*1 For reversal —Chief Justice Yandeebilt, and Justices Hehee, Oliphant, Waoheneeld, Bublinr and Jacobs. —6.
For affirmance —None. MIDLER, PLAINTIFF-APPELLANT, L. HARRY v. ABRAHAM HEINOWITZ, M. DEFENDANT-RESPONDENT. Argued May 5, 1952 Decided June 1952.
Mr. Kraemer the cause for Joseph argued appellant. Mr. the Crummy respondent Andrew B. cause for argued «£ n Consodine, (Messrs. Crummy attorneys). The the opinion of court was delivered by Jr., J. Under an of refer- order Brennan, William ence entered in the former of Chancery January Court on 12, 1945, an was taken of the by special account master
joint venture the engaged during 'by parties scrap. resale and buying surplus of manufacturers’ defend- master and the filed his on report February ant the the exceptions filed After exceptions. hearing upon September Division entered Chancery by judgment venture $11,775.24 the credited to the (a) struck addition high- sales account the master as of the sale by proceeds speed Bearing Company steel from Fafnir purchased re- found have been sold to Steel Company, (b) to Crucible the $10,599.39 $3,863.80 by duced- to the sum added from master to the venture sales account for sales found master from have been materials purchased made from Bridgeport adjudged Thermostat Company, (c) $4,244.20 should withdrawals aggregate weekly, be against profits as advances share of charged plaintiff’s venture, and not as expense (d) business wages al- $1,000 $2,000 with additional charged plaintiff master, lowance interest the amount to the disallowed on (e) to be due to adjudged plaintiff. unanimously
Upon appeal the Division plaintiff’s Appellate reducing affirmed remand the finding judgment except the amount the credit for the Com an item for further consideration and pany explanation Heinowitz, 6 Midler reason supporting finding. Plaintiff was allowed (App. 1950). Div. Super. review Divi certification to judgment sion, 6 under re Thereupon N. J. 568 an order of (1951). mand of this Division further Chancery considered *4 item and confirmed its Company Bridgeport thereto for stated in original respect reasons judgment letter The Division that memorandum. reviewed Appellate affirmed, and Midler v. determination one judge dissenting. J. Heinowitz, Super. 20 N. 203 Div. Pursuant (App. 1952). to Rule 1:5-l we our own motion have (a) certified Division and also ensuing judgment Appellate judg 1, 1952, ment of the Division entered which Chancery April as its adopted judgment Division own.
127 upon for reversal argument Plaintiff’s Eafnir Thermostat Company Company Bearing the master’s contention that factual emphasizes items disturbed unless those items were not to be findings upon master erred shown that the “clearly satisfactorily” the rule his conclusions. This is reaching frequently stated in which to be our cases as ought weight by the trial his court to the master’s factual when findings report is submitted See Auto for confirmation. Oliver v. Co., Register 126 N. graphic 1939); 19 Eq. (Ch. J. Bruere, Sinnickson v. Adm’rs. 9 J. 659 & A. (E. N. Eq. 1855); Campanella v. 136 N. J. 111 Campanella, Eq. (E. A. 1944); Haulenbeck v. 407 Cronkright, 23 N. J. Eq. (Ch. affirmed 1873), 25 J.N. 513 & A. Eq. (E. 1874); Peoples Genden, Trust v. Co. Eq. (Ch. 1936), affirmed 121 N. J. & A. But find Eq. (E. such 1936). ings are not conclusive upon the trial as plaintiff court Holmes, seems to believe, Holmes v. 18 N. J. Eq. (Ch. The 1866). Appellate Division held properly that
“* * * a Master’s report is not conclusive and binding upon the court, but the may, court a Master’s upon report before coming him confirmation, examine the factual and, if it appears to the that the Master erred in his conclusions, it may proceed review facts and reach its own conclusions and determinations.” Midler Heinowitz, 6 Super. N. 363. Rule 3:53-5(b) pro viding the master’s shall be accepted “unless contrary to the evidence” de weight merely clares this long standing The principle. of Fed requirement A., eral Rule 53 (e) 28 U. S. (2), C. that the master’s find are ings to be accepted “unless erroneous,” clearly was not rule, carried into although proposed for adoption tentative draft of the rules. Tentative Rules Gov Draft All erning the Courts New Jersey, p. 201. judge aptly described the record made be fore the master as “a welter of conflicting and rec- testimony *5 by was said our examination we what adopt
