(113 A.) payment of the insurance provided by each KOZLOSKI v. PRUDENTIAL INS. CO. OF❘ of these policies was presented to the company, but was repudiated on the ground that AMERICA. (Court of Errors and Appeals of New Jersey. the premiums called for by each of them Feb. 28, 1921.) 1. Insurance 372-Life policies held not to have provided for self-operative forfeiture. Under life policies providing that, if insured died while the premium was in arrears for not exceeding four weeks, the company would pay the amount provided, but that after expiration of such period of grace its liability should cease and the policy lapse, failure to pay premiums in the time allowed would or would not create a forfeiture at the option of the company, which could take advantage of the provision and declare a forfeiture, or waive the forfeiture and receive payments after the expiration of the four weeks provided, in which case the policy is revived and continues to be a valid and outstanding obligation against the insurer. 2. Insurance 392 (8)-By retaining premiums paid after death insurer elected to keep policies in force. Though payments on life policies made after the death of insured were received by the insurer in ignorance of the fact, the insurer had the option, when it learned the real situation, to return the premiums so received and declare the policy void under its provisions, or it could waive such right and retain the premiums, and by so doing it elected to keep the policies in.force, though the insurer did not formally notify insured's representative how it had exercised its option. Appeal from Circuit Court, Union County. Action by Mary Kozloski, administratrix, against the Prudential Insurance Company of America. From judgment for plaintiff, defendant appeals. Affirmed. were overdue more than four weeks, and that they had therefore lapsed. The present respondent thereupon instituted this action, and the only defense set up in the answer was that the policies had lapsed because of the nonpayment of premiums at the time called for therein or within four weeks thereafter. The proofs offered at the trial in support of the respondent's claim showed that on the day of her husband's death, and on the 4th day of August following, she had made payments to the agent of the company of sums of money sufficient to satsify the premiums which had accrued and which remained unpaid at the time of the death of her husband, that these payments were received by the company's agent, and had never since been returned to her by the company. The appellant submitted evidence proving that each one of the premiums for which these payments were made was not only overdue, but that the four weeks of grace which the policies allowed thereon had already expired when the company's agent received the moneys; and that this agent had no authority to waive the lapsing clause of the policies. At the close of the respondent's case, a motion to nonsuit was made and denied, and when the testimony on both sides was closed a motion to direct a verdict in favor of the appellant was also denied. The jury returned a verdict in favor of the respondent. From the judgment entered thereon the present appeal is taken. [1, 2] Only two grounds of appeal are urgMartin P. O'Connor, of Elizabeth, for ap-ed before us: (1) That the motion for nonpellant. suit was improperly refused; (2) that the Stamler & Stamler, of Elizabeth, for re- court should have directed a verdict at the spondent. GUMMERE, C. J. This is an action brought on two life insurance policies, for $500 each, issued by the appellant company upon the life of respondent's decedent, Adam Kozloski. Both policies were issued in the year 1918, one in June and the other in November. Each one of them called for the payment of a weekly premium amounting to 42 cents, and contained a provision that, should the insured die while the premium on the policy was in arrears for a period not exceeding four weeks, the company would pay the amount of insurance provided therein, but that after the expiration of the said period of grace the company's liability on the policy should cease and the policy should lapse. Adam Kozloski died on the 29th of July, 1919, and on August 6th a claim for the request of the appellant. Both grounds of appeal are rested upon the proposition that, by reason of the failure of the respondent's decedent, or anybody in his behalf, to pay the premiums before the expiration of the last week of grace, the policies became null and void. In our opinion, the contention rests upon a misapprehension of the effect of the lapsing clause in the policies. It provides for a forfeiture, but it is not selfoperative. The failure to pay the premiums within the time allowed will or will not create a forfeiture at the option of the insurer; in other words, the company may take advantage of the provision and declare a forfeiture, or it may waive the forfeiture and receive payments of the past-due premiums after the expiration of the time provided in the policy. If the latter course is adopted, the policy is revived and continues For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes A railway company, having accepted an ordinance granting permission to lay its tracks the burdens. It cannot accept the benefits and on a public highway in its entirety, must accept reject the burdens. This is so, even when the work done by the municipality, from which the obligation arose, was ultra vires. 