. 338; 59 Atl. Rep. 1118. In accord: State v. Mercer County Board of Taxation (Supreme Court, 1937), 118 N. J. L. 408; 193 Atl. Rep. 555. The court found, however, that the property of the fraternal organization involved in the Camden case (Junior Order of United American Mechanics) was “used for purposes that are fraternal in character and substance, beneficial to the public generally,” (italics supplied), and that the act was constitutional as applied to the property before it. Affirmed, City of Camden v. Camden County Board of Tax Appeals (Court of Errors and Appeals, 1939), 122 N. J. L. 381; 5 Atl. Rep. (2d) 688. We consider that the courts which decided the Camden case found a constitutional construction of the statute, in obedience to the rule of statutory construction requiring that of two constructions to which an act is susceptible — one making it constitutional and the other rendering it void — the first should be accepted, for the reason that it must be inferred that the legislature intended to pass a constitutional act. State, ex rel. Fidelity Trust Co. v. Vogt (Supreme Court, 1901), 66 N. J. L. 86; 48 Atl. Rep. 580; Commercial Trust Company of New Jersey v. Hudson County Board of Taxation (Supreme Court, 1914), 86 N. J. L. 424; 92 Atl. Rep. 263. In the present case the unconstitutional construction would result in an exemption of all property employed in the uses of social clubs, or of beneficiary societies paying sick and death benefits in the manner of mutual insurance companies, for dues paid in, merely upon the adoption of a form of fraternal or lodge organization. The constitutional construction, adopted in the Camden case, requires a finding that the exemption claimant uses its property for purposes truly fraternal in the broad sense, i. e., “beneficial to the public generally.”

Applying the principles referred to, we have found that a “beneficiary association” or society, governed by R. S. 17:39-1 et seq., carried on exclusively for the mutual benefit of its members, who pay dues and assessments into a common fund, and in return receive sick, disability and death benefits at fixed rates, is not a fraternal organization or lodge intended for exemption from taxation under R. S. 54:4-3.26. Township of Lyndhurst v. Italian Benefit Society, Civility and Work, New Jersey Tax Reports, 1934-1939, p. 606. We distinguished such organizations from fraternal orders intended for exemption from taxation under under the statute, in this wise (at p. 609) :

“Fraternal orders, although occasionally providing plans for sick or death benefits, are typically giiasi-public, civic, and frequently charitable. Only in this light could the legislative exemption in favor of property used for their purposes be justified, within fixed rules of classification of property for exemption, and in consonance with the fundamental understanding that exemptions from taxation are extended as a quid pro quo for the performance of services essentially pub-lie and which the state is thereby relieved pro tanto from performing. Dwight School of Englewood v. State Board of Tax Appeals, 114 N. J. L. 594. Beneficiary societies are not essentially of the character indicated, and from this standpoint as well as those detailed above, cannot be understood as within the intended grant of exemption by the legislature.”

We have heretofore carefully examined the substance, rather than the form, of the plan of operation of fraternal orders seeking tax exemptions, for evidences of such undertying character as would justify for the property the description, “beneficial to the public generally.” See Acquackanonck Grange No. 183 v. City of Clifton, New Jersey Tax Reports, 1934-1939, pp. 659, 661; Newark Aerie 44, Fraternal Order of Eagles v. City of Newark, Id. 658, 659; Elk Realty Company of Nutley, New Jersey, v. Town of Nutley (State Board, 1940), 18 N. J. Mis. R. 691; 16 Atl. Rep. (2d) 202. Each case must be adjudged upon the peculiar facts presented therein.

The property here involved does not meet the test, beneficial to the public generally,” and the exemption sought must be denied, for the reasons stated. The action of the Camden County Board of Taxation in dismissing the appeal will be affirmed.


author: Parker, J.

text:
    PETER GRIMBILAS, PLAINTIFF-RESPONDENT, v. LYDIA N. STELLING ET AL., DEFENDANTS; LINFAIR, INC., DEFENDANT-APPELLANT.
    Decided September 28, 1940.
    Before Pabkee, J., sitting at chambers.
    For the appellant, Archibald F. Blingerland.

    For the respondent, B. Bayard Strell.

   Parker, J.

The record in this case is not before me, and such statements of fact as are contained herein are necessarily based on the statements or briefs of counsel.

The substantial question to be decided is, what does the law require or permit with respect to the amount of an appeal bond in a replevin case where the plaintiff did not take possession of the goods at the beginning of the suit or at any time thereafter, but recovered a judgment that he was entitled to the goods, and the defendant has appealed therefrom ?

The property itself consists of a lot of machinery, mostly old, used in the manufacturing of candy, as I understand the matter, and located on the premises of the defendant in one of the Oranges. I am informed by counsel that at the beginning of the suit, an affidavit fixing the value at $1,483 was filed as a preliminary to the proposed taking of the goods by the plaintiff. Whether a replevin bond was given at that time does not appear, and does not seem material. As a matter of fact, the plaintiff never took possession of the goods under the writ of replevin, but they remained in the possession of the defendant during the suit; later on, I am informed, the plaintiff became bankrupt and, consequently, the present claimant to the goods is the trustee in bankruptcy.

There was a trial in the Essex Circuit Court and verdict, and judgment went for the plaintiff. Then the defendant took an appeal to this court; and the question was, what the amount of the bond or cash deposit on appeal ought to be. This question came up before Judge William A. Smith, who did not try the case, and who, after hearing the parties, fixed the amount of the bond at $250. The plaintiff was not satisfied with that amount, claiming that it ought to be substantially for double the value of the goods; and during the vacation season, in the week of August 19th to 24th, made an application to Mr. Justice Case for a rule enlarging the amount of the bond. Mr. Justice Case denied the motion (15 Atl. Rep. (2d) 57) and afterwards, under date of September 3d, reconsidered the matter to a certain extent and held that while he was not at all clear that the law required in replevin cases an appeal bond, the amount of which should be based on the value of the goods, he would so assume for present purposes, but that there was no such proof of value as to enable him to fix the amount of the bond; so for a second time the motion was denied.

The matter was brought before me on September 14th and counsel were told that they might take depositions as to the value of the goods at the time of the appeal. This they have done, and the depositions are extremely contradictory, so that it is a matter of difficulty to fix any definite amount as to the actual value of the goods.

There is now either a bond for $250 or, if I recollect rightly, a deposit in cash of that amount was made in lieu of the bond.

There is nothing in the Replevin act and, with the exception presently to be noted, nothing in the statutes relating to appeals at common law which deals particularly with a judgment in replevin. R. S. 2:27-369 refers to a recognizance “in double the sum, adjudged to be recovered by such judgment * * *, and also to pay and satisfy, if such judgment be affirmed, all the debt or debts, damages and costs, adjudged on the former judgment,” &c.

R. S. 2:27-370 further provides as to the security, that in lieu of the recognizance in error, the trial court may permit a cash deposit to remain in court until the determination of the appeal.

However, in R. S. 2:27-371 we have a statutory provision that “The court of errors and appeals or the supreme court, or a justice of the supreme court, may, upon good cause and reasonable notice given, require in any case, in addition to the recognizance mentioned in section 2:27-369 of this title, such further security by recognizance to be given by appellant as may seem proper, which shall be taken in the manner prescribed for the giving and filing of the original recognizance.”

This section does not seem to contemplate a cash deposit in lieu of a recognizance.

Were it not for the last quoted statute, R. S. 2:27-371, I should feel obliged to say that there is no provision in the law requiring on appeal of a replevin case any security based on the value of the goods, and consequently that the security would only go to the costs of suit and interest thereon. But in view of the last quoted section, I rather incline to think that the Supreme Court, to which the appeal has been taken, is empowered as a matter of discretion to fix the amount of a recognizance to be given on that basis, and shall now proceed to do so.

As has already been said, the depositions are very contradictory, and the settling of the amount of the recognizance is to some extent a matter of guess work, but the best judgment that I can give to the matter is that there should be a recognizance in the amount of $500 in addition to the cash deposit already made; and such will be the order. No costs will be allowed.


author: Kinkead, S. C. C.

text:
    SAMUEL CRAIG COWART, ADMINISTRATOR WITH WILL AND CODICIL ANNEXED OF WYATT J. BASKERVILLE, DECEASED, PLAINTIFF, v. THE BOROUGH OF FREEHOLD, IN THE COUNTY OF MONMOUTH AND STATE OF NEW JERSEY (BODY CORPORATE), DEFENDANT.
    Decided February 11, 1941.
    For the motion, James J. Skeffington.

      Contra, Samuel Craig Cowart.

   Kinkead, S. C. C.

This is a motion to strike the complaint filed on behalf of the plaintiff. The complaint alleges that on August 22d, 1940, the testator of the plaintiff, Wyatt J. Baskerville, was employed in the street cleaning department of the borough of Freehold. His duties required the use of a team of horses attached to a truck, and while engaged in his work, the horses became frightened and running away ran over and killed the said Wyatt J. Baskerville.

Plaintiff further alleges that the defendant was negligent because on the day in question the decedent was performing not only his usual duties as a street cleaner, but was also required to substitute for another employe. The said other employe was regularly in charge of driving said team of horses. It is the contention of the plaintiff that the defendant by imposing the duty on the decedent of driving the said horses, in addition to his duties of cleaning the street, was guilty of negligence.

The defendant moves to strike the complaint on the ground that the plaintiff is limited in any recovery against the defendant by the provisions of the Workmen’s Compensation act (N. J. S. A. 34:15-1 to 34:15-120). The plaintiff contends, however, that as the legal representative of the decedent he is entitled to maintain an action for damages under the Death act.

If the decedent had merely been injured instead of losing his life in the said accident, he would clearly have been bound by the provisions of the Workmen’s Compensation act in seeking a recovery for his injuries. Gregutis v. Waclark Wire Works, 86 N. J. L. 610; 92 Atl. Rep. 354.

The following sections of the blew Jersey Statutes Annotated are pertinent:

“Sec. 34:15-1. When personal injury is caused to an employe by accident arising out of and in the course of his employment, of which the actual or lawfully imputed negligence of the employer is the natural and proximate cause, he shall receive compensation therefor from his employer, provided the employe was himself not willfully negligent at the time of receiving such injury, and the question of whether the employe was willfully negligent shall be one of fact to be submitted to the jury, subject to the usual superintending powers of a court to set aside a Verdict rendered contrary to the evidence.

"Sec. 31f :15-4. The provisions of this article shall apply to any claim for the death of an employe arising under sections 2:47-l to 2:47-6 of the title Administration of Civil and Criminal Justice.

“Sec. 34:15-7. When employer and employe shall by agreement, either express or implied, as hereinafter provided, accept the provisions of this article compensation for personal injuries to, or for the death of, such employe by accident arising out of and in the course of his employment shall be made by the employer without regard to the negligence of the employer, according to the schedule contained in sections 34:15-12 and 34:15-13 of this title in all cases except when the injury or death is intentionally self-inflicted, or when intoxication is the natural and proximate cause of injury, and the burden of the proof of such fact shall be upon the employer.

“Sec. 34:15-8. Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in this article, and shall bind the employe himself and for compensation for his death shall bind his personal representatives, his widow and next of kin, as well as the employer, and those conducting his business during bankruptcy or insolvency.

“Sec. 34:15-9. Every contract of hiring made subsequent to the fourth of July, one thousand nine hundred and eleven, shall be presumed to have been made with reference to the provisions of this article, and unless there be as a part of such contract an express statement in writing prior to any accident, either in the contract itself or by written notice from either party to the other, that the provisions of this article are not intended to apply, then it shall be presumed that the parties have accepted the provisions of this article and have agreed to be bound thereby.

“Every contract of hiring made or implied or in operation before the fourth day of July, one thousand nine hundred and eleven, shall be presumed to continue subject to the provisions of this article unless either party shall prior to accident, in writing, notify the other party to such contract that the provisions of this article are not intended to apply.”

In the instant case there was no allegation that the contract of hiring contained any express statement in writing that the provisions of the Workmen’s Compensation act was not intended to apply.

It has been held that where' a complaint sets up a contract of hiring between employer and employe made subsequent to the taking effect of the Workmen’s Compnsation act (Pamph. L. 1911, p. 134), which complaint does not aver that the 'contract contained any express statement in writing that paragraph 7 (section 2) of the act (now section 34:15-7, N. J. S. A.) was not intended to apply, nor that any written notice to that effect was given, it will be presumed that the parties accepted and were bound by the provisions of that section. Gregutis v. Waclark Wire Works, supra.

At page 614 of Gregutis v. Waclark Wire Works, supra, Mr. Justice Trenchard, speaking for our Court of Errors and Appeals, held as follows:

“By force of these provisions, therefore, the decedent, if he had suffered an injury not resulting in death, would have been limited to the recovery of the compensation provided for in section 2 and by the procedure and in the form provided in the Workmen’s Compensation act, and he could not have brought suit for his injury in disregard of that act. It follows, therefore, that the condition upon which a right of action is given to the personal representatives of a deceased person by the Death act is not present in the case at bar.

“Moreover, it will be observed that the Workmen’s Compensation act deals with cases where the injury results in death, and paragraph 8 provides that where the contract of hiring is subject to section 2 of the act, such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in section 2, and shall bind the employe himself, and for compensation for his death shall bind his personal representatives, his widow and next of kin.

“Obviously, the remedy thereby provided in ease of death, where the contract of the employe is subject to section 2, is inconsistent with the remedy provided by the Death act, because the latter provides for a different procedure and a different rule of damages. Since the Workmen’s Compensation act by its terms repeals all inconsistent legislation, the rights and remedies thereby given are substituted for those theretofore provided by the Death act.”

The motion to strike is granted.


author: Knight, C. P. J.

text:
    Monmouth County Court of Common Pleas.
    ALLEN W. BARTHELEMY, PETITIONER-APPELLANT, v. MACY BUILDING COMPANY, INC., RESPONDENT-APPELLEE.
    Decided January 31, 1941.
    Por the petitioner-appellant, Turnen & Turnen (David TL. Davis, of counsel).
    Por the respondent-appellee, McCarter & English (Verling C. Enteman, of counsel).
   Knight, C. P. J.

This is an appeal from a judgment of the New Jersey Workmen’s Compensation Bureau. The essential facts are as follows:

The petitioner-appellant, an employe of the respondentappellee, was, on August 5th, 1938, repairing a roof at 1004 Pourth avenue, Asbury Park. Said roof was constructed of asbestos shingles covered with fiintkote, and the job consisted of lifting shingles and filling in cracks with a tar compound. The temperature on the morning in question ranged from a minimum of seventy-five degrees to a maximum of ninety degrees. While he was so employed, at about eleven o’clock in the morning, the petitioner-appellant felt light-headed, stopped working and descended to the ground. After taking down the ladder used to reach the roof and gathering together his tools and equipment and placing them in his car, he was driven home. By the time the petitioner-appellant reached home, which was approximately two hours after descending from the roof, he had lost the use of his right arm and right leg.

The petitioner-appellant alleges that he suffered “a cerebral thrombosis induced by exposure to excessive heat and humidity resulting in a paralysis involving the entire left side; * * and counsel for petitioner-appellant argues that the cases of Ciocca v. National Sugar Refining Company of New Jersey, 124 N. J. L. 329; 12 Atl. Rep. (2d) 130, and Hentz v. Janssen Dairy Corp., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409, are dispositive of the issue in the case at bar.

In this court’s opinion, the facts in the Ciocca case and the instant case are distinguishable. In the Ciocca case it was conceded that the petitioner suffered heat prostration. There is no such concession in the instant case. Not only is there no such concession, but also, I am satisfied from the medical testimony that the petitioner-appellant did not suffer heat prostration.

In the case of Hentz v. Janssen Dairy Corp., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409, where the injury was similar to the injury in the case at bar, the petitioner suffered accidental strain induced by his employment which happened to be unusually" hard on the day of the injury.

The pertinent part of the petitioner-appellant’s testimony in this case, concerning his injury and the happening of the accident, is found in his response to the following question (page 6):

“Q. What happened at eleven o’clock? A. At eleven o’clock I felt like heated (light headed) and my stomach felt as though it was coming up, so I stopped work and reached around for the ladder, and I got the ladder, and I picked my can of tar up and my tools and I went down the ladder and got on the ground and I put my tools and the can of tar down and 1 was feeling worse, so I decided I had better take the ladder down.”

Obviously", while working, he became ill, but in analyzing the medical testimony as to the cause of his illness, it is my opinion that the cerebral thrombosis was due to an arteriosclerosis hypertension and a heart disease suffered by the petitioner-appellant prior to August 5th, 1938, rather than to his employment.

A careful analysis of all the testimony convinces me that the petitioner-appellant has failed to carry the burden of proof, that on the day in question he was exposed to excessive heat, or that he suffered heat prostration. Further he has failed to prove any accident whatsoever, arising out of and during the course of his employment which resulted in an injury.

The judgment of the deputy commissioner of the Workmen’s Compensation Bureau is affirmed, and an order may be submitted accordingly.


author: Collester, D. C. J.

text:
    Clifton District Court.
    B. C. S. CORPORATION, A CORPORATION, PLAINTIFF, v. LOTTIE FRICK AND THEODORE FRICK, T/A ERIE AUTO BODY CO., DEFENDANTS.
    Decided February 18, 1941.
    For the plaintiff, Charles Blume.

    For the deíendants-claimants, Nussman & Kaplan.

   Collester, D. C. J.

This is an action brought pursuant to the statute (R. S. 2:60-20) known as the Garage .Keepers’ Lien act. The pertinent facts are as follows:

On January 10th, 1940, one Jack Yellen, purchased a Pontiac automobile from the City Motor Sales, Inc., under a conditional sales contract wherein title to said motor vehicle was reserved in the seller until the purchase price was fully paid. Said contract was thereupon assigned by the conditional vendor to B. C. S. Corporation, a finance company.

On Ma}’ 5th, 1940, Yellen defaulted under the terms of the contract. Thereafter, on July 10th, 1940, while still in the possession of Yellen, the automobile was badly damaged as the result of an accident. Yellen placed said vehicle in the custody of Lottie Frick and Theodore Frick, trading as Erie Auto Body Co., garage keepers, and pursuant to his instructions, repairs were made for which said garage keepers charged the sum of $164.

On July 17th, 1940, the conditional vendor’s assignee demanded possession of said vehicle by reason of Yellen’s default under the contract, which was refused and accordingly a writ of replevin was issued. Pursuant to the provisions of the statute, the plaintiff finance company received possession of the automobile upon deposit of the sum of $174 with the court to await determination of the issues raised.

The statute (R. S. 2:60-21) which grants to a garage keeper a lien for repairs to a motor vehicle specifically provides:

“The lien shall not be superior to, nor affect a lien, title or interest of a person held by virtue of a prior conditional sale or a prior chattel mortgage properly recorded.”

It appearing that the B. C. S. Corporation is now the assignee of the conditional vendor named in a conditional sales contract executed and properly recorded prior to the existence of the garage keepers’ lien on said automobile, it is apparent that it is entitled to right to possession as set forth in the statute.

However, the garage keepers contend that they are entitled to their lien as a common law lienor alleging that as artisans they have a lien upon the vehicle for labor and materials furnished in the repair thereof. They aver that title 2:60-32-35 Revised Statutes of New Jersey provides for the enforcement of such a lien.

With this contention of the garage keepers, the court cannot agree. Motor vehicles and garage keepers were unknown at common law. The present Garage Keepers’ Lien act is in some respects declaratory of the common law right of lien by an artisan. Mr. Justice Kalisch speaking for the Court of Errors and Appeals in the case of Crucible Steel Co. v. Polack Tyre and Rubber Co., 92 N. J. L. 221 (at p. 227); 104 Atl. Rep. 324, with reference to the Garage Keepers’ Lien act, said:

“It extends this right of lien to other conditions in business life than those that existed in common law. Thus, for example, it gives the garage keeper a lien for the storing and maintaining of motor vehicles, a present popular means of conveyance unknown to the common law, and which has in a great measure supplanted the horse and wagon and revolutionized the mode of transportation; it gives a right of lien for furnishing gasoline, accessories or other supplies for motor vehicles, for which no right of lien could have properly existed at common law.”

It is therefore the opinion of this court that judgment must be entered as follows:

Judgment for possession of said motor Vehicle and damages for the wrongful detention thereof in the sum of thirty-five dollars ($35) in favor of the B. C. S. Corporation and against the defendants-claimants, Lottie Frick and Theodore Frick, trading as Erie Auto Body Co.


author: John C. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARIE B. MISALE, PETITIONER, v. SCHIFFENHAUS BROS., INC., NEW JERSEY MANUFACTURERS’ CASUALTY INSURANCE CO., RESPONDENT.
    Decided February 4, 1941.
    For the petitioner, Ohiaravalli & Fioravanti (David Ros-Jcein, of counsel).
    For the respondent, George E. Meredith (Walter W. Hubley, of counsel).
   *******

From the stipulation of counsel and the testimony adduced, I find and determine as follows:

That on April 26th, 1939, the petitioner, Marie B. Misale, a married woman of the age of twenty-nine years, was in the employ of the respondent as a machine operator and had been so employed for some short period of time prior thereto.

On that day, at about four-forty-five p. m., as she was feeding cardboard through an electric paper box machine, the front of her smock became caught or engaged in the lower gear drawing her toward the machine. She tried to free herself and stretched out her right hand to shut off the power and in so doing the top part of her smock came in contact with and was caught in the top gear. In her endeavors to free herself she fell forward against the machine striking her fight abdomen in the region of her appendix. While at the shop she felt nervous, shaky and suffered pains and cramps in her abdomen. Upon her arrival at home she retired to bed, but was unable to sleep well because of the persistence of the cramps in her abdomen.

The following morning she returned to work although she felt ill, but was unable to pursue her employment and at noon returned home. Her symptoms at that time were nausea, nervousness and she developed vaginal bleeding. (Her last menstrual period occurred on April 16th, 1940, and the flow had ended five days prior to the accident.) The following day the vaginal flow was more profuse and she felt so extremely weak that she was confined to her bed. She thereupon summoned Dr. Samuel Goldstein to her home for treatment. The petitioner during this period observed a hematoma and a discolored area on her right abdomen. Her physician then treated her with diathermy and medications until May 11th, 1939, when, by reason of her continued symtoms and failure to respond satisfactorily to treatment, she was admitted to the Newark "Beth Israel Hospital. Throughout this entire period her right abdomen continued painful to touch and the vaginal bleeding persisted.

An examination, on her admission to the Newark Beth Israel Hospital on May 11th, 1939, disclosed “tenderness over the right lower quadrant, especially over McBurney’s point.” On surgical consultation with Dr. Danzis, it was found that the petitioner was bleeding moderately from the uterus; that there was tenderness in the right iliac fossa, and a surgical operation was indicated if the bleeding did not stop.

The vaginal bleeding persisted and her doctor elicited tenderness on the right side of the abdomen. An operation was performed by Dr. Goldstein in the presence of Dr. Danzis on May 13th, 1939, during which he found that the left ovary was cystic. The cystic left ovary was found to be ruptured and was removed. At the same time the surgeon removed her appendix which he described as chronic, and two-thirds of the right ovary which was very cystic.

Following the discharge of the petitioner on May 29th, 1939, from the hospital, Dr. Goldstein continued to treat her; her symptoms of pain in the lower right abdomen persisted and about June 5th, 1939, her vaginal bleeding recurred. In addition, the petitioner continued to grow weak and her physician prescribed hot baths, medications, diathermy and injections in an attempt to relieve the symptoms. They were unsuccessful and the patient was readmitted to the Newark Beth Israel Hospital on August 28th, 1939. On that admission the tenderness over the right lower quadrant of her abdomen was still present, and the remaining portion of the right ovary was removed. Subsequent to the second operation the petitioner continued under the treatment of Dr. Goldstein up to the present date. She has developed symptoms of nervousness, headaches, hot flashes, and the classic symptoms of an artificial menopause from which she is now suffering and for which she is still receiving treatment.

There also testified Dr. Melvin Lustig and Dr. Marvin Oransky, internes at the Newark Ijleth Israel Hospital, and Dr. John Huberman, D?. Koppel and Dr. Christopher O. Beling, endocrinologists and neurologists who had occasion to examine the petitioner and testify in her behalf.

On behalf of the respondent there appeared and testified Dr. M. Danzis, a surgeon, Dr. L. H. Loeser, a neurologist, and Dr. Norton, an endocrinologist.

After carefully considering the testimony adduced, I feel that the testimony and opinion of Dr. Goldstein as to the effect of the industrial accident, on the petitioner, warrants acceptance. I find that the accident caused a rupture of the left ovary and that the petitioner in addition suffered a traumatic neurosis as a result thereof. I further find that the removal of the right ov ary, its sequalse, and the ensuing artificial menopause, are not related to the accident in question in any way.

The testimony of this physician was of particular interest and importance to the court. Dr. Goldstein was the attending physician of the petitioner, having been consulted by her of her own volition. While his treatment was later authorized by the respondent he, nevertheless, was called and appeared as a witness for the petitioner. His testimony to the effect that it was his opinion that the injury was to the one ovary and that the removal of this ovary was the result of the injury, appears the reasonable and proper situation in this case. His testimony relative to the removal of the other ovary also impressed this court. It was this doctor’s opinion that the injury played no part in the removal of the right ovary but that inasmuch as this ovary was found to be cystic its removal was done as a medical measure and was in no way associated with the accident in this case.

The court was also impressed with the testimony of Dr. Danzig. This physician was called into the case by the petitioner’s treating physician, Dr. Goldstein. His testimony was in accordance with that of the testimony of Dr. Goldstein.

% if: # :1: %

I further find the permanent disability attributable to said accident, which I feel consists of the removal of the left ovary and a traumatic neurosis as its sequahs, amounts to twenty-five per cent, of partial permanent total disability. ❖ ❖ ❖

I further find that the condition of the right ovary, and the removal thereof, was in nowise the result of the accident in this case and that the disability chargeable to the respondent should be confined to the removal of the left ovary and any condition attributable thereto alone.

% sfc

John C. Wegner, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN VERDEROSA, PETITIONER, v. COLONIAL LIFE INSURANCE COMPANY AND AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, RESPONDENT.
    Decided February 6, 1941.

      For the petitioner, Harry Cohn (David Roslcein, of counsel).
    For the respondent, Clarence B. Tippett.

   *******

From the testimony adduced, and the stipulations entered into, I find and determine that heretofore the petitioner, John Verderosa, suffered a compensable accident on February 21st, 1927, which arose out of and in the course of his employment with the respondent, when he fell down a flight of stairs after making a call upon one of the policy holders of the respondent. The injuries suffered in this accident aggravated a dormant arthritic condition and produced and resulted in symptoms and disability which was progressive in nature, and eventually became total in character. A claim petition for compensation for the disability resulting from said accident was filed with the Workmen’s Compensation Bureau pursuant to the statute, on October 26th, 1935, to which an answer was filed by the respondent and a hearing thereon was had before Deputy Commissioner Stephen J. Lorenz, who on June 7th, 1939, adjudicated and determined, inter alia, that the petitioner had suffered, as a result of the aforesaid compensable accident, a disability, temporary in character, from July 1st, 1927, to September 21st, 1927, or a period of fourteen and two-sevenths weeks, and permanent disability to the extent of 100 per cent, of total, for which the petitioner was allowed compensation for 400 weeks from September 21st, 1927, to May 2d, 1935. It further appears that an appeal was taken to the Essex County Court of Common Pleas by the respondents from the aforesaid judgment and determination of the Workmen’s Compensation Bureau and the judgment of the bureau was affirmed in an order and rule for judgment entered by Judge Dallas Flannagan on December 2d, 1939. The said judgment determined that due to the progressive nature of the petitioner’s condition, his' disability was total in character and permanent in quality prior to June 7th, 1939, and further provided that at the termination of the 400 week period of compensation for permanent disability therein awarded, the petitioner be subject to the further benefits provided for by the statute B. 8. 34:15-12b.

It appears that the petitioner has, in accordance with the requirements of the aforesaid statute, submitted himself to the Rehabilitation Commission of Labor and Director of Rehabilitation on May 15th, 1940, for examination and for such physical or educational rehabilitation as the said commission may have ordered, and it further appears that after medical examinations and other investigations made by the Rehabilitation Commission it was, on September 19th, 1940, certified by said commission that the petitioner was totally and permanent disabled and not a fit subject for physical or educational rehabilitation, and that because of his total and permanent disability, it is impossible for him to obtain wages or earnings equal to those earned at the time of the accident, or any wages or earnings whatsoever.

There was introduced in evidence at the hearing, the report of the New Jersey Rehabilitation Commission, dated September 19th, 1940. There was also adduced the testimony of the petitioner, as well as that of Dr. Aaron Haskin, his attending physician, and Dr. Max Kummel, an orthopedist. From a consideration of the testimony and evidence adduced, it appears that the petitioner, as the result of the compensable accident of February 21st, 1927, suffered an aggravation of a generalized arthritis and a psychoneurosis superimposed thereon and that the conditions are progressive in character.

The medical testimony indicates that the petitioner became totally disabled on November 16th, 1936, by reason of the aforesaid compensable accident. Having considered the medical testimony adduced and the other evidence before me, a question exists in my mind as to whether the petitioner would have been found to be totally and permanently disabled, had an award been made prior to November 16th, 1936. Accordingly, I find and determine that the petitioner, by reason of the aforesaid compensable accident, became totally and permanently disabled on November 16th, 1936.

I further find and determine that the petitioner, having been paid compensation for a period of 400 weeks, in accordance with the award and judgment of the Workmen’s Compensation Bureau, and having submitted himself to the Behabilitation Commission for examination and for such physical or educational rehabilitation as said commission might order, and the said commission having certified on September 19th, 1940, that the petitioner was totally and permanent!}'' disabled and it appearing to my satisfaction that by reason of his total and permanent disability, it is impossible for him to obtain any wages or earnings, is accordingly entitled to the benefits of the terms and provisions of the statute, R. 8. 34:15-12b, and that he is entitled to receive further weekly payments of compensation. Inasmuch as the 400 weeks of compensation heretofore paid, ended on May 2d, 1935, and by reason of the determination which I have reached, as hereinabove indicated, that the petitioner became totally and permanently disabled on November 16th, 1936, I find that the further weekly payments of compensation to which the petitioner is entitled, shall commence and continue from November 16th, 1936, and until the further order of this court.

It is therefore, on this 16th day of February, 1941, ordered, that the respondent make further weekly payments of compensation to the petitioner at the rate of $16.67 per week from November 16th, 1936, to the date of the signing of this order, or a period of 217 2/7ths weeks, in the amount of $3,622.15, which sum shall be paid by the respondent upon the entry of this order; and it is further

Ordered, that the respondent continue to make weekly payments of compensation in the amount of $16.67 per week commencing with the date of this order until the further order of this court, and it is further

Ordered, that the respondent reserve the right to make application to this court for a modification of this order pursuant to the statute in such case made and provided.

❖ ❖ . ❖ ❖ #

John C. Wegner, Deputy Commissioner.


text:
    State Board of Tax Appeals.
    ELIZABETH MACPHERSON, ADMINISTRATRIX CUM TESTAMENTO ANNEXO OF ESTATE OF GENEVIEVE CLARK BERWICK, DECEASED, PETITIONER, v. CITY OF JERSEY CITY, RESPONDENT.
    Decided February 4, 1941.
    Por the petitioner, Louis Scherzer.

    Por the respondent, Frank P. McCarthy.

   Quinn, President.

The petitioner’s testatrix died a resident of the city of Jersey City, and her personal estate was therefore subject to personal property taxation in that taxing district. R. S. 54:4-10. Por the year 1938 the city made an assessment for such taxes in the sum of $15,000. The Hudson County Board of Taxation affirmed the levy on appeal, and petitioner now prays before this board for a cancellation of the assessment on the ground that the estate consists entirely of cash in bank, exempt from taxation under R. S. 54:4-3.23. It does not appear, however, that the taxpayer filed the statutory sworn claim for exemption with the assessors, as required by R. S. 54:4-15. This was an indispensable prerequisite, Public Service Corporation of New Jersey v. City of Newark, New Jersey Tax Reports, 1934-939, p. 269, and in default thereof, the exemption is disallowed.

As the assets exceed the amount of the assessment, as of the assessing date, the judgment of the Hudson County Board is affirmed.


text:
    State Board of Tax Appeals.
    BOROUGH OF GLEN RIDGE, PETITIONER, v. CITY OF EAST ORANGE, RESPONDENT.
    Decided February 18, 1941.
    Eor the petitioner, James P. Mylod.

    Eor the respondent, Walter G. Ellis.

   Quinn, President.

The petitioner taxing district assessed for local taxes, for the year 1939, a parcel of vacant land owned by the city of East Orange, but put to no use by it as of the assessing date. This is an appeal from a judgment of the Essex County Board of Taxation, canceling the assessment. That ruling must be affirmed. There is in effect no statute under which the property of taxing districts is taxable.

It was held in Trustees v. Trenton, 30 N. J. Eq. 668, that general statutes prescribing what property should be taxable, such as R. S. 54:4-1, to the effect that “all property, real and personal, within the jurisdiction of this state not expressly exempted from taxation or expressly excluded from the operation of this chapter, shall be subject to taxation annually, &c.,” would not be construed as applicable to the property of the state or its political subdivisions. No other statute is in existence specifically subjecting the property of taxing districts to local taxation.

Respondent contends that an inference of taxability as to property not situated within the owner taxing district and used by it for public purposes, is to be drawn from R. S. 54:4-3.3, which inter alia, provides that the property of taxing districts, “when located therein and used for public purposes,” shall be exempt from taxation. But identical predecessor statutes have been held unconstitutional in Essex County Park Commission v. West Orange (Court of Errors and Appeals, 1909), 77 N. J. L. 575; 73 Atl. Rep. 511, and Jersey City v. Blum, 101 N. J. L. 93; 127 Atl. Rep. 214, and in such circumstances, we do not hesitate to recognize the patent un constitutionality of the present act. Board of Education of the City of Woodbury v. Township of West Deptford, New Jersey Tax Reports, 1934-1939, p. 598.

Bor the reasons stated, the assessment was without legal basis and the judgment of the Essex County Board is affirmed.


text:
    State Board of Tax Appeals.
    TOWN OF MORRISTOWN, PETITIONER, v. TOWNSHIP OF MENDHAM, RESPONDENT.
    Decided February 18, 1941.
    .Bor the petitioner, Nathaniel C. Toms.

    Bor the respondent, no appearance.
   Quinn, President.

Respondent taxing district levied an assessment for taxes for the year 1939, upon certain small buildings, owned by the town of Morristown, and situated at the water reservoir dam in that township. The structures are used in connection with the water property. The Morris County Board of Taxation dismissed an appeal from the assessment.

Under Pamph. L. 1910, p. 199 (R. S. 54:4-3.3) municipal lands used for public water purposes are taxable where situate, but improvements used for such purposes are exempt. Jersey City v. Blum (Court of Errors and Appeals, 1925), 101 N. J. L. 93; 127 Atl. Rep. 214. The assessment here involved was therefore improper and should be canceled.

Judgment accordingly.


author: Grosman, A. M.

text:
    Marguerite Boyce, complainant, v. Harrison H. Boyce, Jacqueline H. Boyce and White Laboratories, Inc., a New Jersey corporation, defendants.
    [Decided September 30th, 1940.]

      Mr. Herman Dultz, for the motion.

      Messrs. Lum, Tamblyn .& Fairlie (by Mrs. Eleanor Lowenstein Zoob), contra.

   Grosman, A. M.

This is an application by the complainant, under R. S. 2:29-46 for an order to strike out the answer filed by the defendant Harrison H. Boyce to the complainant’s first cause of action, as amended, on the ground that said answer is frivolous and fails to disclose a sufficient defense. The only objection offered to the motion is a challenge to the jurisdiction of this court over the subject-matter of the suit.

The defendant Harrison H. Boyce was originally represented in this litigation by Messrs. Proctor & Nary, of Asbury Park’. After process was served upon said defendant Harrison H. Boyce, his then proctors moved, among other things, “to dismiss the bill of complaint because it fails to set forth equitable grounds and for the further .reason that this court lacks jurisdiction in the premises.” This motion was duly argued and denied by order entered herein the 11th day of October, 1939. On November 21st, 1939, by consent of Messrs.' Proctor & Nary, said defendant’s present solicitors, Messrs. Lum, Tamblyn & Pairlie, were substituted in their place and stead. On the same date, this defendant’s present solicitors again moved to strike out and dismiss the bill of complaint and “all three causes contained therein,” on the following grounds:

“1. The complaint and the alleged three causes of action therein set out, set up no matter of equitable cognizance.

“2. This honorable court lacks jurisdiction to grant the relief prayed for against these defendants in the bill of complaint and the alleged three causes of action therein set out.

“3. The complainant has an adequate remedy at law.

•“4. The three alleged causes of action set forth in the complaint refer to a foreign decree for alimony not reduced to a domestic judgment.

■ “5. The complaint and the three alleged causes of action therein set forth are without equity.

“6. The complaint and the alleged three causes of action therein set forth do not state a cause of action against these defendants.

“7. The complainant is not entitled to the relief prayed for as to any of the alleged three causes of action set forth in the complaint.

“8. The complaint and the alleged three causes of action therein set forth do not allege facts which entitle the complainant to any relief in this court.”

This motion was denied because it was similar in all respects to that theretofore made by this defendant’s original solicitors and consequently the subject-matter was res adjudicada.

On the present motion, said defendant again raises the issue of jurisdiction. Upon the denial of a motion of this sort, the defendant is squarely before the court and within its jurisdiction for all purposes of the suit. He may not again raise the same issue before this tribunal. Particularly is this so, where, after the denial of his motion, he answers to the merits. The fact that in his answer he reserves the right to again move for a dismissal of the bill, on final hearing, upon the same grounds, is of no legal effect, unless, of course, the court is wholly without jurisdiction over the person of the defendant or the subject-matter of the suit, in which event the proceedings would be wholly lacking in legal effect. I do not conceive such to bo the instant case. Polhemus v. Holland Trust Co. (Court of Errors and Appeals), 61 N. J. Eq. 654; 47 Atl. Rep. 417. On a plea of this nature, all of the facts contained in the bill of complaint are admitted for the purpose of the motion. Baum v. Canter (Court of Errors and Appeals), 104 N. J. Eq. 224; 144 Atl. Rep. 588. It will therefore be observed that thrice this defendant has admitted all of the allegations of the bill of complaint to be true, but contended that notwithstanding, they fail to constitute an equitable cause of action and that this court has no jurisdiction over the subject-matter.

The admitted facts as disclosed by the bill of complaint are these: On May 12th, 1903, the defendant Harrison II. Boyce married the complainant in the city of New York. One child was born of the union. On the 21st day of June, 1922, this complainant, upon proceedings duly had in the New York Supreme Court obtained a decree of divorce from said defendant on the ground of adultery, committed with one Haney Hawthorne, whom he subsequently married. The decree allowed complainant the sum of $2,000 per month for her support and maintenance and that of her son. Said decree remains in full force and effect. Personal service was obtained upon the defendant, who was then a citizen and resident of the State of New York. Said defendant made said monthly alimony payments of $2,000 each until June, 1930, when, without legal warrant, he attempted to reduce said allowance to $1,500 per month. Thereupon proceedings were initiated in the New York Supreme Court to sequester his property. The matter was amicably settled between the parties by- said complainant agreeing to accept alimony at the rate of $1,000 per month, commencing March 1st, 1931, for her sole support, her son, in the meantime, having arrived at maturity.

About this time the defendant became involved in marital difficulties with his second wife. He was made the defendant in a suit for alienation of affections by one John J. Athana, his brother-in-law, who sought to recover $1,000,000, allegedly for the reason that said defendant was then living with the wife of said John J. Athana. This action was settled out of court. Mrs. Jacqueline H. Athana, the wife of John J. Athana, is the sister of said defendant’s second wife and is one of the defendants herein, she now being known as Mrs. Jacqueline Hawthorne Athana Boyce. As a result of said defendant’s doings with his then sister-in-law, Jacqueline Hawthorne Athana, the defendant’s second wife obtained a divorce from bed and board from him in the New York Supreme Court about the month of October, 1931, on the ground of adultery. The decree awarded her, directed the defendant to pay his second wife alimony at the rate of $1,000 per month. Thereafter, Mrs. Jacqueline Hawthorne Athana, the co-respondent in said defendant’s second divorce suit, obtained a divorce from her husband in Mexico and went to live with the defendant Harrison H. Boyce in New York City, and has been living with him ever since. Complainant charges that she is unaware whether or not said, defendant and his erstwhile paramoor, Jacqueline Hawthorne Athana, were ever married.

About April 12th, 1932, this defendant applied to the New York Supreme Court for an order dispensing with further payments of alimony to the complainant herein for a period of two years. The matter was referred to the Honorable Henry G. Wenzel, one of the referees of the New York Supreme Court, who after hearing testimony and rather facetiously observing that “of all expensive hobbies, the collection of wives is the most expensive,” denied the defendant’s application.

Thereafter, on or about the 31st day of March, 1933, the defendant Harrison H. Boyce absconded from the State of Yew York and secreted himself in places unknown to the complainant. From then on the complainant was unaware of said defendant’s whereabouts until shortly prior to the institution of this suit, when she learned that he was living with his former paramoor, now allegedly his wife, at Alienhurst, Yew Jersey, whereupon this suit was initiated by writ of ne exeat and restraint against alienation of assets. From March, 1933, to date, no money was paid by said defendant to the complainant on account of her alimony and on the filing of the bill in this cause, there was due and owing to her under said Yew York decree and judgment, the sum of $78,000, representing arrears of alimony for a period of seventy-eight months.

At the time that complainant consented to a reduction of her alimony by the Yew York Supreme Court, from $2,000 per month to $1,000 per month, namely, on or about the 27th day of February, 1931, as before mentioned, this defendant pledged as collateral security for the performance of said Yew York decree, as modified, 1,650 shares of stock of the Leander Development Corporation, of which he was the sole stockholder. The assets of this company amounted to hundreds of thousand of dollars. Amongst them was 750 shares of stock of a corporation known as the Health Products Company, a Yew Jersey corporation. This stock for years had been paying dividends at the rate of $12,000 per annum and was reasonably worth the sum of $200,000. The name of the Health Products Company was subsequently changed to that of White Laboratories, Inc. By a series of devious and tortuous transfers, said stock was conveyed voluntarily and without consideration, by the Leander Development Corporation, to Mrs. Jacqueline Hawthorne Athana Boyce, the defendant’s alleged present wife, who herself is a defendant herein. The defendant Harrison H. Boyce was able to aceomplish this transfer apparently because while he had consented to a transfer of 1,650 shares of stock of the Leander Development Corporation, to a trustee, as collateral security for the performance of said New York alimony decree, nevertheless, he apparently retained control over the affairs of the company, by reason whereof he was able to siphon out of the Leander Development Corporation, all of its assets. Therefore, when the complainant herein sought to forfeit the stock collateral which said defendant had deposited with her trustee as security for the payment of alimony, she found that said Leander Development Corporation was nothing but an empty shell, having been stripped of all its assets by the defendant Harrison H. Boyce.

In this posture of affairs, the complainant filed a bill of complaint, containing three counts, in this court. The first count with which we are presently concerned, sets up the decree of divorce in New York against the defendant Harrison H. Boyce; the allowance of alimony thereunder; proper jurisdiction of said defendant, who was personally served within the jurisdiction of the New York Supreme Court; and that there is due and owing to the complainant from said defendant, under said decree and subsequent judgment, the sum of $78,000. Since the filing of the bill, the complainant, because of the peculiar nature of alimony decrees, caused to be entered in the New York Supreme Court, on the 1st day of December, 1939, a final judgment in favor of the complainant and against the defendant Harrison H. Boyce, in the sum of $78,000, for which sum said court directed That this complainant have execution. By stipulation, the bill was amended to include this fact.

The second count prays that the decree of divorce obtained by the complainant in the New York Supreme Court be given full faith and credit, confirmed by the decree of this court and that alimony in futuro be allowed her in accordance with her needs, the defendant’s faculties and the practice of this court.

The third count is one for discovery, praying that the transfer of the 750 shares of stock now held by the defendant Jacqueline Hawthorne Athana Boyce be decreed fraudulent'; that the defendant Harrison II. Boyce be decreed to be the true, equitable and legal owner of said stock and that the complainant may have her claim satisfied therefrom. It is represented that said defendant Harrison H. Boyce is penniless and judgment proof.

The gravamen of the defendant’s objection to the first count of the complaint is that it seeks merely a money decree, namely, the sum of $78,000 due and owing to the complainant from the defendant under the judgment of the New York Supreme Court, which relief may be had only in the law courts. If this was the only relief sought by the complainant, there might be some merit to his contention, not because this court lacks jurisdiction over an action of this nature, but because, as a matter of policy, expediency and precedent, suits of this kind are usually left to the law courts. Dawson v. Leschziner, 72 N. J. Eq. 1; 65 Atl. Rep. 449.

The right, however, of this court to adjudicate questions “ordinarily determinable at law, arising in a suit of which this court has jurisdiction” cannot bo successfully challenged. See opinion of Court of Errors and Appeals in Hart v. Leonard, 42 N. J. Eq. 416; 7 Atl. Rep. 865; also Lidgerwood Estates, Inc., v. Public Service, &c., Co., 113 N. J. Eq. 403; 167 Atl. Rep. 197; Falaneau v. Reliance Steel Foundry Co., 74 N. J. Eq. 325; 69 Atl. Rep. 1098.

By "The Chancery act (1,915),” R. S. 2:29-10, jurisdiction is expressly conferred upon this court to adjudicate questions ordinarily determinable at law. The statute is to this effect:

“Determination of Questions of Law. Any question, ordinarily determinable at law, arising in a suit of which the Court of Chancery has jurisdiction, other than a question requiring a jury trial or a determination upon certiorari, mandamus or quo warranto, shall be determined by the Court of Chancery in that suit; or the Chancellor may, in his discretion, send such question to the Supreme Court for its opinion to be certified, retaining jurisdiction of the cause as provided by section 2:29-9 of this title.”

See opinion of Fielder, V. C., construing this statute in Commercial Trust Co. v. Bellhall Co. (Court of Errors and Appeals), 119 N. J. Eq. 30; 181 Atl. Rep. 63.

In the instant case, the relief sought by the first cause of action is ancillary to that prayed for in the second and third counts of the complaint, namely, alimony in futuro and the setting aside of the defendant’s alleged fraudulent transfer of assets. The right of this court to entertain the complainant’s second cause of action is presently beyond doubt. In Hughes v. Hughes, 125 N. J. Eq. 47; 4 Atl. Rep. (2d) 288, the Court of Errors and Appeals held that this court was without jurisdiction to entertain a bill for alimony in futuro under a foreign decree; and the complainant’s only remedy was by suit at law for accrued alimony. Following this decision, jurisdiction over actions of this nature was expressly conferred upon this court by legislative enactment, R. S. 2:50-35:

“Decrees of Other States or Countries; Full Faith and Credit; Exceptions. Eull faith and credit shall be given in all Courts of this State to a decree of annulment of marriage or divorce by a Court of competent jurisdiction in another State of the United States when jurisdiction of such Court was obtained in the manner and in substantial conformity with the conditions prescribed in Sections 2:50-9, 2:50-10 and 2:50-11 of this title. Nothing herein contained shall be construed to limit the power of any Court to give such effect to a decree of annulment or divorce by a Court of a foreign country as may be justified by the rules of international comity; provided, that if any inhabitant of this State shall go- into another State or Country in order to obtain a decree of divorce for a cause which occurred while the parties resided in this State, or for a cause which is not ground for divorce under the laws of this State, a decree so obtained shall be of no force or effect in this State.”

See, also, opinion of Herr, A. M., in Levy v. Levy, 17 N. J. Mis. R. 324; 9 Atl. Rep. (2d) 779.

The purpose of the enactment will be found in the 1938 Cumulative Supplement to the Revised Statutes, page 369.

The statute was clearly intended to cover situations such as that presented in the instant case. Otherwise, New Jersey might well become a haven for men who see fit to abandon their former wives and their minor children, in some other state of the Union, where they may be living in the direct poverty, while their natural and legal guardian may be residing in this state in the most sumptuous luxury, denying their families even the bare necessities of life. Suit at law is not the remedy for such abandoned dependents. It would require continuous and expensive litigation for a wife holding a foreign alimony decree to sue her husband periodically as her alimony becomes due. Usually the allowances made for this purpose are extremely modest. In most instances the cost of legal services would exhaust them. Such a spectacle would not only shock the conscience but would be contrary to the public policy of any civilized state.

This defendant admits the validity of the New York judgment against him. At the time of its rendition, he was a resident and citizen of the State of New York. He was personally served with process within its jurisdiction. He appeared and defended the suit. He concedes the sum of $78,000 is due thereunder. His answer presents no legal or factual issue. The only objection he raises is that he is entitled to have the New York judgment confirmed in the law courts and not in this. His objection is captious and constitutes nothing more than a vexacious attempt to delay the complainant in quest of her rights. Assuming, for the sake of argument, that I were to grant the defendant’s motion for a dismissal of this count, or as provided by law, I were to transfer this action to the law courts for disposition, according to their practice, what then would be the result under the admitted facts of this case? The complainant would file her complaint. The defendant would be required to admit that said judgment was rendered against him by a court of competent jurisdiction upon due process served upon him personally and that he is indebted to the complainant in the sum of $78,000. Thereupon the law court would promptly" enter a judgment for the complainant and against the defendant for the amount due. Complainant would then be required to come back into this court and litigate her third cause of action for discovery, &c., in an attempt to satisfy her judgment at law. All of which would be a needless and senseless waste of time and effort; and would accomplish nothing but unwarranted delay. Equity has complete jurisdiction to enforce a legal right, the existence of which is clear and not in substantial dispute. Redrow v. Sparks, 75 N. J. Eq. 396 (at p. 398); 72 Atl. Rep. 442; Robins v. Robins, 103 N. J. Eq. 26; 142 Atl. Rep. 168; Gasteiger v. Gasteiger, 5 N. J. Mis. R. 315, 136 Atl. Rep. 497.

The redress prayed for in the third cause of action is a proper concomitant for the relief sought in the second cause of action. Irrespective of whether or not the complainant is a creditor of this defendant Harrison H. Boyce in a legal sense,'she is entitled to maintain her third cause of action to discover and establish said defendant’s true faculties and the value of his estate to the end that complainant’s alimony may be fixed upon a proper basis, in accordance with her station in life and the defendant’s means. See opinion of Van Winkle, A. M., in Clark v. Clark, 13 N. J. Mis. R. 49; 176 Atl. Rep. 81; also Grobart v. Grobart (Court of Errors and Appeals), 119 N. J. Eq. 565; 182 Atl. Rep. 630. This court having taken jurisdiction for one purpose will assume same for all purposes to the end that complete justice may be done expeditiously. Bullock v. Adams' Executors, 20 N. J. Eq. 367 (at p. 374).

The speedy and expeditious administration of justice is at all times a judicial objective. This is particularly true in cases of This nature, where an aggrieved wife seeks to compel her former husband, whose moral and legal guilt has been, established by judicial decree, to maintain and support her and, at times, infant children. What women usually seek to recover in actions of this nature is “bread money” and such suitors are entitled to every aid that this court may give them to compel recalcitrant defendants to speedily supply them with the means of sustenance as decreed by our courts. Were it otherwise, wealthy defendants might conceivably, by protracted and vexacious litigation, withhold maintenance from their families until they were reduced either to beggary or starvation.

A further objection raised by the defendant to this motion, though not seriously pressed, is that the complainant having filed her replication to this defendant’s answer, she should not now be permitted to withdraw her replication and move to strike the answer irrespective of the merits. This court at all times has complete control over its pleadings and may make such order as is deemed necessary to facilitate business and advance justice. Chancery rules (1938) (rule 4).

Complainant’s motions for leave to withdraw her replication and to strike the answer of the defendant Harrison H. Boj^ce to the first count of the complaint, are allowed. Submit an order in accordance herewith.