text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, PLAINTIFF-PROSECUTOR, v. BENJAMIN F. WOODING, DEFENDANT.
    Submitted October term, 1926
    Decided January 19, 1927.
    Practice of Medicine — Defendant Contended That He Could Not be Convicted For Anything Other Than the Practice of Medicine and Surgery, and That Laws of 1915 Defining Practice of Medicine Could Not be Considered by the Court — This View Accepted by the District Court is Erroneous.
    On certiorari.

    Before Justices Black and Campbell.
    Eor the prosecutor, Edward L. Katzenbach, attorney-general, and Grover C. Richman, assistant attorney-general.
    For the defendant, Elmer W. Romine.

   Per Curiam.

The defendant in this case was charged with having violated section 10 of “An act to regulate the practice of medicine and surgery,” &c., approved May 22d, 1894 (Pamph. L. 1894, p. 454), as amended by act approved April 8th, 1921. Pamph. L. 1921, p. 702. The defendant was tried in the District Court of the city of Orange by the judge without a jury and found not guilty.

The writ of certiorari seeks to set aside the judgment of the District Court.

This case is distinguished from the cases Nos. 204 and 205 of the present term, in those cases, disputed questions of fact only were involved and we were unwilling to disturb the conclusions of the trial judge. But in this case, there is no controversy over the facts. The state produced as witnesses, Miss Emma Spruce, Mrs. Delia Orr, Mr. Wesley H. Bunce, Mrs. Sadie Britton. There was no attempt by the defendant, as shown by the record, to controvert or impeach these witnesses. The contention of the defendant being that he could not be convicted for anything other than the practice of medicine and surgerjq and that section 8 of the laws of 1915 (Pamph. L. 1915, p. 476), which defines the practice of medicine and surgery, could not be considered by the court.

This evidently was the view taken by the judge of the District Court. In this we think the court below fell into error. This raises a question of law as distinguished from a question of fact.

We think the undisputed evidence shows that the defendant was guilty of a violation of the statute, as decided by this court in many cases.

The judgment of the District Court of the city of Orange is reversed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    WALTER W. REID, Jr., ET AL., RELATORS, v. BOROUGH OF DEAL ET AL., DEFENDANTS.
    Submitted October term, 1926
    Decided January 19, 1927.
    Municipalities — Licenses—Hotel—Under Ordinance, Governing Body is Invested With Discretion — Mandamus, Accordingly, Cannot Issue — Even if There is no Discretion Under the Ordinance, Writ Must be Denied in This Case Because the Facts and the Law are Not Settled and Clear.
    On mandamus.

    Before Justices Black and Campbell.
    Eor the relators, Ward Kramer.

    Eor the defendants. William A. Stevens and William L. Edwards. ' ''
   Per Curiam.

This is a rule to show cause why a writ of mandamus should not issue commanding the borough of Deal, a municipal corporation, the borough commissioners and the clerk of the borough to issue a license or permit to the relators for the operation oí a hotel upon the property at the southwest corner of Ocean avenue and Roosevelt avenue, in the borough of Deal, pursuant to the terms and provisions of an ordinance of the borough entitled “An ordinance to license and regulate hotels and inns in the borough of Deal.” The granting of the writ is resisted. First, because the ordinance in section 6 provides, such application for licenses, “the same may be approved and allowed after the expiration of fifteen days from the date of its filing, and thereupon when such approval is endorsed upon such application,” &c.

This seems to invest a discretion in the commissioners; if so, a mandamus never issues when the subject if one of discretion. Uszkay v. Dill, 92 N. J. L. 327.

The board is not required to license any sort of a place that an applicant may wish to conduct. Even if there is no discretion under the ordinance, the writ must be denied in this ease because the facts and the law are not settled and clear; in such cases the writ is never directed to issue. Browne v. Lee, 98 N. J. L. 4; Borough of Secaucus v. Kiesewetter, 83 Id. 227.

