state commerce, compensation cannot be awarded his administratrix under the New Jersey Workmen's Compensation Act, the federal Employers' Liability Act being exclusive in such case. Rounsavillo v. Central Railroad Co., 90 N. J. Law, 176, 101 Atl. 182; Erie Railroad Co. v. Winfield, 244 U. S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662.

adversary), and went forward with his proof, | 780, 59 L. Ed. 1298. Since the decedent at did not prejudice the petitioner, since it ap- the time he was killed was engaged in interpears that, both before and after the company's proof was put in, full opportunity was given the petitioner to produce testimony of her own upon the matter in controversy. Moreover, it is quite apparent, considering the entire statement of the attorney of the railroad company, that he did not admit, nor could his adversary suppose he admitted, that the decedent was engaged in interstate commerce, since that was distinctly denied in the company's answer, and by the very statement in question, and stood out as . the only matter in controversy.

The judgment of the Supreme Court will be affirmed.

DAN et ux.

Nov. 17, 1919.)

(91 N. J. Eq. 104)

(Syllabus by the Court.)

[3] We agree with the Supreme Court that the proofs demonstrated conclusively that the DAVID MAYER BREWING CO. v. SHERIdecedent was engaged in interstate commerce at the time of his injury and death. He was the baggage agent at a station on the com- (Court of Errors and Appeals of New Jersey. pany's railroad in this state. His duties consisted, among other things, in meeting trains of the company, both interstate and intrastate, stopping at his station, receiving from 1. FRAUDULENT CONVEYANCES 278(2)—EVIthem such baggage and mail as there was to leave there, and delivering such baggage, railroad mail, and the like, as was to be put When real estate is purchased by a wife aboard the train. In the performance of this during coverture from a stranger, and a creditor duty, he met a train of the company which claims it was paid for wholly or in part by had come from Binghamton, N. Y., and was moneys of the husband and in fraud of crediconsequently an interstate train. He receiv-tors, such creditor has the burden of proving

DENCE THAT PROPERTY PURCHASED BY WIFE
WAS PAID FOR BY HUSBAND.

that fraud.

ed some letters and papers from that train,
and delivered some others. Apparently, there 2. FRAUDULENT
was no baggage or express matter discharged
or taken aboard. The train started, and de-

cedent ran alongside the train holding on by
a handrail while speaking to a trainman in
the performance of his duties. While so run-
ning, he struck a snow bank and was thrown
under the wheels and killed. These were the
ascertained and undisputed facts. The case
did not call for the weighing of testimony,
but only for the application of the law to the
ascertained facts.

CONVEYANCES mm 299(12)— PURCHASE OF PROPERTY BY WIFE WITH MONEY OF HUSBAND.

ing that the bulk of moneys deposited by a marEvidence examined, and held to justify findried woman in bank and later used as a cash payment on real estate purchased in her name, was derived from a saloon business conducted by her husband in his own name, and were his moneys.

Appeal from Court of Chancery.

fendant husband

John J. Fallon, of Hoboken, for appellants. Harlan Besson, of Hoboken, for respondent.

Suit by the David Mayer Brewing ComIt seems to have been argued in the Su-pany against John J. Sheridan and wife, to preme Court that he was not engaged in an impress the lien of a judgment against deact of "interstate commerce," because it is not shown that any of the articles delivered From a decree advised by the Vice Chancelupon certain property. or received came from out of the state or was lor in favor of complainant, defendants apgoing out of the state, or that the conversa-peal. Modified and affirmed. tion was upon an interstate matter. But that is not the test. It was plainly part of his interstate duty to meet the train and see if anything of an interstate character had to be done as respected that particular stop, and such interstate relation to the train continued as long as the communication between him and the train was kept up. It cannot be said that he was engaged in intrastate commerce for the instant he might be receiving a piece of intrastate baggage, and changed to interstate commerce with the next piece. Flynn v. N. Y., S. & W. R. R. Co., 90 N. J. Law, 450, 101 Atl. 1034, affirmed 91 N. J. Law, 693, 103 Atl. 1052; New York C. & H. R. R. Co. v. Carr, 238 U. S. 260, 35 Sup. Ct.

PARKER, J. The suit is to impress the lien of a judgment recovered by respondent company in 1908 against appellant John J. Sheridan, for $513.17 damages and costs, upon a saloon and residence property known as 500 Ferry street, Hoboken, occupied by said Sheridan as a saloon on the ground floor, and above by himself and his family as a dwelling. The legal title to the property. stands in the name of the wife, to whom it was conveyed by a third party in 1915.

(108 A.)

The purchase price was $11,000, on which cept her daughter and the daughter's hus$6,000 was paid in cash, the remainder be- band at $8 per week. ing left on mortgage. The cash payment was made with funds drawn from two bank accounts standing in the name of the wife, and the claim of the complainant is that this fund was wholly or mainly composed of money turned over to her by her husband out of current receipts in his saloon business, admittedly conducted in his name and by him in fact. If this claim is in accordance with the facts, it is obvious that pro tanto the property is that of the husband so far as relates to pre-existing creditors, and should therefore be subjected to the complainant's judgment. The Vice Chancellor held that the moneys in bank were those of the husband, and found for the complainant.

[1] In deciding the case he held that it was within the general rule laid down in 20 Cyc. 754, that

"In a contest between the creditors of a husband and his wife, if the wife claims ownership during coverture, the burden of proof is on the wife to show that the purchase was for a valuable consideration paid by her out of her separate estate, or by some person other than her husband."

The Hoboken saloon was apparently quite successful. Sheridan's bank account for July, 1908, is in evidence, and shows total deposits of over $1,200, not claimed to come from any other source. It stops abruptly July 28, 1908; complainant's judgment was entered November 10, 1908. The case is silent on financial conditions until January, 1911, except that Sheridan paid his beer account regularly, $60 to $80 a week. According to the brewery collector, the payment was in cash and checks of the railroad company (no doubt employés' checks cashed at the saloon-a common practice), and he got his money for the beer sometimes from Sheridan, sometimes from the bartender, and sometimes from Mrs. Sheridan, either upstairs in her rooms or "downstairs when she was dressed to go out, and perhaps had the money rolled up in a piece of paper. Q. She had the money in a piece of paper? A. Yes. She brought that down from upstairs, and she paid the beer bill with that, and she had some check in that perhaps."

The brewery account, which was put in evidence in supplementary proceedings and seems to be treated as part of the case, shows October, 1912, and in June 1915, up to the 132 half barrels of beer sold Sheridan in 25th, 125 half barrels. In that month he had paid $437.79, and still owed $178.25, a total of $616.04. 132 half barrels a month make about 41⁄2 per day, including Sundays; and this seems to indicate a business of much activity and probable profit. In May, 1915, the brewery loaned without security $1,000 on a note signed by John J. Sheridan to the order of the brewing company and indorsed by Bridget. The check was payable to the order of John J. Sheridan. The note was paid off at the rate of $100 a month. Defendants claimed that this loan was specifically made to the wife, but at least the documents indicate the contrary.

But we think this language, as indicated by the context and by the decisions cited, relates to cases where the title is derived by the wife through the husband. Such was the situation in all the decisions cited from this state in support of the text. Ruppert v. Hurley (Ch.) 47 Atl. 280; Post v. Stiger, 29 N. J. Eq. 554; Cramer v. Reford, 17 N. J. Eq. 367, 90 Am. Dec. 594; Adoue v. Spencer, 62 N. J. Eq. 782, 49 Atl. 10, 56 L. R. A. 817, 90 Am. St. Rep. 484. But where the title comes directly to the wife from an outside source the burden of proof is the other way, and the creditor must show that the consideration came from him either directly, or was money or property settled by him on his wife in hindrance or fraud of creditors. Coyne v. Sayre, 54 N. J. Eq. 702, 36 Atl. 96. The question, then, would seem to be whether the evidence supports the decree when the correct rule as to burden of proof is applied. [2] The defendants were married about 1889, and the husband started in business in Jersey City. The wife, according to her testimony, kept three or four boarders at $5 a week. She also kept a small candy and notion store, and testified that this returned a profit of $10 a week. There were one or two other minor sources of income, besides housekeeping money contributed by her husband, and which of course was his. In 1904 the husband rented the Hoboken property now in question, moved his family in, and began a saloon business there. He maintained the saloon also in Jersey City until about the time when complainants recovered their judgment, when he gave it up. The When it is considered that Mrs. Sheridan wife had ceased storekeeping some time be- was depositing in bank an average of $200 fore, and kept no boarders in Hoboken, ex- per month for two years and $100 a month

From 1908 the husband kept no bank account; but beginning in January, 1913, the wife has had first one and then two. An examination of these shows that she deposited in one or the other, quite regularly, often every week, sums varying from $100 to $300, amounting: In 1911 to $1,400; in 1912 to $2,300; in 1913 to $2,296; in 1914, up to September, $700-in all, $6,696. In November, 1914, $2,600 was drawn out of one bank and $3,400 from the other, which make the $6,000 cash paid on the property. The brewery loan appears as a deposit May 20, 1915, and a draft May 28th.

In September, 1912, she purchased real estate at Keansburg for $1,500, $1,200 of which appears to have been drawn from the savings bank September 6th.

and son-in-law, $8, plus what her husband gave her for housekeeping, $12, allows of little margin after payment of food and clothing. There was an item of garage rent $7 a month. The total per annum is insignificant.

Allowing the wife $2,680 of the fund as proceeds of sale of her saloon, she seems entitled, as of the date of purchasing 500 Ferry street, to no more. Savings from the housekeeping money and board of the daughter and her husband belong normally to Sheridan. Garretson v. Appleton, 58 N. J. Law, 386, 37 Atl. 150. If the purchase be considered as hers, made in part with his money, the alleged renting by her to him and his payment of rent to her are at least colorable, and on that basis his creditors are entitled to look to an increment of his equity in the property by way of interest. For present purposes it is enough to say that he possesses an equity therein amply sufficient to satisfy complainant's claim. The result reached by the Vice Chancellor, i. e., that the land is subject to the lien of complainant below, is generally correct, at least to the extent of the proportionate interest represented by the husband's money paid on account of the purchase price. The decree, however, is not correct. It directs Bridget Sheridan to pay the complainant's claim

for a year and a half in addition, it is legiti- [ consisted of money derived from the saloon mate to ask where she obtained so much business, and that the cash payment on the money, and if her circumstances and station saloon property was made therefrom. The in life do not afford a reasonable answer, weekly board she received from her daughter and her own account of it does not commend itself as satisfactory, the inference is obvious that some one gave it, or most of it, to her. Her account is in our judgment quite unsatisfactory, and sufficient in itself to cast suspicion on her ownership. The proceeds of the little store and of keeping boarders in her early married life are unimportant and remote. She claims that she set up her brother Timothy in the saloon business, and let him have $1,400; this was while she was keeping her little store. His health failed, and he finally died, and she took back the saloon and resold it to another brother for $2,680, represented entirely by notes. He made a failure of it also, as claimed, and testified that he simply surrendered it back to her, and yet later began to pay the notes, which were of $50 each, and the last one was paid, as claimed, some time in 1915. The evidence on this phase of the case is most unsatisfactory, but, if accepted, leaves some $4,000 of the bank deposits to be other wise accounted for. There are only two deposits of $50 in the bank accounts, one on March 31, 1913, and one on November 5, 1914, so that, unless this brother paid two or four at a time, we must infer that Mrs. Sheridan added $50 from some other source to make a deposit of $100, and most of them are of that amount. It is unnecessary to multiply details. Tak- with interest and costs, and costs of the suping the evidence as a whole, the only reason-plementary proceedings, and a counsel fee, able conclusion is that Mrs. Sheridan was putting away money which some one was intrusting to her for that purpose. This conclusion reached, the whole situation points to her husband as that person. No one else is suggested or imaginable. He was doing a profitable business; he kept no bank account, no books of account; he seemed to be somewhat loose in business methods; she was obviously thrifty and saving; and he had a judgment against him for beer which he testified caused his customers to leave him and made him close the Jersey City saloon -a state of things not calculated to impel him to pay the judgment. His wife evidently received the weekly surplus. Sometimes she paid the beer bill, as we have seen: but the profits she put away in bank. Leaving of purchase, and that in default of payment the general burden of proof on complainant, the property be sold to pay such claim. we conclude that it has been satisfactorily this extent the decree should be modified; shown that the bulk of the bank deposits in other respects it is affirmed.

and that in default of such payment an execution issue against the premises in question. We do not think the costs of the supplementary proceedings are recoverable in this action; the statute provides that they shall be paid out of property recovered by the statutory receiver. C. S. p. 2252, § 26. More important is the form of the decree. It is erroneous to direct Mrs. Sheridan to pay her husband's debt. The proper course. after adjudging the amount of money belonging to the husband that went into the property, is to declare the complainant's judg ment with interest and the costs of the chancery suit a lien on the property not to exceed the ascertained interest of the husband therein, namely, $4,000 and interest from the date

To

(94 N. J. Law, 73)

OTMER V. PERRY.