4. Street railroads 37-Collateral attack on paving procedure unauthorized. A railway company cannot stand by and see public work done, for which it may be liable, under a resolution, and then raise the question of the propriety of the procedure collaterally, viz. that the work should have been done under an ordinance, and not by resolution. to be a valid and outstanding obligation | 3. Street railroads 24 (5)-Ordinance reagainst the insurer. It may be conceded, quiring paving imposes obligation when acas is argued by counsel, that the proofs in cepted. the case conclusively show that the payments made on and after the death of respondent's decedent were received in ignorance of the fact of that death. But, in this situation, the company had the option, when it learned what the real situation was, of returning the premiums so received and declaring the policy void, or it might, if it saw fit, waive that right and retain the premiums which were received by it. By following the latter course it elected to keep the policies in force. And this is so notwithstanding that the company did not formally notify the representative of the insured how it had exercised its option. Its action expressed its intention as fully and completely as could have been done by verbal or written statement. That is to say, it could not declare the policy to be void, and at the same time retain moneys paid to it on account of the insured, and to which it had no legal right, except upon the theory that the policy was in full force and virtue. This is the underlying principle upon which the decision in Melick v. Metropolitan Life Ins. Co., 84 N. J. Law, p. 437, 87 Atl. 75, affirmed 85 N. J. Law, p. 727, 91 Atl. 1070, is rested. The motions to nonsuit and to direct a verdict were each of them properly refused, and the judgment under review will be affirmed. BOROUGH OF MERCHANTVILLE v. CAM- (Syllabus by the Court.) (Additional Sullabus by Editorial Staff.) 5. Street railroads 28(3)-Not authorized to extend tracks or lay additional tracks without borough's consent. Under P. L. 1896, p. 329 (4 Comp. St. 1910, p. 5040, § 147), P. L. 1896, p. 357 (4 Comp. St. 1910, p. 5045, § 150), and P. L. 1893, p. 144 (4 Comp. St. 1910, p. 5017, § 86), a street railroad company, whose charter was subject to alteration by the Legislature, could not lay an additional track and extend its tracks on a borough street without the borough's consent. 6. Street railroads 31-Borough may consent to construction on street constituting road of turnpike company. Under P. L. 1896, p. 329 (4 Comp. St. 1910, p. 5040, § 147), and P. L. 1896, p. 357 (4 Comp. St. 1910, p. 5045, § 150), providing that no street railroad should be constructed on any street in any borough, etc., except with the consent of the governing body, and that street railroads may extend their lines along streets, etc., subject to all provisions as to the granting of consent by municipal authorities, a borough had jurisdiction to consent to the location of street railway tracks and to the use of electric1. Street railroads 48-Successor of com- ity as a motive power, though the street was pany permitted to extend tracks by ordinance part of the road of a turnpike company. held liable for paving of portion of street. Statute requiring The Public Service Railway Company, the 7. Street railroads 19 defendant, as the successor in interest to the municipal consent altered company's charter. property and franchises of the Camden & Sub- P. L. 1893, p. 144 (4 Comp. St. 1910, p. urban Railway Company, is liable to the bor-5017, § 86), prohibiting the laying of street ough of Merchantville for the expenses of pav- railroad tracks without municipal consent, to ing, between the rails and tracks of the com- that extent altered the charter of a company pany and three feet on each side thereof, for whose charter was subject to alteration by the that portion of Maple avenue in the borough Legislature. west of Centre street. This results from an ordinance passed by the council of the borough on December 18, 1900, and an agreement with the defendant company, dated November 15, 1915. For an amplification of the facts and statutes which lead to this result, see the body of the opinion. 