The rule to show cause will be discharged and the issuing of a writ of mandamus denied.


text:
    MAX. MARGOLIS v. CITY OF ORANGE AND JOHN G. SCOTT, BUILDING INSPECTOR.
    Decided January 19, 1927.
    Zoning — Apartment-House in Residence District — Case Within Ignaciunas v. Nutley, 99 N. J. L. 389 — Peremptory Writ Awarded.
    On demurrer to return to alternative writ of mandamus.

    Before Gummere, Ohiee Justice, and Justices Trenchard and Minturn.
    For the relator, Howe & Davis.

    For the respondents, Walter Q. Ellis.

   Per Curiam.

The relator is the owner of a tract of land on the corner of Fourth and North Arlington avenues, in the city of East Orange. He applied for a permit to the building inspector for leave to erect a four-story brick apartment-house upon this tract. The building inspector refused to issue the permit solely because the zoning ordinance of the municipality fore-bade the erection of apartment-houses of the kind proposed in that zone, which is designated in the ordinance as a “Small Volume Residence District.” The case is controlled by the decision of the Court of Errors and Appeals in the case of State v. Nutley, 99 N. J. L. 389.

A peremptory writ will be ordered.


text:
    GUISPPE FIORE, RELATOR, v. THE MAYOR, ETC., JERSEY CITY ET AL., DEFENDANTS.
    Submitted October term, 1926
    Decided January 19, 1927.
    Zoning — Small Concrete Building to be Used For Storage of Ice In Residential District — Peremptory Writ Allowed.
    On application for mandamus.

    Before Justices Black and Campbell.
    Eor the relator, Philip F. Sauer.

    Eor the defendants, Thomas J. Brogan.

   Per Curiam.

In this case there is a rule to show cause why a peremptory writ of mandamus should not issue directed to the mayor, &c., Jersey City and the board of commissioners of Jersey City, compelling the granting to the relator of a permit to erect a one-story concrete building on the front portion of No. 79 Jordan avenue, Jersey City, New Jersey. The building to be thirty feet deep, twenty feet in width, fourteen feet in height, to be set back from the building line twenty feet, to be used for the storage of ice. The application was rejected on the ground that the land on which the building is proposed to be erected is located in a district zoned by the board for residential purposes. We think a peremptory writ of mandamus should issue as prayed for upon the condition that the relator comply with all the preliminary conditions, such as getting a permit from the superintendent of buildings or to file plans with such official as is required by the building code of Jersey City. Such will be the order of the court.


text:
    NEW YORK AND NEW JERSEY WATER COMPANY ET AL., PROSECUTORS, v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL., DEFENDANTS.
    Submitted October term, 1926
    Decided January 19, 1927.
    Public Utilities — Question Whether Prosecutors Were Public Utilities Within the Meaning of the Act Relating to Such Business — Held, That They Were.
    On certiorari.

    Before Justices Black and Campbell.
    For the prosecutors, McCarter & English.

    For the defendant board of public utility commissioners, Thomas Brown.

    For the town of Kearny, John H. Cooper and Merritt Lane.

   Per Curiam.

The certiorari in this case brings under review an order of the public utility commissioners, dated December 15th, 1925, wherein the board determined “that the New York and New Jersey Water Company and the New Jersey Suburban Water Company are public utilities within the jurisdiction of the board as defined by statute,” and denying the motion of the prosecutors to dismiss the petition of the defendants, the town of Kearny and the town of Harrison.

The fundamental question involved is whether the prosecutors are public utilities within the meaning of Pamph. L. 1911, p. 376, § 15, as amended by Pamph. L. 1921, p. 390. We think this question must he answered in the affirmative under the authority of Acquackanonk Water Co. v. Board of Public Utility Commissioners, 97 N. J. L. 366; affirmed, 98 Id. 449, under the title of the East Jersey Water Company.

