Opinion
08-01-1939
RAMBAUT v. OTTO et al.
Chauncey A. Plyley, of Ridgewood for complainant. Kimmel & Kimmel, of Paterson (David Kimmel, of Paterson, of counsel), for defendant Electric Specialty Co., Inc. Doughty & Dwyer, of Ridgewood, (Michael A. Dwyer, of Ridgewood, of counsel), for defendant Irving Greenlaw. Henry Marelli, of Paterson, for Ruth K. Boyd.
Syllabus by the Court.
1. A finding of fact by a Special Master will be sustained except upon clear proof that his finding is erroneous.
2. The Court will be liberal in granting a remedy to a person in the position of a stake holder so as to prevent the possibility of double payment.
Action by Margaret Rambaut against Gerhard E. Otto, etc., and others for a determination of the rights of the parties to a sum which the complainant deposited in court. On exceptions to the report of a special master.
Report modified and, as modified, confirmed, and a decree advised accordingly.
Chauncey A. Plyley, of Ridgewood for complainant.
Kimmel & Kimmel, of Paterson (David Kimmel, of Paterson, of counsel), for defendant Electric Specialty Co., Inc.
Doughty & Dwyer, of Ridgewood, (Michael A. Dwyer, of Ridgewood, of counsel), for defendant Irving Greenlaw.
Henry Marelli, of Paterson, for Ruth K. Boyd.
LEWIS, Vice Chancellor.
This matter is before the Court on exceptions to the report of a Special Master, to whom reference was made to determine which of two of the defendants, namely, Irving Greenlaw and Electric Specialty Co., Inc., was entitled to a fund deposited in court by complainant. Complainant contracted with defendant, Otto, for certain improvements on her house, including among other things, an oil burner installation. Otto was paid for his work, except for the oil burner, and it is concerning the value of the oil burner that the present controversy arose. According to the findings of the Special Master, Otto made a contract with Greenlaw for the furnishing and installation of the oil burner. Otto was apparently financially embarrassed at the time and Greenlaw undertook to supply and install the burner only on condition that he would receive the cash therefor from Otto on delivery and prior to installation. When Greenlaw arrived at the premises with the burner, Otto failed to pay him therefor and Greenlaw thereupon refused to go ahead on his contract. The Special Master found as a fact that Otto abandoned his contract with complainant.
The testimony is conflicting as to just what took place between complainant and Greenlaw. It is Greenlaw's contention, according to the Master's Report, that complainant promised not to give Otto any more money until she paid him (Greenlaw). The Master found that while complainant denies that she agreed to pay him, she did accept delivery of the burner and permitted Greenlaw to perform the work of installing the same; and therefore received the benefit of the work so that she became liable to him for an implied aspaytwice for the oil burner. Under these circumstances she had a right to bring this suit. Camden Safe Deposit & Trust Company v. Barbour, 117 N.J.Eq. 401, 176 A. 313, 97 A.L.R. 993. There the court says: "The complainant bank has no interest in the outcome of the litigation save to pay its debt to the person entitled thereto. There is no reason why it should be vexed by various suits * * * instituted against it, nor is there any reason why it should take the hazard of determining to whom it owes its debt."
It is further contended that the bill should be dismissed on the ground of collusion because complainant and her solicitor participated in the hearing before the Special Master. The Master, in his memorandum, stated that in his opinion there was no collusion; and I cannot find as a matter of law that mere participation in the trial constituted collusion in the absence of any evidence of bad faith or partiality between the rival claimants, particularly as it would appear that complainant and counsel were requested to be present at the instance of the Master.
The finding of the Master as to the questions of fact involved will not be disturbed in the absence of a showing that there was no justification for these findings. The burden of showing error in his findings is upon the exceptant and this burden has not been met. National Bank of Metropolis v. Sprague, 23 N.J.Eq. 81; Fish v. Harrison, 87 N.J.Eq. 103, 100 A. 185.
In my opinion the Master is in error, however, in recommending that complainant be required to pay to Greenlaw his expenses in his action at law, together with the expenses of the reference and costs to Greenlaw in this suit. It appears that complainant has acted in good faith and deposited the amount of her liability in this suit for determination as to who should be rightfully entitled to it, after she was beset by two actions at law for the same obligation. Under these circumstances, I think her liability should be limited to the amount deposited in court and the expenses of the reference and costs of defendant, Greenlaw, should be paid from this fund. With this modification the Report of the Special Master will be confirmed and a decree advised accordingly, directing payment to Greenlaw of the fund in court and restraining both actions at law.