N.J. Constitutional Convention: Vol. 4, Page 371


STATE OF NEW JERSEY CONSTITUTIONAL CONVENTION OF 1947
COMMITTEE ON THE JUDICIARY
Wednesday, July 9, 1947 (Morning session)

I selected, I selected in one evening's work in my office, and as you see, there are quite a few. In my own personal practice, which isn't tremendously extensive, I have had a great many cases involving the same problem. I have a problem on my desk now. I have withheld filing a bill in equity for a declaratory judgment on a health and accident policy. I have held it up for the past four weeks, exploring cases in New Jersey to make sure I am going to be in the right court after I start. If I could bring it in the federal court I would be delighted, but unfortunately it's a very small health and accident policy. The whole policy, in case of death, only pays $2,000, and the man's health and accident benefits are only $20 a week. So I have a very small amount involved, and I can't go into the federal courts because it isn't $3,000. And yet, I must go into court at my peril and find out whether I am in the right court.

MR. WINNE: What you have said is very interesting to me. I think that your experience is quite extensive in insurance policy work where the insurance companies contest for one reason or another - cases where there might be fraud involved, which is quite difficult and quite different. I don't believe the average practitioner runs into any difficulty at all in being in the wrong court. I have been practicing law since 1912 and I haven't had such difficulty. I don't believe I ever had such a case in our office where we had any trouble at all - of cases started at law.

MR. GAULKIN: Well, Mr. Winne, that's why I cited the case of Richeimer v Fischbein, and the other list of cases. Those cases did not involve insurance, but involved real estate transactions, which, as you know, are very much an every-day proposition. Then there are the declaratory judgment cases. If you want the terms of a will, or deed, or even a union contract - one of our most interesting cases on declaratory judgments was a situation where a labor union asked for a declaratory judgment whether their union contract was or was not in force, so that the local union would know whether to go out on strike or abide by the contract, or what. In these cases you have to figure out, at your peril, where to start the action. And then there's Mr. McCarter's case that I mentioned before, Haskins v Ryan - Mr. McCarter was an able lawyer and there's no question about his knowing the procedure; and all those cases that I mentioned simply by name and citation, which I think the stenographer took, none of those cases were insurance cases.

VICE-CHAIRMAN: Mr. Gaulkin, we had some figures submitted by the Essex County Bar Association, which indicated that the reported cases involving a jurisdictional question were about one-third in the most recent volume. Would that approximate your estimate?

MR. GAULKIN: I believe that would be a fair estimate.

VICE-CHAIRMAN: Any further questions of Mr. Gaulkin? If


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