(108 A.)

(Supreme Court of New Jersey. Dec. 15, 1919.) 1. PRINCIPAL AND AGENT 171(8)-EMPLOY

MENT OF ANOTHER THROUGH AGENT.

The fact that a contract for services was made with the employé by employer's daughter makes no difference in the legal status of the parties if the work was performed for the employer on employer's premises and paid for by employer's check.

2. MASTER AND SERVANT

367-WORKMEN's COMPENSATION ACT; WELL REPAIRER AN "INDEPENDENT CONTRACTOR," NOT "EMPLOYÉ."

One employed for a dollar an hour to repair a well, a work which took him some two hours, and in which he was injured, held to be an "independent contractor," and not an "employé," within Workmen's Compensation Act, 83, so as to be entitled to compensation.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Employé; Independent Contractor.]

3. MASTER AND SERVANT

362-WORKMEN'S

COMPENSATION; "CASUAL EMPLOYÉ." One employed for a dollar an hour to repair a well, a work occupying only some two hours, held a "casual employé," not entitled to compensation under the Workmen's Compensation Act.

was performed for the prosecutor, upon her premises, and paid for by her check.

The agency being proved, the principle is familiar that there was no need for ratification, for the act of employment thereby became the act of the principal. Qui facit per alium facit per se. The petitioner's employment was at the rate of $8 per day, and for that he was paid by the prosecutor for three days' service. At that point for some reason the prosecutor decided to discharge him, and take on another to complete the work; but becoming dissatisfied with the progress of the alternate, after some days, she discharged him and again took on the petitioner at the old rate or $1 per hour. The work occupied two hours of his time, for which he accepted the old pump in part payment. While working in the well, the pipe, which had been insecurely joined by his predecessor, slipped and permanently injured the index finger of the petitioner's hand. For six weeks his thumb and two adjoining fingers were disabled, and he was without the use of the hand for over ten weeks. The trial court awarded compensation for six weeks. No testimony of an adverse character was submitted by the prosecutor, but upon this writ the legality of the finding is contested, upon substantially two grounds: (1) That the petitioner was an independent contractor; (2) that the employment was of a casual nature, and not com

Certiorari to Court of Common Pleas, prehended by the statute. Ocean County. [2] The work which the petitioner conProceedings under the Workmen's Com-tracted to perform in this instance was of a pensation Act by Frank J. Perry, employé, distinct and specific character, in the execuopposed by Matilda Otmer, employer. Com-tion of which he was unhampered and unconpensation was awarded, and the employer brings certiorari. Judgment awarding compensation reversed.

trolled by the views and orders of an immediate superior; and when the work was executed the relationship of the parties arising out of the contract was at an end. In that

Argued before Justice MINTURN, sitting fact inheres the distinction which differentialone pursuant to the statute.

ates the work or employment of the ordinary servant from that of an independent contractKalisch & Kalisch, of Newark, for prose- or. The distinction in the relationship is thus

cutor.
Halsted H. Wainwright, of Manasquan, for
petitioner.

MINTURN, J. The trial court found that while the petitioner was at work, in the employment of the prosecutor, upon her property near Lakewood, he was injured in an accident which arose out of and in the course of the employment.

[1] The petitioner had been employed by the prosecutor, a few days prior to the accident, under a verbal contract, to repair a well upon the premises, at the rate of $8 per day. The employment necessitated the taking out of an old pump, and the substitution of a new one. The fact that the prosecutor's daughter made the contract with the petitioner can make no difference in the legal status of the parties, if, as appears to be the fact, the work

defined:

"The relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or in other words, not only what shall be done, but how it shall be done." 26 Cyc. 966, and cases cited.

Substantially the same criterion was applied in Prest-O-Lite Co. v. Skeel, 182 Ind. 593, 106 N. E. 365, Ann. Cas. 1917A, 474, as follows:

"Where an agreement provides for a result to be accomplished, but leaves to the person emwhich it is to be accomplished," the person so ployed the choice of means and methods by employed is a contractor, and the relation is "not that of master and servant, and the employer is not liable for the contractor's negligence."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 108 A.-24

the learned annotator in a foot note to Cock- (Court of Errors and Appeals of New Jersey.