ords.” After 359, 363-364: Division, 6 N. Super. «* * * us that here convinces examination of the record reliable; testimony plaintiff in was not too of both and defendant they purpose, fact, gets impression it their that when served one hesitancy prevaricating. were Master and the court no in had complete of the records a faced with situation where there were no years joint kept he had several venture. Plaintiff admitted that destroyed transactions, a but memorandum book of of the some action. Defendant’s about of the of this the time commencement difficulty many respects. incomplete find same We records were in appeal resolving raised this as issues did the trial court testimony unreliability and de of the because satisfactorjr complete Under records. fendant and the lack justified entirely Superior circumstances, these .Court reaching making independent its factual issues an review of the findings thereto, notwithstanding respect its own conclusions with were not in accord with the Master’s.” evidence, the its analysis
Upon independent findings with the court’s Appellate Division concurred evidence, unanimously as as the believable supported by item, dis judge the Eafnir and with one Company Bearing In item. Company senting make case we see no reason to the circumstances of this own of fact. findings lower of two
When there are concurrent judgments a will fact, of last resort courts upon pure questions of facts finding make an ordinarily independent of justice. a manifest showing miscarriage absence Jur., Error, 474. We have the p. Am. sec. Appeal to make :52-1) under see Rule (and Rule power 1:2-20(a) cause on a review of any new or amended determined the verdict of issues of fact not .involving in our sound discretion permissive but its exercise jury, case. Rule particular where to do required Cf. Co., :81-13; Trucking 3 3 N. J. 42 Temple (1949) Storch opinion). (concurring how.ever, after lower courts have con two
Ordinarily, and have reached sidered the facts concurrent *6 thereon, this court will have the to make a new not occasion and independent unless there is such error finding palpable in the concurrent such clear otherwise of showing or a a us is neces miscarriage by as that new finding to serve essential sary Scarborough ends of justice. Cf. Inc., v. Apartments, City 9 N. J. 182 Englewood, (1952). The two-court rule has been by followed United long States Supreme Court which will not “undertake to review concurrent two the absence by courts below very a obvious and Gra exceptional showing of error.” Co., ver Tank Air Mfg. Co. Linde Products 336 U. S. 271, 275, 93 L. 5 Ed. 677 Moore’s Federal (1949); Practice ed. (2d 2690 et 1951), p. seq.
Our new after the judicial structure is modeled federal court system. too, Our system, appeal one as contemplates a right to court of This is general appellate jurisdiction. afforded usually in the Appellate Division of Superior this, Court. A further in the appeal only court is allowed exercise of our discretional unless the power of certification case comes within one of the limited number of situations for which an to this appeal right expressly VI, V, allowed by Article Section Con paragraph stitution 1947. See also Rule 1:2—1. exceptions include the case where there is dissent
in the Division. Nevertheless, alone, the standing appellant fact that the for that reason is assured of hearing here does not to avoid the operate application of two- court rule if we see fit to 9 it. In re apply Hopper, Cf. The essential (1952). remains whether inquiry palpable underlies error the concordant of the two lower judgments courts, or whether for other reasons there a clear has been miscarriage of This justice. has been the rule of prac long tice followed in the House of Lords a dis notwithstanding sent in the intermediate court. Devi v. appellate Roy [1946], 508; A. C. Yachuk v. Oliver Blais A. Co. C. [1949], Eng. All L. R. that A. 2d 111. test we dis By cern in this record to nothing require or justify making Com- Pafnir Bearing
an. either the independent finding upon item. Company item the pany or from depart instant case to Uor is there reason in the any $4,- finding the two-court rule as to the concurrent against profits advanced 244.20 advanced to reserved expressly This issue of fact was not as wages. by determination order of reference for has finding ample support court. The concurrent and will be disturbed. evidence the record reasons interest. The
