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Cerniglia v. City of Passaic

Decided: May 16, 1958.


Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.


Petitioner appeals from a County Court judgment reversing a determination and award in petitioner's favor by the Workmen's Compensation Division and ordering that the petition be dismissed.

The County Court's order of dismissal was dated November 21, 1957 and filed the same day. On December 16, 1957 there was filed in the Superior Court Clerk's Office a petition for leave to appeal in forma pauperis (Docket AM-50-57). As a matter of courtesy -- such petition is an ex parte matter and does not require notice to opposing counsel, R.R. 1:2-7(a); R.R. 2:2-5 -- petitioner served notice of motion for leave to proceed as an indigent, dated December 26, 1957, upon counsel for respondent. Thereafter, an order granting leave to appeal in forma pauperis , dated January 10, 1958, was filed on January 13, 1958. Notice of appeal was then filed on January 28, 1958.

Respondent contends, preliminarily, that the appeal should be dismissed as out of time, apparently under the misapprehension that December 26, 1957, the date on which it was served with the notice of motion, was the actual filing date of the petition for leave to proceed as an indigent. The point is without merit. Only 25 days elapsed from the County Court's order of dismissal to the filing of the petition for leave to appeal in forma pauperis. The running

of the usual 45-day period for taking the appeal, R.R. 1:3-1(b), was tolled during the pendency of the petition, and started to run again on January 10, 1958, the date of the determination of the application, R.R. 1:3-3(b). The notice of appeal was filed 18 days later, so that only 43 days of the permitted 45 had expired.

At the heart of this appeal lies the question of whether petitioner was in the employ of respondent at the time of the accident. We turn to the operative facts.

Prior to 1952 there were no suitable baseball recreational facilities for boys between the ages of 12 and 15 in the City of Passaic. There was a Little League for those under 12, and adequate facilities for those over 15. Thomas Cavanagh, the city recreation director, discussed the matter with Commissioner Cruise, Director of Public Parks and Public Property of Passaic, and the latter approved the setting up of a local Little Bigger League to serve boys in the 12-15 age group. However, Cruise specifically told Cavanagh there was no money in the budget to support such a special program, and unless funds could be raised by voluntary charitable contributions the project could not be undertaken.

Before the beginning of the 1952 baseball season Cavanagh got in touch with some civic-minded citizens who contributed money for the purchase of uniforms, bats, baseballs, and other needed equipment. Incidentally, this money was not sufficient to defray all expenses, and additional funds to meet the deficit were thereafter obtained by "passing the hat" at each game.

The Little Bigger League was in operation in 1952. A few full-time Recreation Department employees served as managers for some of the teams as part of their employment, since in any event they had to be at the parks during their summer schedule. In addition, a number of public-spirited citizens volunteered their services as managers or coaches for the remaining teams. None of them expected to be compensated for his services; in fact, it was definitely understood that no volunteer manager was to receive pay

for his time and effort. It should be mentioned that umpires (whose services could not be obtained gratis) were paid out of monies allocated to the Recreation Department, since the voluntary contributions of sponsoring citizens and monies collected at games did not meet league expenses. Cavanagh acted as executive director of the league and was in full charge of its operation, under the authority given him by his superior, Commissioner Cruise.

Petitioner's connection with the Little Bigger League began in 1953 when the manager of the team on which his son played was unable to continue in that capacity. Petitioner sought out Mr. Cavanagh and volunteered his services in managing the team. Like the other volunteer managers, he neither sought nor was allowed any payment or other consideration for his activities as manager; his name did not appear, either directly ...

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