8. Street railroads 24 (1)—Statute limiting borough's power of consent to construction held repealed pro tanto. If P. L. 1893, p. 144 (4 Comp. St. 1910, p. 5017, § 86), prohibiting the laying of street railway tracks without municipal consent, was repealed by P. L. 1893, p. 342, limiting the borough's functions to the designation of the location of the track on turnpikes, the later act was in turn repealed pro tanto by P. L. 1896, p. 329 (4 Comp. St. 1910, p. 5040, § 147), and P. L. 1896, p. 357 (4 Comp. St. 1910, p. 5045, § 150). (113 A.) 9. Street railroads 24(1)-Borough not deprived of power to consent to construction. P. L. 1905, p. 325, authorizing the purchase of turnpikes by boards of freeholders, and vesting exclusive control over them in such boards, did not take from a borough the power to consent or refuse to consent to the building or extending of a street railroad over the portion of the highway within its limits. 10. Street railroads 37-Agreement held to deprive company of objection that paving was not done at borough's expense. Where an ordinance required a street railway company to pave a portion of the street whenever the street should be paved under the direction and at the expense of the borough, and the street was subsequently paved at the expense of the borough, state, and county, an agreement between the borough and the company, providing that such paving should be deemed done in accordance with the requirements of the ordinance, prevented the objection by the company that the pavement was not laid under the direction and at the expense of the borough. L. 1872, p. 512, which authorized the company to build a street railway on the turnpike over Maple avenue in Merchantville. Then a lease by the Camden Horse Railroad Company to the Camden & Suburban Railway Company May 1, 1896. The Moorestown & Camden Turnpike Company was conveyed to the county of Camden November 7, 1913, under P. L. 1905, p. 325. Then, by sundry conveyances, the property and franchises of the Camden & Suburban Railway Company became vested in the defendant Public Serv ice Railway Company. The claim of the borough rests on an ordinance of its council, passed December 18, 1900, and duly accepted by the Camden & Suburban Railway Company, and an agreement, dated November 15, 1915, between the borough and the Public Service Railway Company; but, as the Camden & Suburban Railway Company was not a party to the agreement, a nonsuit was entered in favor of that company. In 1892 the Camden Horse Railroad Company had located and was operating a single-track road, with turnouts, in the borough of MerchantAction by the Borough of Merchantville ville, as far as Centre street. On May 1, against the Camden & Suburban Railway 1896, the Camden Horse Railroad Company Company and the Public Service Railway Company. From a judgment for plaintiff against the defendant the Public Service Railway Company, defendants appeal. Af Appeal from Supreme Court. firmed. Frank Bergen, of Newark, for appellants. Lewis Starr and Edward I. Berry, both of Camden, for respondent. BLACK, J. [1] The controversy in this case is over the liability of the defendant Public Service Railway Company to pay the borough the expenses of paving between the rails and tracks of the company, and three feet on each side thereof, on that portion of Maple avenue in the borough of Merchantville west of Centre street. The case was tried by Judge Frank T. Lloyd without a jury, resulting in a judgment for the plaintiff, for the sum of $35,877.56, and a nonsuit in favor of the defendant the Camden & Suburban Railway Company. stated as follows: leased all its properties to the Camden & Suburban Railway Company. Early in 1900 the Camden & Suburban Railway Company presented its formal petition to the borough council for leave to double-track the road, and also to extend the whole line to the east ern borough limits, through Maple avenue. The result was the passage and acceptance of the ordinance of December 18, 1900. Section 6 of this ordinance provides for paving by the company between the rails and between the tracks and for three feet outside the tracks on either side. This appears to have been complied with. Then follows this pertinent and important provision: "And whenever, after five years from the passage of this ordinance, such remaining sections of the Moorestown pike or Maple avenue not required by this section to be paved by the said the Camden & Suburban Railway Company shall be paved under the direction and at the expense of said borough from the curb on each side to within three feet of the outermost rails The appellant states 6 grounds of appeal. with any improved pavement, the said company The second, including error in not finding shall within sixty days after notice by said in favor of the defendant company, by the council, pave between the tracks and between trial court, on one or more of the 15 grounds the rails of said railway, and three feet on the which the defendant requested the trial court outside of both north and south tracks, with such other improved pavement as said borin writing to find in its