Gray v. Cholodenko, A--126

• Citation: 121 A.2d 417,39 N.J.Super. 406
• Decision Date: 12 March 1956
• Docket Number: No. A--126,A--126
• Parties: Warren GRAY, Jr., Plaintiff-Appellant, v. Nathan CHOLODENKO, Irving L. Hodes, Deuel Rice and Warren Gray, Sr., jointly, severally and individually, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court – Appellate Division

Page 406

39 N.J.Super. 406

121 A.2d 417

Warren GRAY, Jr., Plaintiff-Appellant, v. Nathan CHOLODENKO, Irving L. Hodes, Deuel Rice and Warren Gray, Sr., jointly, severally and individually Defendants-Respondents.

No. A--126.

Superior Court of New Jersey Appellate Division.

Argued Feb. 27, 1956.

Decided March 12, 1956.

Robert S. Hartgrove, Jersey City, for plaintiff-appellant.

Fredrick J. Waltzinger, Newark, for defendants-respondents.

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

Pursuant to our opinion reported in 34 N.J.Super. 190, 111 A.2d 918 (App.Div.1955), this case was sent to the Essex County Court for trial. Under the circumstances presented, there was no basis for relief there unless the plaintiff established fraud on the Essex County Surrogate's Court either in connection with the probate of the will of Louisa Smith or in connection with the probate of the will of her daughter Elizabeth Gray. The County Court found for the defendants, and plaintiff appeals.

Only two questions raised on the appeal need be considered: first, whether as a result of prior litigation over the probate of the will of Louisa Smith, the defendants are estopped from asserting that the will was executed by her; second, if not, whether the proofs below establish a fraud on the surrogate's court in connection with the probate of her will or the will of Elizabeth Gray.

Louisa Smith had two children who survived her, Cornell Smith and Elizabeth Gray, plaintiff's mother. The latter died a year and a half after Louisa. Louisa by a will made in 1946 gave Elizabeth, Cornell and plaintiff each a share of her estate. In 1947 she allegedly signed another will by her mark, leaving all her estate to Elizabeth. After the probate of this latter will, Cornell appealed to the Essex County Orphans' Court. However $3,500 was paid to him in settlement of his appeal, and an order dismissing the appeal was entered. The dismissal of the appeal left standing the surrogate's order admitting the 1947 will to probate--an in rem determination that the will was validly executed.

Plaintiff's first point is that the record estops defendants from asserting that the will was duly executed. But this is not so. The dismissal merely nullified the appeal, leaving in full force an order that established the will. 50 C.J.S., Judgments, § 640, p. 74; Cummerford v. Paulus, 66 Mich. 648, 33 N.W. 741, 744 (Sup.Ct.1887).

Plaintiff relies on the following passage from Kelleher v. Lozzi, 7 N.J. 17, 26, 80 A.2d 196, 200 (1951):

'It has been held that a dismissal of a suit made after, and based upon, an agreement between the parties by which a compromise settlement and adjustment of the subject matter in dispute is made, is a dismissal on the merits and would be a bar to further litigation on the same subject between the parties; * * *.'

This, as stated in the opinion, is suggestive of a retraxit. Restatement of Judgments, § 53(a); 50 C.J.S., Judgments, § 634; cf. Public Service Elec. and Gas Co. v. Waldroup, 38 N.J.Super. 419, 426, 119 A.2d 172 (App.Div.1955). Thus, when a plaintiff compromises his claim and as a result his action is dismissed, the order of dismissal operates as an adjudication that he has no cause of action. United States v. Parker, 120 U.S. 89, 95, 7 S.Ct. 454, 30 L.Ed. 601, 604 (1887). So upon this basis it may be said that the dismissal constitutes a determination that the appellant in the orphans' court had no cause of action. But this proves the opposite of what plaintiff set out to prove here.

Plaintiff further urges that the defendants who share in ...