What acts of petitioner constitute the election which should bar this New Jersey proceeding? Certainly not the original application for compensation in New York, for that application was dismissed, and it now appears erroneously, for lack of jurisdiction, and, under such circumstances, it is clear that she has not made a final and binding election such as would preclude her applying to the tribunal in fact possessing jurisdiction. 15 Cyc., p. 262, and cases cited; 20 Corpus Juris, p. 37, and cases cited.
If a mistake of a petitioner in applying to the wrong tribunal for relief would not preclude application to the right tribunal (see 15 Cyc., supra) certainly the erroneous finding of no jurisdiction by the tribunal applied to could not have a greater and more binding effect upon the petitioner. And even a correct finding of no jurisdiction would not preclude application for relief to the tribunal possessing jurisdiction. 20 Corpus Juris, p. 27.
The only other conduct of petitioner which is relied upon to constitute an election is her request to the New York Commission after someone unauthorizedly had applied for a re-opening of the case, and after the institution of the New Jersey suit to stay the New York proceedings until the completion of the New Jersey proceeding, so that petitioner might obtain in New York the difference between the New York compensation allowance and that of New Jersey, and clearly such conduct, which is, in effect, an election to proceed in New Jersey on the main case, cannot be held to constitute an election to proceed in New York.
I, therefore, find that the petitioner is entitled to compensation for three hundred weeks at the rate of twelve dollars per week, and to one hundred dollars, the statutory allowance for funeral expenses, and I will allow counsel for the petitioner a counsel fee for services in this Court of two hundred and fifty dollars.
A determination of facts should be prepared by counsel for the petitioner, submitted to counsel for defendant for inspection, and then transmitted to me for signature.
STATE v. ASH.
(Essex Common Pleas Jan. 6, 1922).
Driving Automobiles Under Influence of Liquor--Review of Evidence Below.