Plaintiff was not allowed “The are: interest denying the "trial judge time, has been for considerable litigation question pending *7 equally are of too much and the proofs help litigants not is the reasons denied.” at fault —these are interest briefly an in the of taking Whether not interest will be allowed or matter en a venture is a account between to parties joint Buck the sound of the trial court. tirely within discretion Ludlum, & A. We 1878). 29 N. J. Eq. (E. ingham that there in the Division Appellate concur conclusion of instance that the trial court’s dis was no this showing a result We reach similar mistakenly cretion was exercised. the additional $1,000 to the pay direction that plaintiff Plaintiff’s brief $2,000 allowed the master. concedes fee to a within was matter that the of the allowance apportionment the Appel the trial Like judicial judge. discretion of Division, to conten support plaintiff’s late we find nothing dis consonant with ruling judicial tion not cretion. entered February of the Division judgments 1952, 1950, 13, and the of the and March judgment 1952, are affirmed. April Division entered
Chancery Rule as amended 1:2-20(a) J. (concurring). Bükging, involving a review cause any “On provides: June the verdict of new or jury, of fact not determined issues made, shall regard of fact be but due may amended findings to trial court judge opportunity be to * * is be credibility power witnesses This to exercised to extent re- may such as the interests of quire. duty Rule 3:81-13. It is our function Compare to make our considered to findings according judgment, and in re- so is for us to due doing mandatory only give gard to the of the trial court to opportunity judge credibility of the A witnesses. lower finding court-, trial or will be disturbed on appellate, ap- not lightly peal to court but' this rule no higher appellate imposes restraint on the full power of the to ascertain appeal investigation analysis of the evidence what the facts are and whether the An is consistent therewith. general finding intermediate appellate court has no observe to opportunity the witnesses and it follows that its should fact not be binding considered as us under the upon perti- above nent portion of Rule is to that we 1:2-20(a). This say do not full give and respectful consideration to the views expressed, law, on both fact and by the lower and ap- pellate courts. The effect of the concurrence two lower courts in factual imbue with to us caution and cause to study us their assure order to expressed thought ourselves that we have exhausted avenue or every approach at hand. problem
I am in accord with the result reached the majority opinion this court.
Heher, in I in (dissenting part). concur the reason- ing and the conclusion the of dissenting opinion of -Judge Bigelow in the Appellate Divison.
The master properly defendant and surcharged credited the venture joint sales account with as $10,599.39, the value of miscellaneous material scrap purchased for the ac- joint count from the Bridgeport Thermostat The evi- Company. - dence establishes that the material came into defendant’s possession; defendant, who also keep undertook to the account, of has the of books burden for the accounting prop- erty. He is accountable as a fiduciary. R. S. 42:1-21.
132 the fidu of
Doubts from an imperfect performance arising the are to be resolved ciary’s duty against account not to Ackerman, (Ch. 495 Eq. beneficiary. Blauvell v. It fol A. 1874). 25 N. J. 1873), (E. affirmed Eq. interest. lows that the should surcharge carry have at- It the majority would seem that brothers of my concur- Division’s to the Appellate tached undue significance court, and have the trial the fact made by rence in findings rule 1:2-20 This of Rule (a). modified the thereby operation issues of fact involving for “a review of cause provides any making and the the jury,” determined verdict of to serve “new fact” where required or amended The re- the individual case. the ends of essential in justice has been done view is to discover whether necessary and, cor- negative, where that resolved inquiry this without to regard rective is to be And process applied. whether have two lower tribunals concurred rule. It was obviously is the fact. Such essence determination of designed to substantial error remedy is the same in the appel- facts. The assessment standard tribunal, shall late due be regard court as in but of the trial court to judge to opportunity Weber, of the witnesses. credibility Compare Hager relating N. J. 201 where the (1951), companion provision was that the verdicts was considered and the jury holding as Constitution review the facts well provides law with the function of an in accordance historic “appeal.” fact,
As issues has not sus- remaining tained the burden of proof. circumstances,
In the I to assess inequitable plain- deem $1,000 tiff with of the additional allowance to the master. I modify judgment accordingly. would J.,C. in this joins dissent. Vandeebilt, Burliwg, J., concurring result. *9 For Oliphant, Wacheneeld, Bur- affirmance—Justices
ling and Brennan —4.
For Justice Vanderbilt and Justice modification —Chief Heher —2. McFEELY,
IN THE MATTER OF THE ESTATE OF MARY DECEASED. Argued June 1952 Decided June 1952.