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(93 N. J. Law, 450)

(108 A.)

ciary. The by-laws do not recognize this soBUCKLEY v. ELLSWORTH CAMP, NO. 32, called 'will book.' But this book is used exclu

SONS OF VETERANS, DIVISION

OF NEW JERSEY, U. S. A.

CARROLL v. SAME.

(No. 18.)

sively for the designation of beneficiaries, and dates back to 1903. In May, 1917, Jeremiah Carroll, the deceased, at a meeting of the defendant organization, told the secretary to change the beneficiary to that of his wife, Christine Carroll. Afterwards he received this let

(Court of Errors and Appeals of New Jersey. ter: 'Union Hill, N. J., July 1, 1917. Mr. J. P.

1. INSURANCE BENEFICIARY

BOOK.

Nov. 17, 1919.)

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Where a beneficiary society provided by bylaw for a death benefit payable to member's "nearest relative or such person to whom he may direct," the deceased member had a legal right to make a change in beneficiary from his mother to his wife; and, where such change was directed by him to be made, it was immaterial that no change was made in the "will book" which designated the mother as beneficiary, where the "will book" was not recognized by the association's by-laws.

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Carroll, Dear Bro.: I have changed the beneficiary to your wife Christine Carroll, and I hope this is satisfactory. I remain yours in F. C. L. R. Magai, Secty.'

"No change was made in the 'will' book.' This, as stated above, was not recognized by the by-laws of the association. The court found that the deceased directed the fund to be paid to his wife, Christine Carroll. We cannot review the findings of fact made by the district court. We think as a matter of law the deceased had a legal right to make a change in the beneficiary named. Golden Star Fraternity v. Martin, 59 N. J. Law, 207, 35 Atl. 908. "The judgment of the district court is affirmed, with costs."

William Perlis, of West Hoboken, for appellant.

William C. Kronmeyer, of New York City, for respondents.

PER CURIAM. The judgment under review will be affirmed, for the reasons set forth in the opinion of the Supreme Court.

Suits by Eva Buckley and Christine Carroll, respectively mother and widow of Jeremiah Carroll, deceased, against Ellsworth Camp, No. 32, Sons of Veterans, Division of New Jersey, United States of America, to recover a death benefit, were tried together, resulting in a judgment in favor of the widow in the one case and against the mother in the other case, and the mother appealed to the (Court of Errors and Appeals of New Jersey.

Supreme Court, which affirmed the judgment of the district court. The mother again appeals. Affirmed.

On appeal from the Supreme Court, in which the following per curiam was filed:

[1, 2] "This suit was a contest over a death benefit fund of $50 by the two plaintiffs, the widow and mother of Jeremiah Carroll, deceased. By consent of the parties the cases were tried together by the court without a jury, resulting in a judgment in favor of the plaintiff Christine Carroll, widow, in one case, and against the plaintiff Eva Buckley, the mother, in the other case. In the latter case there is an appeal. There are three grounds of appeal alleged. The first and third involve questions of fact only; the second is whether a member of the defendant organization, in the absence of a provision to that effect, either in the by-laws or constitution, has a right to change the beneficiary. Section 6 of article 12 of the by-laws is as follows: 'On the death of any brother, his nearest relative or such person to whom he may direct shall receive from the camp the sum of fifty dollars ($50.00).' This is the only provision bearing upon the point under consideration. On November 13, 1906, the deceased had designated in what is called a 'will book' his mother, Eva Carroll, now Eva Buckley, as the benefi

(93 N. J. Law, 421) ELY v. HERTSHORN et al.

Nov. 17, 1919.)

(Syllabus by the Court.)

1. FRAUDULENT CONVEYANCES ~~271(2)— RIGHTS OF HOLDER OF TITLE DERIVED FROM LEGAL OWNER.

In an action of ejectment for possession of lands claimed to have been conveyed by a judgment debtor to the defendant in fraud of his creditor, and where the judgment was recovered after the conveyance, and the right, title, and interest of the alleged fraudulent grantor in the land was sold to the plaintiff in ejectment under an execution issued on the judgment against the grantor, the deed of the sheriff is not sufficient to support the action, for the holder of the title, derived from the legal owner, will not be put out of possession without proof of fraud in the grant to him or those under whom he claims title. Minturn, Black, Heppenheimer and Williams, JJ., dissenting.

(Additional Syllabus by Editorial Staff.)
2. FRAUDULENT CONVEYANCES 230-LEVY

AND SALE BY JUDGMENT CREDITOR OF LAND
CONVEYED IN FRAUD OF DEBT.

A judgment creditor has the right to levy on and sell land that he claims to have been conveyed in fraud of his debt.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from Supreme Court.

deed as fraudulent against him as a creditor, Action by Addison Ely against Rudolph ment creditor may remove the subject of the and filed a lis pendens, a subsequent judgM. Hertshorn and others. Verdict and judg-suit from the jurisdiction of the chancellor, ment for plaintiff, and defendants appeal. by selling it under his subsequent judgment and levy, simply because no levy was made Luther Shafer, of Rutherford, for appel- under the execution issued on the judgment lants.

Reversed and a new trial ordered.

Addison Ely, of Rutherford, for appellee.

upon which the chancery proceedings are rested. There is respectable authority for the proposition that the effect of the filing of the bill is, in such cases, to create a lien on the land involved, and that such a lien is superior to a levy under a judgment subsequently entered. It is urged that the rule laid down by vice chancellor Pitney in Kinmonth v. White, 61 N. J. Eq. 358, 48 Atl. 952, is to the contrary, but there the question arose on the marshaling of assets and the establishing of priorities between judgments all in existence when the bills were filed, and the precise question argued on this branch of the present case was not considered or decided. But it is not necessary to decide that question in this case; for, even if the levy created a lien which Phillips could enforce by sale, the right of possession would not be complete until Umstatter's conveyance was established to be fraudulent as to Phillips. It was adjudged to be fraudulent as to Jaeger, and was sold to pay his debt, but that does not prove that it was so as to Phillips.

[2] A judgment creditor has the right to levy on and sell land that he claims to have been conveyed in fraud of his debt, but to maintain ejectment to remove the conveyance and clear his title from it he must prove the fraud, for it is never presumed. All the plaintiff offers in support of his action is the deed from the sheriff to him as the result of the sale under the execution, but as the legal title was in others than the judgment debt

BERGEN, J. [1] This is an action of ejectment to recover possession of land, and was tried before a circuit court judge, a jury being waived, who found in favor of the plaintiff, on which finding the judgment was entered from which defendants appeal. The facts are not in dispute, and are that one Matthias Umstatter, being the owner of land in Bergen county, N. J., 'conveyed the same October 13, 1899, to Agnes Miller and John Umstatter; that December 15, 1899, one Julian Jaeger recovered a judgment in the Bergen county circuit court against Matthias Umstatter for $424.72, and caused an execution to be issued thereon, which was returned unsatisfied and without levy; that December 22, 1899, Jaeger filed a bill in chancery to have the conveyance decreed to have been made in fraud of creditors, and it was so decreed, and the land sold to pay his debt; that notice of lis pendens was duly filed in the proper clerk's office; that Jaeger bought the land at the sale under this decree, and subsequently conveyed it to the Rutherford Heights Association, and the latter conveyed to the present defendants, who now hold the record title. The plaintiff's title rests upon the following conditions: On the day Jaeger recovered his judgment one Phillips recovered a judgment against Umstatter in a court for the trial of small causes, which was docketed January 5, 1900, in the court of common pleas of Bergen county for $103.10, and an execution is-or, he must show to the satisfaction of a jury sued thereon by virtue of which a levy was made on the right, title, and interest, of Umstatter in the same land, and it was sold to the plaintiff in this cause February 28, 1900, and conveyed to him by the sheriff of Bergen county March 15, 1900. No action was taken to disturb the possession of the purchaser under the decree in chancery, or his grantors until August 6, 1918, a period of over 18 years, when this suit was brought. This record clearly shows that when the bill of complaint was filed to set aside the Umstatter deed as fraudulent, the Phillips judgment was not a lien on the lands, either at law or in equity, because it was not dock eted in the common pleas until long after the bill in equity and notice of lis pendens had been filed. The plaintiff argues in support of his judgment in ejectment that the sale made by virtue of the order of the court of chancery did not affect his right, if any, under his judgment entered after the bill was filed; in other words, that when a judgment

that the conveyance was voluntarily made, with a fraudulent intent to hinder and delay him in the collection of his debt. If that condition did not exist, then the grantee of Umstatter had the legal title, and the plaintiff had conveyed to him nothing but a nonexistent interest. Nor is he entitled to the benefit of the decree of the chancellor in the Jaeger suit, for that could only adjudge that the conveyance was void as to the complainant alone, as the bill was not filed for the benefit of all creditors who might come in and help bear the burden of that suit.

There being no proof of fraud in this case, all the trial court had as a basis for the judgment appealed from was a deed made by a sheriff for lands sold by virtue of an execution against one who had not the legal title, and such a sale could not convey a title vested in a person not a party to the action in which the judgment was entered. unless the conveyance was in fraud of creditors; and, there being no proof of this, there is

(108 A.)

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against one who is a bona fide purchaser from | John Emerick. Compensation awarded, and the grantee of the sheriff of Bergen county, defendant employer appeals. Judgment afwho sold and conveyed the land as directed firmed. by the decree of the chancellor because the conveyance, passing the title from the judgment debtor, was a fraud as to the judgment

creditor.

The proof failing to meet the legal requirements in this case, the judgment will be reversed, and a new trial ordered.

MINTURN, BLACK, HEPPENHEIMER, and WILLIAMS, JJ., dissent.

(93 N. J. Law, 282)

EMERICK et al. v. SLAVONIAN ROMAN
GREEK CATHOLIC UNION.

Argued June Term, 1919, before TRENCHARD, BERGEN, and KALISCH, JJ.

Wood McKee and Francis Scott, both of Paterson, for prosecutor.

Thomas J. Kennedy, of Passaic, for defendant.

TRENCHARD, J. John Emerick was employed by the Slavonian Roman Greek Catholic Union as bartender in their saloon in Passaic. Whilst there engaged in selling intoxicating liquors he was shot and killed by a patron of the saloon.

Emerick's widow was awarded compensation by the court of common pleas under sec

(Supreme Court of New Jersey. Nov. 5, 1919.) tion 2 of our Workmen's Compensation Act

(Syllabus by the Court.)

1. MASTER AND SERVANT 371-WORKMEN'S COMPENSATION ACT; ACCIDENT "ARISING OUT OF EMPLOYMENT."

Where an accident is the result of a risk reasonably incident to the employment, it is an accident arising out of the employment.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Course of Employment.]

2. MASTER AND SERVANT 371-WORKMEN'S
COMPENSATION ACT; "INCIDENTAL RISK" OF
EMPLOYMENT; "ORDINARY RISK;" "EXTRAOR-
DINARY RISK."

(P. L. 1911, p. 134), and the employer sued out this writ of certiorari.

[1] We are of the opinion that the judgment was right. The common pleas judge found that the death was, "by accident arising out of and in the course of his employment." Counsel for the prosecutor concede that here "the only question to be settled is whether it arose out of the employment." Where an accident is the result of a risk reasonably incident to the employment, it is an accident arising out of the employment. Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Hulley v. Moosbrugger, 88 N. J. Law, 162, 95 Atl. 1007, L. R. A. 1916C, 1203.

A risk is incidental to the employment when it belongs to or is connected with what an employé has to do in fulfilling his contract of service. It may be either an ordinary risk, directly connected with the employment, or an ex-72, traordinary risk, which is only indirectly connected with the employment, owing to the special nature of the employment.

[Ed. Note.-For other definitions, see Words and Phrases, Second Series, Extraordinary Risk; First and Second Series, Ordinary Risk.]

[2] A risk is incidental to the employment when it belongs to or is connected with what an employé has to do in fulfilling his contract of service. Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458, Scott v. Payne, 85 N. J. Law, 446, 89 Atl. 927. It may be either an ordinary risk, directly connected with the employment, or an extraordinary risk, which is only indirectly connected with the employment, owing to the special nature of the

3. MASTER AND SERVANT 373-WORKMEN's employment. Bryant v. Fissell, 84 N. J. Law,

COMPENSATION ACT; DEATH IN QUARREL
WITH PATRON AS "ARISING OUT OF EMPLOY-
MENT."

Where decedent, while at work for his employer as a bartender selling intoxicating liquors in his employer's saloon, was shot and killed by a patron because of and during a dispute regarding the price of drinks which decedent sold to such patron, the trial judge was justified in concluding that decedent's death arose out of his employment.

72, 86 Atl. 458.

[3] Now the trial judge found that the "petitioner's husband was shot through the heart by a bullet discharged from a revolver by one of three Italians, who had entered respondent's place of business on said day, and with whom petitioner's husband, while performing his work of selling beers, wines, whiskys, etc., for the respondent, had a dispute regarding the price of certain drinks

which he had sold them; that said shot was fired at petitioner's husband because of and Appeal from Court of Common Pleas, Pas- during the dispute regarding said price of

saic County.

Action by Mary Emerick and others against the Slavonian Roman Greek Catholic Union, for compensation under the Workmen's Compensation Act for the death of her husband,

drinks."

That finding of fact is not challenged. And we think where, as here, decedent, while at work for his employer as a bartender selling intoxicating liquors in his employer's saloon,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

was shot and killed by a patron because of and during a dispute regarding the price of drinks which decedent sold to such patron, the trial judge was justified in concluding that decedent's death arose out of his employment. It was, of course, decedent's duty to collect the price of drinks sold. An assault as the result of an attempt to make such collection was a risk reasonably incident to the performance of the work, and, if not an ordinary risk directly connected with the employment, certainly it was an extraordinary risk, indirectly connected with the employment, owing to the special nature of the employment. The case is in principle much like Foley v. Home Rubber Co., 89 N. J. Law, 474, 99 Atl. 624, affirmed 91 N. J. Law, 323, 102 Atl. 1053.

TRENCHARD, J. Some time prior to December 21, 1916 (the exact date not appearing) the relator purchased certain lands in Jersey City on which taxes were in arrears. On the day mentioned, the relator desired to pay the taxes and did so; but for the years from 1903 to 1912, inclusive, the city collector, although receiving the principal and interest at the rate of 7 per centum per annum from the 20th day of December of the year of the levy down to the time of payment, refused to receipt the tax bills in full or to cancel the assessments on his books.

On July 20, 1917, the relator obtained this rule to show cause why a mandamus should not issue commanding the cancellation of the taxes. Just why the matter was not brought up in this court for argument more

The judgment will be affirmed, with costs. promptly does not appear.

(93 N. J. Law, 284)

LEHIGH VALLEY HARBOR TERMINAL
RY. CO. v. CITY COLLECTOR OF
JERSEY CITY et al.

[1] We are of the opinion that the writ should issue.

The reason for the collector's refusal was his notion that he was entitled to demand 10 per centum interest per annum.

But that notion was erroneous. The rate prior to 1903 was 10 per centum under an

(Supreme Court of New Jersey. Nov. 5, 1919.) act approved February 5, 1878 (P. L. 1878,

(Syllabus by the Court.)

p. 12; Comp. Stat. 5176, § 198), but that act was superseded by the General Tax Act of 1. TAXATION 528-PAYMENT OF EXCESS IN- 1903, which expressly repealed all inconsistTEREST ON ARREARS AUTHORIZES CANCELLA-ent laws (P. L. 1903, p. 435, § 66).

TION OF TAXES.

Leaving out of consideration the Tax Act of March 4, 1918, p. 847 (which has no application to the present case), under paragraph 43 of the General Tax Act of 1903 (4 Comp. St. 1910, p. 5126), taxes in arrears bear interest at 7 per cent. per annum from December 20th of the year of the levy down to the time of payment, unless the governing body of the taxing district has fixed a higher rate (not exceeding 12 per cent.), and where no higher rate was fixed, an owner of lands, bought about 1916, who in 1917 paid the collector the principal of the taxes assessed against it for the years 1903 to 1912, inclusive, together with interest thereon at 7 per cent. from December 20th of the year

The rate of interest for taxes in arrear for the years in question (we are not here concerned with the Tax Act of 1918 (P. L. p. 847) is regulated by section 43 of the General Tax Act of 1903 (Comp. Stat. 5126). It provides that

"Where any taxes shall not be paid on or before the twentieth day of December following their assessment, interest thereon from and after that date shall be added at seven per centum per annum, or at such higher rate not exceeding in the whole twelve per centum per annum as the governing body of the taxing district may fix."

In Jersey City the governing body never of levy down to the date of payment, is enti- fixed any higher rate of interest on taxes.

tled to have such taxes canceled.

2. TAXATION 497-MANDAMUS AS PROPER REMEDY TO COMPEL CANCELLATION OF TAXES. Mandamus is the proper remedy to compel the cancellation of taxes on payment of the correct amount due.

Rule to show cause why a writ of mandamus should not issue on relation of the Lehigh Valley Harbor Terminal Railway Company against the City Collector of Jersey City and others. Peremptory writ of mandamus issued.

Argued June term, 1919 before TRENCHARD, BERGEN, and KALISCH, JJ.

Gilbert Collins, of Jersey City, for relator. John Bentley and John Milton, both of Jersey City, for defendants.

[2] The defendants contend that relief should be denied because of "a lack of diligence on the part of relator and its predecessor in title to the disadvantage of the city." We see no merit in the contention.