favor. The facts, ough council shall direct, and shall keep the as found by the trial judge, are concisely same in repair under the direction of said borough council, and that in case said railway comThe borough of Merchantville is surround-pany shall fail to comply with such notice the ed by Pensauken township. Maple avenue said paving may be done by the said borough extends entirely through the borough. This council as aforesaid at the expense of said was part of the Moorestown & Camden company." Turnpike Company, incorporated under P. L. 1849, p. 145. The Camden Horse Railroad Company was incorporated under P. L. 1866, p. 640, Supplement P. L. 1868, p. 638, and P. This ordinance was adopted at the instance and on the petition of the company's predecessor in title. It was accepted and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes acted on, by use of the privileges it contains. street railway tracks thereon, or to consent The paving involved was not done in strict to the use of electricity as a motive power. accordance with the provisions of the ordi- This cannot be so. If the matter was doubtnance; hence the agreement of November 15, ful before 1896, the two statutes of that 1915, was entered into to meet this situation. year, referred to under the first point, make When the paving was completed, the Public this legislation applicable toService Railway Company paved the portion east of Centre street in Merchantville, but contests its obligation to pay for that portion west of Centre street. The agreement, executed November 15, 1915, provides that, whereas, there had been certain controversies between the borough and the company as to the latter's paving obligations, to facilitate the improvement, both borough and company agreed that, so far as the paving is concerned from Centre street eastward, there is no dispute as to the obligation of the company to repave under the ordinance of December 18, 1900, such paving is to be considered to be done at the expense of the borough. As to the portion west of Centre street, a like stipulation is made, with the reservation that the company denies its obligation under the ordinance. Then follows this language: "When such paving, done in the manner aforesaid, is completed, it shall be deemed to have been done in accordance with the requirements named in section 6 of the aforesaid ordi .nance." The portions of the street not falling to the company were then paved, partly at the expense of the borough, of the state, and of the county. The part falling to the company was paved by the borough; the bill for the amount expended under the ordinance by the borough, for repaving between and along the tracks, was forwarded to the company.. The trial court further found the agreement of November 15, 1915, was the result of long negotiations between the borough and the company. Payment was actually made for a portion; the dispute of liability for the present paving rested wholly on other grounds. The agreement was actually carried out as contemplated by the parties. These were the facts before the trial court. [5] The appellant now argues that the judgment should be reversed, and insists, first, that, the Camden Horse Railroad Company, by its charter, had full right to lay an additional track and to extend its tracks to the east line of the borough, subject only to the right of the turnpike company to object. This is not so, because the company's charter was subject to alteration by the Legislature. P. L. 1866, p. 640, par. 13. It was altered by the two acts of the Legislature. P. L. 1896, p. 329 (4 Comp. Sts. p. 5040, par. 147); P. L. 1896, p. 357 (4 Comp. Sts. p. 504, par. 150). See also P. L. 1893, p. 144 (4 Comp. Sts. p. 5017, par. 8C). [6] Second. The borough of Merchantville had no jurisdiction over the turnpike com "any street, avenue, highway or other public place in any city, town, township, village or borough of this state." [2] Third. The new work could not be done without the consent of the turnpike company. This was never given. This is a matter of fact so treated by the trial judge. The turnpike company stood by and saw the work done without objection. This raises a presumption of consent, if consent was needed. The defendant company is estopped from raising any such matter of defense. [3,7] The insistence next is: The second track west of Centre street was laid under the charter grant. This is not so in fact. It was laid under the authority of the ordinance. The act (P. L. 1893, p. 144) prohibited the laying of any tracks without municipal consent, and to that extent altered the ask for permission to extend its line and charter. Moreover, the company could not double-track it throughout the borough, and having received permission to do that thing, as a unit, carrying out part, but not all of the scheme. The company having accepted the ordinance in its entirety, it must accept the burdens. It cannot accept the benefits