Brown v. Allied Plumbing & Heating Co. .

• Decision Date: 16 September 1943
• Docket Number: Nos. 24, 30.,s. 24, 30.
• Citation: 130 N.J.L. 487,33 A.2d 813
• Parties: BROWN v. ALLIED PLUMBING & HEATING CO. (two cases).
• Court: New Jersey Supreme Court

130 N.J.L. 487

33 A.2d 813

BROWN

v.ALLIED PLUMBING & HEATING CO. (two cases).

Nos. 24, 30.

Court of Errors and Appeals of New Jersey.

Sept. 16, 1943.

Appeals from Supreme Court.

Proceedings under the Workmen's Compensation Act by Foster V. Brown, claimant, opposed by Allied Plumbing & Heating Company, and August Arace & Sons, Inc. From a judgment of the Supreme Court, 129 N.J.L. 442, 30 A.2d 290, which affirmed a judgment of the Court of Common Pleas, 20 N.J.Misc. 311, 27 A.2d 204, which reversed a judgment dismissing petition as against August Arace & Sons, Inc., and granted claimant award of compensation against Allied Plumbing & Heating Company, alone, August Arace & Sons, Inc., and claimant appeal.

Affirmed.

1. Where a workman filed two compensation petitions against successive employers and the question at issue is whether one employer is liable for the entire amount of compensation due or whether each is liable for part of it; and where the matters are tried together at a single hearing; held, an appeal by the employer against whom the award was made operated to bring into the Court of Common Pleas all the questions at issue, including the liability of the other employer, because there had been in effect a consolidation of the petitions resulting in a situation as if a single petition had been filed against both employers.

2. Where a state of the case is defective in that it does not state the filing dates of papers, as required by the rules, the presumption is in favor of the propriety of the action of the lower court.

Henry Grosman and Isidor Kalisch, both of Newark, for August Arace & Sons, Inc., appellant.

David Roskein, of Newark, Nicholas A. Tomasulo, of Roselle Park, and Harry Cohn, of Newark, for Foster V. Brown, appellant and respondent.

Cox & Walburg and Arthur F. Mead, all of Newark, for Allied Plumbing & Heating Co., respondent.

DONGES, Justice.

The judgments under review will be affirmed.

We conclude that the conclusions of fact stated in the opinion of Mr. Justice Porter, reported at 129 N.J.L. 442, 30 A.2d 290, have ample support in the testimony, and they will not be disturbed.

Appellant August Arace and Sons, Inc., argues in this court that the appeal to the Union County Court of Common Pleas, so far as it related to Arace, should have been dismissed because no appeal was taken from the determination of the Bureau as to the liability of Arace for payment of compensation to Brown, and, further, that jurisdiction over a subject matter may not be conferred by waiver.

It is well settled in this state that jurisdiction over the subject matter may not be conferred by consent or by waiver, where the tribunal otherwise has no jurisdiction over the subject matter. De Feo v. Recorder's Court of Belleville, 129 N.J.L. 549, 30 A.2d 507.

However, we are not met with either of these difficulties. The Bureau and the Court of Common Pleas have jurisdiction of the subject matter involved herein, when the parties are properly before those tribunals. Admittedly both Allied Plumbing and Heating Company and appellant August Arace and Sons, Inc., were properly brought into the Workmen's Compensation Bureau. The only question for determination is as to the jurisdiction of the Union County Court of Common Pleas to hear the appeal as it affected Arace and to reverse the determination of the Bureau that Arace was not liable for...