With respect to the argument that the city was prejudiced by reason of the fact that some of the individuals who served upon the various boards of finance (the governing body) from 1903 to 1913 are now dead, it is sufficient to say that we think that it is immaterial, in a legal sense, in view of the fact that so far as appears in the state of the case there was no pretense that the governing body, at any time, had fixed any higher rate than 7 per centum, nor was there any proof or attempt to prove any such action.

But it is contended that if the relator, or

(108 A.)

BOND.

its predecessor in title, "had made its demand | relief of persons imprisoned on civil process, seasonably, the city could have acted and commonly called the Insolvent Debtors Act (2 protected itself with respect to future years,' ," Comp. St. 1910, pp. 2824-2835), is unrestricted. and hence the relator should be denied relief. 4. BONDS 35-RECOVERY ON VOLUNTARY We think that contention must be decided adversely to the city. In Ford Motor Co. v. Kearney, 91 N. J. Law, 671, 103 Atl. 254, L. R. A. 1918D, 361, the town had furnished water to the premises for some three years on the order of the tenant, without the land

lord's knowledge. The court said that it was the duty of the town, under the facts of that case, to shut off the water after the first bill was unpaid. In the case in hand it was the duty of the city under the Tax Law to advertise the land for sale, and had it done so, making a claim of interest at 10 per cent., the landowner would have been apprised of this unfounded claim and could have resisted it successfully. We are unable to perceive how a landowner by simply permitting taxes to accumulate can be deprived of his rights, nor how delay in payments can authorize the addition of an unauthorized penalty. He knows what the statutory penalty is, and as to the taxes now involved it is 7 per cent. per annum. When the new owner wished to clear the property and paid the taxes and lawful penalties, the city collector was bound to cancel the tax liens, and on his refusal to do so, of course, mandamus lies against him. Hoboken, etc., R. R. Co. v. Hoboken, 76 N. J. Law, 122, 68 Atl. 1098.

Since there has been a full hearing on the rule to show cause, a peremptory writ of mandamus should issue, with costs.

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In moving for a nonsuit, counsel should state specifically the grounds upon which the motion is rested; but the arguments thereon should not be taken down by the stenographer, and should not be returned with the record or printed.

2. APPEAL AND ERROR 1010(1)—REVIEW OF QUESTIONS OF FACT.

That this court, in reviewing judgments of courts of law, has no power to pass upon the weight of evidence, has long been definitively settled; and all judgments under review are to be sustained so far as factual questions are concerned, if there be any competent evidence to support them.

3. EXECUTION 449-RIGHT TO MAKE SEVERAL APPLICATIONS FOR DISCHARGE.

When a bond given in pursuance of a statute is not in accordance therewith, but is not the product of coercion or duress, is not prohibited by statute nor contrary to public policy, is founded upon good and sufficient consideration, and intended to subserve a good and lawful purpose, it is good as a voluntary bond; and recovery had thereon, if supported by competent evidence, will be upheld.

5. EXECUTION 453(2) APPEARANCE IN

COMPLIANCE WITH BOND.

Merely appearing in the common pleas court in compliance with the condition of a bond under the Insolvent Debtors Act, and doing nothing more, is not a compliance with the condition to appear. The debtor is required to do more; he must appear for a purpose, and is required, by himself or counsel, to crave audience of the court and announce the purpose of his presence, and he must, also, in all things required of him, comply with the conditions of the insolvent laws.

6. QUÆRE.

Although the Insolvent Debtors Act leaves unrestricted the number of times a debtor imprisoned on civil process may apply for his discharge, does this give him the right to so apply on the identical set of facts adjudged against him on a last prior application; and Would not the doctrine of res judicata operate to defeat such last identical applicationquære.

Appeal from Supreme Court.

Action by Henry Koch, trading as H. Koch & Co., against Stefano Costello and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Isadore Klenert, of Paterson, for appellants.

William Greenfield, of Newark, for respondent.

WALKER, Ch. This is an appeal from a judgment recovered by the plaintiff in the New Jersey Supreme Court, Essex circuit, in an action instituted against the defendants to recover on a certain bond given by them, Stefano Costello, as principal, and Domenico Botti, as surety, for the use and benefit of the plaintiff, in insolvency proceedings then pending in the Passaic county court of common pleas. Judgment was directed by the court in favor of the plaintiff and against the defendants, and they have appealed to this court.

The bond was given in the following circumstances: Stefano Costello was arrested on a capias issued out of the district court of the city of Passaic, on a certain judgment

The number of times an insolvent debtor may apply for his discharge under the act for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 108 1.-15

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