and reject the burdens. Borough, etc., of Rutherford v. Hudson River Traction Co., 73 N. J. Law, 227, 63 Atl. 84. [8] The next point is: The act of 1893 (P. L. 1893, p. 144 [4 Comp. Sts. p. 5017]), was repealed by a later act of that year-March 16, 1893 (P. L. 1893, p. 342)—which provided that the function of the borough should be limited to a designation of the location of the track or tracks of such street railway company, upon the roadbed of such turnpike company, when the railroad was built on a turnpike. If this be true, then the later act was in turn repealed pro tanto by the acts of 1896, referred to under point 1. [9] Again, it is urged: The borough of Merchantville never had jurisdiction over the turnpike prior to its conveyance to the county on November 7, 1913. The borough was expressly prohibited by law from exercising any jurisdiction or control over the roadway of the turnpike. This is not so. The act (P. L. 1905, p. 325) authorizing the purchase of turnpikes by boards of freeholders and vesting exclusive control over them by the latter did not take from the borough the power to consent to or refuse the building or extending a street railroad over the portion of a highway within its limits. It may be that the paving of Maple avenue by the borough was ultra vires; but that is no bar to the right of the borough to enforce (113 A.) tion it assumed when it accepted the ordi- by the Supreme Court, and defendant ap⚫nance. Borough, etc., of Rutherford v. Hud-peals. Appeal dismissed. son River Traction Co., 73 N. J. Law, 227, 63 Atl. 84. [4] Again it is said: The proper method of providing for the paving should have been by ordinance, instead of by resolution. But, assuming this to be true, the defendant company cannot raise that question collaterally. Moreover, it cannot stand by and see the work done under the resolution, and then raise the question of the propriety of the procedure. [10] Finally, it is said: The pavement was not laid "under the direction and at the expense of said borough," and therefore it is not within the contract contained in the ordinance of December 18, 1900. The complete answer to this is: By the stipulation in the agreement of November 15, 1915, it was agreed that: "Such paving is to be considered as done under the direction and at the expense of the borough from curb to curb, notwithstanding the above recited facts, in any legal action which may be taken by the borough to enforce payment." * There is no need of extending this discussion further. There is no legal merit in any of the other points raised or argued. Our conclusion therefore is, finding no error in the record, the judgment of the Supreme Court is affirmed, with costs. DIAMOND MILLS PAPER CO. v. LEONARD HYGIENE ICE CO. (No. 38.) Elmer W. Romine, of Morristown, for appellant. Charles A. Rathbun, of Morristown, for respondent. PER CURIAM. This was an action on contract in the first judicial district court of the county of Morris. The plaintiff had judgment, and an appeal was taken to the Supreme Court where it was affirmed, whereupon the defendant appealed to this court. The plaintiff-respondent contends before us that none of the 10 grounds of appeal filed in this court conform to proper procedure, and moves us to hold the defendant-appellant to a compliance with the method of appellate procedure laid down by this court, citing State v. Verona, 93 N. J. Law, 389, 108 Atl. 250; Thompson v. East Orange, 109 Atl. 340; State v. Metzler, 110 Atl. 922. [1, 2] There is no ground of appeal in this court, stating that the Supreme Court erred in giving judgment for the plaintiff-respondent, instead of for the defendant-appellant, the only proper assignment under the cases appeal go to the finding or opinion of the cited. Besides, several of the grounds of court below, which is also bad. McCarty v. West Hoboken, 93 N. J. Law, 247, 107 Atl. No. 57, 112 Atl. 193, March term, 1920. 265; Birtwistle v. Public Service Ry. Co., As there is no ground of appeal in the record before us which raises in this court alleged error in the court below, the present appeal will be dismissed. (Court of Errors and Appeals of New Jersey. OKIN et al. v. BROAD & MARKET NAT. Feb. 28, 1921.) (Syllabus by the Court.) BANK et al. (No. 57.) (Court of Errors and Appeals of New Jersey. Feb. 28, 1921.) I. Appeal and error 719(11), 722(1)—Ap- Where no ground of appeal in a record before the Court of Errors and Appeals raises in that court any alleged error in the court below, the appeal will be dismissed. (Syllabus by the Court.) 95-Party seeking relief must himself be ready to pay amount admitted, or such as court finds to be due. A borrower, filing a bill in chancery to be relieved from a usurious charge or contract, must tender himself ready and willing to pay the amount he admits to be due, or, if not, to pay such amount as the court shall find to be due. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |