92 N. J. L. Bd. Ed. W. Paterson v. Bd. Ed. Little Falls. On certiorari. Before Justices PARKER and MINTURn. For the prosecutor, Michael Dunn. For the respondents, Jacob Willard De Yoe and Edgar A. De Yoe. The opinion of the court was delivered by PARKER, J. The matter sought to be reviewed is the ruling or order of the state board of education substantially affirming the decision of the commissioner of education in a dispute between the board of education of West Paterson and the board of education of Little Falls with relation to the apportionment and payment of a deficit on school account existing at the time of the separation of West Paterson borough from Little Falls township. The separation took place by act of the legislature in 1914. Pamph. L., p. 87. The School act provides by section 33 what is to be done when a new school district is created-first, in relation to the attendance of the children and control of school buildings and payment of expenses until the end of the current school year, and secondly, how the surplus is to be divided at the end of that time. As to this, the act provides that in case there shall be any balance at the end of the school year in the hands of the custodian of school moneys of the original district, said custodian shall certify to the county superintendent of schools the amount of the balance, what portion was received from state appropriation, state school tax and interest of the surplus revenue, and what portion was received from district school tax; and that the county superintendent shall thereupon di vide between the districts the part of the balance arising from state appropriations, state school tax and interest of the surplus revenue, on the basis of aggregate attendance of pupils, and that part of the balance arising from the district school tax on the basis of the respective ratables of said district. It Bd. Ed. W. Paterson v. Bd. Ed. Little Falls. 92 N. J. L. will be observed that this section says: "In case there shall be any balance at the end of said school year in the hands of the custodian," but that there is no provision, expressly or by implication, with reference to a deficit. In the case at bar, the ratables of the two districts were settled to the satisfaction of both districts at thirty per cent. for West Paterson and seventy per cent. for Little Falls; and on that basis Little Falls having, through its custodian, ascertained that there was a deficit and its amount, sent a bill for thirty per cent. of that amount to the new district of West Paterson with request for payment. Apparently, there was no ascertainment of what part of the deficit was on account of state appropriation, &c., and what part on account of district school tax; but, in view of the result we have reached, this is unimportant. Payment having been refused, the matter was appealed to the state superintendent of public instruction, who decided that as West Paterson would have been entitled under the statute to thirty per cent. of any surplus, that district was in justice required to bear thirty per cent. of the deficit, and this decision was substantially sustained by the state board of education. Whatever the natural jus We think that this was error. tice of the case may seem to be, it is a matter which is regulated entirely by statute, so far as there is any regulation, and where the legislature has failed to provide for a contingency such as this, it must be either regarded as a casus omissus or else the conclusion must be that the legislature, having contemplated the contingency of a deficit, chose to leave it where it originated, viz., as an indebtedness of the original school district. Section 34 should be read in connection with section 33. It provides that in any new school district the board of education becomes vested with the title to all school property, real and personal, in such district, and if for the erection, repair or purchase of any such property there shall be an indebtedness for which the board of education of the original school district shall be liable, the said indebtedness shall be assumed by and become the obligation of the board of educa 92 N. J. L. Bd. Ed. W. Paterson v. Bd. Ed. Little Falls. tion of the new district, and if the old district pays the indebtedness, it may maintain an action against the new district therefor. And this provision is made without reference to any equity of the case arising out of the possible fact that the school buildings and property remaining in the original district had been completely paid for with moneys partially collected from citizens of the territory comprised in the new district, and that the latter is loaded down with a large debt on the schools taken over by it after having contributed substantially to the payment for schools in which it loses all interest upon separation. Such a condition seems, in fact, to exist in the present case, for the district of West Paterson has been required to assume a debt of some $26,000 on one of the school buildings taken over. Our conclusion, on a careful examination of the statute, is that the rights and liabilities of the two districts are to be settled by a reference to the act, and that alone, and as there is no provision therein for the apportionment of a deficit, the district of West Paterson is not liable for any part thereof. As to the interest on the school debt which was transferred to West Paterson, paid during the school year, and which amounts to $585, we consider that that forms part of the deficit, as it belongs to the current expense of the school year and is not to be considered as an indebtedness for the erection, repair or purchase of school property in the sense contemplated by section 34 of the act. Concluding, as we do, that the borough and school district of West Paterson are not liable for any portion of the claim as made, the decision of the state superintendent and of the state board of education will be set aside. ESTHER BURNS, RESPONDENT, v. THOMAS A. EDISON, PROSECUTOR. Submitted December 5, 1918-Decided February 18, 1919. 1. Whether an agreement to pay the statutory compensation for death under the Workmen's Compensation act should be in writing to satisfy the statute of frauds, in view of the provision that compensation is terminated by death of a dependent or remarriage of a widow, quare. 2. The procedure for recovery of compensation under said act is not applicable to cases where the suit is to enforce the terms of an agreement to pay stipulated sums, made after the accident. 3. An agreement to pay compensation, made after the accident, is evidential of the occurrence of an accident and of the right to recover compensation therefor, but not conclusive evidence nor an estoppel to disprove the accident, if made within a year thereafter; and in a compensation suit it is error to exclude proof in denial of the occurrence of the accident, simply because of the existence of such an agreement. On certiorari to award in matter of workman's compensation. Before Justices PARKER and MINTURN. For the prosecutor, Kalisch & Kalisch. For the respondent, Arthur B. Seymour. The opinion of the court was delivered by PARKER, J. The principal difficulty in this case arises out of the fact that though the petition for compensation counted on a fatal accident alleged to have arisen out of and in the course of the employment of petitioner's husband, the proof was confined to an alleged agreement for compensation between petitioner and one Henderson, conceded to have been the authorized agent of the employer, prosecutor. Prosecutor's counsel on the hearing undertook to show by testimony that death had not occurred by reason of any such accident as claimed, but by reason of an occupational disease. The court overruled the offer on the ground that the agreement estopped the employer from showing such facts, because it had been accepted and acted on and the statutory year had run, so that (as he held) a claim based purely on the accident was barred. It is not quite clear whether the award was based on the agreement as a contract or on a right of action under the statute of which the contract was evidential; but the question of limitation was apparently the factor which decided the court in favor of a binding estoppel and led to the exclusion of the evidence. In either event, however, there was harmful error which requires a reversal. The course of the proceeding was as follows: The petition, filed September 27th, 1917, counted on an accident occurring September 2d, 1915, over two years previously, and alleged that about October 1st, 1915, an agreement had been made between petitioner, as widow, in behalf of herself and one child, for a weekly payment of $6.06 during the three hundred weeks prescribed in the statute (Pamph. L. 1911, p. 139,12; Pamph. L. 1913, p. 302; Pamph. L. 1914, p. 499); that thereunder payments were made for seventy-eight weeks and then ceased, and prayed an award of compensation. The answer set up, in addition to denial of the accident and of the agreement, that the contract if made was one not to be performed within a year and was not in writing. The finding of the court on the facts was that deceased was at the time in question in the employ of prosecutor earning $15.15 per week; that he sustained an accident, describing it as in the petition, and that said accident arose out of and in course of his employment; that it resulted fatally; that prosecutor had due notice, &c., and awarded $6.06 for three hundred weeks less moneys already paid. The award makes no mention at all of any agreement as a basis of recovery. At the trial the only proof was, in addition to formal matters, that deceased worked for prosecutor at the time of his death; that a claim for compensation was made and an oral agreement entered into for compensation, under which |