Wilford v. Sigmund Eisner Co., s. A--817

• Decision Date: 04 April 1951
• Docket Number: Nos. A--817,A--755,A--756,s. A--817
• Citation: 80 A.2d 222,13 N.J.Super. 27
• Parties: WILFORD v. SIGMUND EISNER CO. (two cases). WILFORD v. EISNER et al. (two cases).
• Court: New Jersey Superior Court — Appellate Division

Page 27

13 N.J.Super. 27

80 A.2d 222

WILFORD v. SIGMUND EISNER CO. (two cases).

WILFORD v. EISNER et al. (two cases).

Nos. A--817, A--755, A--756.

Superior Court of New Jersey

Appellate Division.

Argued March 19, 1951.

Decided April 4, 1951.

Ralph Heuser, Matawan, argued both causes for appellant (Heuser & Heuser, Matawan, attorneys).

R. Robinson Chance, Jersey City, argued the law cause for respondent, Sigmund Eisner Co. (Kellogg & Chance, Jersey City, attorneys).

Theodore J. Labrecque, Red Bank, argued the law cause for respondents, H. Raymond Eisner and others (Parsons, Labrecque, Canzona & Combs, Red Bank, attorneys).

John W. O'Brien, Newark, argued the compensation cause for respondent, Sigmund Eisner Co. (O'Brien, Brett & O'Brien, Newark, attorneys).

James J. Skeffington, Newark, argued the compensation cause for respondents, H. Raymond Eisner and others.

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.A.D.

The appellant, George A. Wilford, incurred a lung abscess which he attributed to exposure to coal gas and dust in his employment as a fireman tending furnaces in an office building at 54 Broad Street, Red Bank. That employment was in the period from January 7, 1948 to April 7, 1948 and was given him when he was laid off as a packer by the defendant corporation, Sigmund Eisner Company. The office building is owned by 54 Broad Company, a partnership comprised of the Eisner brothers. Appellant was uncertain which company was his employer and also whether his claim was under the Compensation Act or actionable at common law and instituted both compensation proceedings and law actions against each of the companies.

The law actions were tried first, as consolidated cases, and were dismissed on motions made under Rule 3:41--2 at the close of plaintiff's proofs, the trial judge stating, 'that it is a suit that should be in the Compensation Court and not here, that this Court has not jurisdiction.' Appellant did not appeal from the ensuing judgments, but moved the compensation cases for hearing.

The compensation cases were tried together and were also dismissed upon findings of a deputy director, concurred in by the Monmouth county court, that the appellant had no claim against Sigmund Eisner Company because that company was not his employer at the time, and that he had no claim against 54 Broad Company, which was his employer, because the lung ailment was not connected with appellant's employment, or 'at most' '* * * petitioner's condition is one which is due to an industrial disease not covered by the compensation act.' The deputy director's determination in the Sigmund Eisner Company case was entered in October 1949 and that in the 54 Broad Company case in January, 1950.

The county court judgments on the appeals in the compensation cases were entered in June, 1950, over one year after the entry in the law actions in May, 1949, of the judgments of involuntary dismissal. Appellant in June, 1950, applied to the Law Division by motion under Rule 3:60--2 for relief against the law judgments, stating as his ground for relief that defendants induced those judgments when arguing their motions for involuntary dismissal by admitting 'that the plaintiff met with a compensable accident, and that his relief should be obtained before the Compensation Bureau' and that 'when plaintiff applied for his relief before the Compensation Bureau, the defendants * * * argued that the Judge of the Superior Court should not have made an order dismissing the complaints'; with the result that 'defendants by their motions to dismiss the complaints in the Superior Court lead the plaintiff into a position of resting upon the legal presumption that the defendants were bound by their assertions on the motions and their admissions that the injury suffered by plaintiff was the result of a compensable accident, and by later taking a diametrically opposite position in the Compensation Bureau, deprived the plaintiff of the benefits of the legal admissions or a trial by jury.' The motion was denied.

Appellant appeals from both the order of the Law Division denying his motion for relief, and from the judgments of the Monmouth county court entered in the compensation proceedings. The appeals were consolidated for argument and disposition. At the oral argument on the appeals appellant's counsel informed us that the compensation appeals are pressed only if the law appeals fail, and that, in that case, the only point urged is that the defendants' counsel in urging in the law actions that plaintiff's proofs showed a case for relief under the Compensation Act estopped defendants to assert in the compensation proceedings that appellant had not suffered a compensable accident.

Since the record includes no reasons supporting the denial of the motion in the Law Division, we do not know whether it was grounded upon a supposed lack of power to entertain the motion after one year from the entry of the judgments or upon other reasons. Motions for relief by reason of '(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence * * *; (3) fraud * * *, misrepresentation or other misconduct of an adverse party' must be made within a reasonable time and not more than one year after entry of the judgment sought to be set aside. On the other hand, such a motion for '(6) any other reason justifying relief from the operation of the judgment' is not subject to the one year limitation, but whether it is made within a reasonable time if brought after the lapse of a year is to be determined in the special circumstances of the particular case.

Relief for any reason allowed by the rule rests in the sound discretion of the trial court, controlled by accepted legal principles, whenever such action is appropriate to accomplish justice. Hogan v. Hodge,6 N.J.Super. 55, 69 A.2d 893 (App.Div.1949). Equitable principles may be a guide in administering relief to determine in the particular circumstances whether justice and equity require that relief be allowed. La Bell v. Quasdorf, 116 N.J.L. 368, 184 A. 750 (Sup.Ct.1936); Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 279 (1949). The Rule grants a broad power to trial courts to set aside judgments in proper cases, but the power is not a new one; the courts of this State have always had power to control, vacate or correct their own decrees in the interests of justice. Assets Development Co. v. Wall, 97 N.J.L. 468, 119 A. 10 (E. & A. 1922).

The power should doubtless be freely exercised when the enforcement of a judgment would be unjust, oppressive or inequitable as to the party moving to vacate it. Unless impropriety in its exercise clearly appears in the particular case, this court will not disturb the trial court's action. That, too, is the practice of appellate courts in the federal system in cases arising under amended Federal Rule 60(b), 28 U.S.C.A., which was brought into our Rules, as Rule 3:60--2. Barron & Holtzoff, Federal Practice Procedure (1950), vol. 3, p. 253, and cases cited.

The one-year time limitation imposed upon a motion for reasons falling within subdivisions (1), (2) and (3) of the Rule is an expression of the policy of finally concluding litigation within a reasonable time. Klapprott v. United...