The brief of the prosecutors is largely if not exclusively devoted to an attempt to demonstrate that this case is not controlled by the cited cases, pointing out what seems to be to the prosecutors important differences and distinctions. It would serve no useful purpose to pursue this subject further in detail, as we are satisfied that those cases are controlling; hence, the judgment of the board of public utility commissioners sought to be reviewed is affirmed, and the writ of certiorari is dismissed, with costs.


text:
    ANTONIO AMABILE, ADMINISTRATOR, ETC., PLAINTIFF, v. JOHN CRANE ET AL., DEFENDANTS.
    Argued October 6, 1926
    Decided January 19, 1927.
    Negligence — Death Resulting to a Boy Ten Years Old Coming in Contact With a Motor-bus — Plaintiff’s Verdict Questioned On Seven Grounds, but Sustained in All Except One, Excessiveness of the Award — Verdict of $5,000 Reduced to $4,000, or Rule Made Absolute.
    On rule to show cause.
    Before Justices Paekee, Black and Campbell.
    For the plaintiff, William George.

    For the defendant, George L. Record.

   Per Curiam.

This suit was brought to recover damages under the Death act. The deceased was a boy ten years old, when he was injured. The injuries causing his death on November 28th, 1924. He was struck by a motor-bus as is alleged by the plaintiff, or he ran into the motor-bus as is claimed by the defendants, which was owned by the defendant John Crane and operated by the defendant John Reilly on Pacific avenue near Ash street, in Jersey City, New Jersey. The trial resulted in a verdict for the plaintiff for $5,000. The defendants obtained a rule to show cause and writes down seven reasons for a new trial—

First. Permitting counsel for the plaintiff to ask questions of the jury before the oath was administered. This is permitted under the act (Pamph. L. 1911, p. 220) in civil cases.

Second. Error in refusing to nonsuit the plaintiff. Not so. Questions of fact were involved under the testimony. Just how the boy was injured is the vita] question in dispute.

Third. Error in refusing by the trial judge to charge the defendants’ request No. 3 in the language of the request, and refusing to charge request No. 9 in the language of the request. Not so; these requests to charge were fully covered by the charge of the trial judge.

The trial judge is not bound to charge the jury in the identical language of a request. McLaughlin v. Damboldt, 100 N. J. L. 127.

Fourth. The verdict was contrary to the weight of the evidence. Not so, as we read the record.

Fifth. There was no evidence to support the verdict. Not so.

Sixth. The charge of the court was erroneous in law. If so, there is no exception noted in the record and no argument made in the brief pointing out wherein there is error in the charge.

Seveúth. The damages awarded by the verdict are excessive. The verdict was $5,000. We think this is so. -If the plaintiff will accept $4,000 and remit the excess, the verdict may stand for that amount, otherwise, the rule will be made absolute.


text:
    HARRY BENNETT, PLAINTIFF, v. WALKER D. HINES, DIRECTOR GENERAL OF RAILROADS, DEFENDANT.
    Argued October 7, 1926
    Decided January 19, 1927.
    Negligence — Injury to Automobile and Personal Injuries Through Collision With Steam Railroad Train — Third Trial — Rule Made Absolute For Reasons Stated in Opinion of the Supreme Court on the Second Trial.
    On rule to show cause.
    Before Justices Parker, Black and Campbell.
    Por the defendant, Bourgeois & Coulomb.

    Por the plaintiff, Wescoll & Weaver and Swachhamer & Swachhamer.

   Per Curiam.

This suit was brought to recover damages for personal injuries and the destruction of a Por'd automobile. The accident occurred in the town of Monroeville, Cumberland county, Yew Jersey, at a steam railroad crossing, which crossing was at grade with a public highway, leading from Monroeville to Pranklinsville on February 10th, 1920. The trial resulted in a verdict for the plaintiff. This is the third trial of the case. At the first trial the jury disagreed; at the second trial a verdict was awarded the plaintiff. This verdict was set aside by the Supreme Court. We find substantially no difference in the testimony on this trial with that of the second trial, the verdict of which was set aside. The rule to show cause must be made absolute, for the reasons stated in the opinion of the Supreme Court on the second trial.


text:
    BOARD OF EDUCATION OF THE TOWNSHIP OF WEST AMWELL, IN THE COUNTY OF HUNTERDON, PROSECUTOR, v. THE STATE BOARD OF EDUCATION OF THE STATE OF NEW JERSEY ET AL., DEFENDANTS.
    Submitted October term, 1926
    Decided January 19, 1927.
    Schools — Transportation of Children — Prosecutor Seeks Writ to Compel Payment of School Moneys Withheld Because of Order of State Board Directing Local Board to Transport Certain Children to School, Which Order was Contested by Local Board — Order of Commissioner of Education Sustained.
    On certiorari.

    Before Justices Black and Campbell.
    Eor the prosecutor, Edgar W. Hunt.

    For the defendants, Edward L. Iialzenbach, attorney-general.
   Per Curiam.

The writ of certiorari seeks to review an order of the commissioner of education, dated January 27th 1926, directed to the county collector of Hunterdon county to withhold school moneys, which ordinarily would have been apportioned to the township of West Amwell, in Hunterdon county. The order was made because the prosecutor would not provide transportation facilities for the two children of Albert S. Phillips, aged six and seven years. The Phillips children reside about two miles, from the nearest school located at Mount Airy, a distance of over two miles. The basis of the order was an order of the commissioner of education, dated January 29th, 1925, affirmed by the state board of education, dated July 11th, 1925, by which it was ordered that such school transportation facilities be provided for the Phillips children.

The prosecutor relies upon the case of Frelinghuysen Township Board of Education v. Atwood, 73 N. J. L. 315; affirmed, 74 Id. 638. That case, in the Court of Errors and Appeals, was decided on March 4th, 1907. On May 7th, 1907, both the title of article 10 and section 126 of the act were amended (Pamph. L. 1907, p. 291), “convenience of access thereto,” &e., being added.

Our reading of the statute agrees with the construction and application made by the commissioner of education; hence, the order of January 27th, 1926, now under review, is affirmed, and the writ of certiorari is dismissed.


text:
    JOHN M. SMITH, RELATOR, v. THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF MONMOUTH ET AL., DEFENDANTS.
    Argued October 5, 1926
    Decided January 19, 1927.
    Municipalities — Counties—Employment of Detective Under Act of 1922 and Act of 1926, p. 411 — Latter Act Held Unconstitutional as Special Legislation, Having Classified Counties Bordering on Atlantic Ocean of Over 100,000 Inhabitants in a Separate Class — Pleadings May be Moulded to Admit of an Appeal to Court of Errors and Appeals.
    On rule for mandamus.

    Before Justices Parker, Black and Campbell.
    For the relator, Quinn, Parsons & Dor emus.

    For the defendants, William A. Elevens and William I. Edwards.

   Per Curiam.

This is a rule to show cause why a peremptory or alternative writ of mandamus should not be issued commanding the board of freeholders and the county treasurer of Monmouth county to pay the salary of the relator, John M¡ Smith, county detective, for the month of July, 1926. The relator was appointed a county detective of Monmouth county on July 8th, 1925, under the act of Pamph. L. 1922, p. 403. At the last session of the legislature an act (Pamph. L. 1926, p. 411) was passed which repeals the act of Pamph. L. 1922, p. 403.

The board of chosen freeholders refused to pay the relator’s salary on the ground that the act Pamph. L. 1926, p. 411, had repealed the act Pamph. L. 1922, p. 403. A rule to show cause was allowed why a writ of mandamus should not be issued compelling the payment of the salary on the ground that the act Pamph. L. 1926, p. 411, was unconstitutional, as being in violation of section 7, article 4 of the state constitution prohibiting special acts or special legislation.

The objectionable part of the statute is contained in the last paragraph, viz.: “This act shall not affect counties bordering on the Atlantic ocean -with a population of over one hundred thousand.” It is admitted that Monmouth county is one of the counties in the state bordering on the Atlantic Ocean and it is at present the only one of such counties over one hundred thousand population. It would be a hopeless task to review, or even attempt to review, for the purpose of harmonizing the decisions of our courts on this most perplexing subject. We think this limitation in the act of Pamph. L. 1926, p. 411, is clearly unconstitutional, as being special legislation. That it may be exscinded from the act without destroying it seems clear to us under our decisions, such as Johnson v. State, 59 N. J. L. 535; Iowa Life Insurance Co. v. Eastern Mutual Life Insurance Co., 64 Id. 340. That being so, a peremptory writ of mandamus should issue forth directing the salary of the relator to be paid according to the prayer of the relator. And if this is not one of the subjects that may be taken to the Court of Errors and Appeals under the statute (Pamph. L. 1903, p. 381; 3 Comp. Stat., p. 3216, § 6), the pleadings may be so moulded, under which a final judgment can be entered for an appeal to the Court of Errors and Appeals.


text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, PLAINTIFF-PROSECUTOR, v. DUNCAN IRVINE, DEFENDANT.
    Submitted October term, 1926
    Decided January 19, 1927.
    Practice of Medicine — Chiropody—Judgment Por Defendant Affirmed.
    On certiorari.

    Before Justices Black and Campbell.
    For the plaintiff-prosecutor, Edward L. Katzenbach, attorney-general, and Grover O. Richman, assistant attorney-general.
   Per Curiam.

The writ of certiorari in this case seeks to reverse the judgment of the First District Court of Newark in finding the defendant not guilty of violating the act “An act to regulate the practice of chiropody, to license chiropodists and to punish persons violating the provisions thereof.” Pamph. L. 1921, p. 839, ch. 288.

The record shows the case to be one entirely of fact. The judgment is affirmed, for the reasons stated in the case of State Board of Medical Examiners of New Jersey v. Sabol, No. 204, of the present October term of the court of 1926.

The judgment of the District Court of Newark is affirmed.


text:
    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, PLAINTIFF-PROSECUTOR, v. ANNA SABOL, DEFENDANT.
    Submitted October term, 1926
    Decided January 19, 1927.
    Practice of Medicine — Record Reveals Case One Entirely of Fact —Cases Tried Without a Jury, the Judge Determines the Facts — The Judgment For Defendant is Affirmed.
    On certiorari.

    Before Justices Black and Campbell.
    Eor the plaintiff-prosecutor, Edward L. Kaizenbach, attorney-general, and Grover G. Richman, assistant attorney-general.
    Eor the defendant, Nathan H. Berger.

   Per Curiam.

The defendant was charged with having violated section 10 of “An act to regulate the practice of medicine and surgery,” &c., approved May 22d, 1894, as amended by the act approved April 8th, 1921. Pamph. L. 1921, p. 702. The defendant was tried before the First District Court of the city of Newark, without a jury. The court found the defendant not guilty. The writ of certiorari seeks to set aside the judgment of the court below. Our reading of the record in this case leads us to the conclusion that the case is one entirely of fact.

It is the settled law of this court not to review questions of fact, in reviewing the decisions of inferior tribunals. McAdam v. Block, 63 N. J. L. 508.

Cases tried without a jury the judge settles and determines the facts. Bound Brook Stove Works v. Ellis, 98 N. J. L. 523. In this ease there is evidence on which the judgment of the court below rests.

The judgment of the Eirst District Court of Newark is affirmed.


text:
    STEPHEN W. SWENTY, AN INFANT, WHO SUES, ETC., PLAINTIFF, v. GEORGE OBERMEIER, DEFENDANT.
    Submitted October term, 1926
    Decided January 19, 1927.
    Negligence — Injury to Minor Through Explosion of Gasoline Tank in Garage — Whether Minor Went Beyond Bounds of His Invitation Properly Admitted to Jury — Award Not Excessive.
    On rule to show cause.
    Before Justices Black and Campbell.
    For the defendant, Elmer W. Romine.

    For the plaintiff, Frank Q. Turner.

   Per Curiam.

The defendant obtained a rule to show cause in this case why the verdict of $3,000 for personal injuries, in favor' of the infant plaintiff, and verdict of $669 in favor of the father, should not be set aside.

The injuries were caused by the explosion of a gasoline tank on December 15th, 1924, at Rockaway, New Jersey. The tank exploded in the defendant’s garage while being repaired.

The defendant writes down eight reasons for a new trial, which are argued in the brief under two heads, viz., the infant plaintiff, Stephen W. Swenty, stood in a place of danger,

going beyond the bounds of his invitation, and the damages awarded by the jury are excessive. These were questions of fact properly submitted to the jury under the evidence. We see no reason for disturbing the verdicts. The rule to show cause is therefore discharged.


text:
    HARRISON R. VAN DUYNE, INCORPORATED, RELATOR, v. W. H. SENIOR, BUILDING INSPECTOR OF THE TOWN OF MONTCLAIR, ET AL., RESPONDENTS.
    Argued October 6, 1926
    Decided January 19, 1927.
    Zoning — Practice—Demurrer—Motion to Strike Out — Practice Act, L. 1912, p. 377, Does Not Apply to Pleadings Resting on Prerogative Writ — Demurrer Overruled — Motion to Strike Out Denied.
    On mandamus, motion and demurrer.
    Before Justices Pakkek, Black and Campbell.
    Eor the relator, William H. Osborne.

    For the respondents, George R. Beach and Albert C. Wall.

   Per Curiam.

In the case No. 38 there is a demurrer to the return of an alternative writ of mandamus in what purports to be a zoning case. Case No. 73 is a motion to strike out the return. This latter motion must be denied under the case of McAllister v. Atlantic City, 90 N. J. L. 93. The Practice act of 1912 (Pamph. L. 1912, p. 377) does not apply to pleadings resting on a prerogative writ.

Case No. 73 — the demurrer must be overruled, because the return to the alternative writ sets up and raises substantial issues of fact, which are admitted by the demurrer.

The motion to strike out in case No. 73 is denied and the demurrer is overruled, with costs.


text:
    FRANCIS KETTERER, BY NEXT FRIEND, AND FRANK KETTERER, PLAINTIFFS, v. PUBLIC SERVICE RAILROAD COMPANY, DEFENDANT.
    Decided January 18, 1927.
    Negligence — Injury to a Mentally Deficient Boy by a Trolley Car —Injury Caused Loss of One Leg and Some Impairment of the Other — Verdict of $15,000 For Boy and $9,000 For Father Asked to be Set Aside as Excessive — Alleged That Boy’s Prospective Earning Capacity Did Not Justify Such a Sum— Held, That Because of His Limited Mental Capacity He is Now Deprived of the Only Means of Earning a Living, and Verdict Will Not be Disturbed.
    On rule for new trial.
    Before Justices Parker, Black and Campbell.
    Eor the rule, Henry H. Fryling.

      Contra, Martin P. Devlin.

   Per Curiam.

Francis Ketterer, an infant of about three years of age, was run over by a car of the defendant on August 18th, 1924, and sustained injuries for which he has a verdict for $15,000, and his father has a verdict for $1,000. Under this rule we are asked to set aside both verdicts upon the ground that they are excessive.

The boy’s right leg was so injured that it was amputated “just below the crotch — that is, about four inches of bone remain and that does not extend down far enough to give it any leg * * “The left leg was broken at a. corresponding point and crashed so that it looked doubtful as to whether it would recover. It, eventually, did recover.” The child is deficient mentally, being somewhere between an imbecile and a moron, and his intelligence will never exceed that of a child of eight to twelve years of age. This condition existed prior to the happening in question and not produced nor aggravated by it.

The argument of defendant against the amounts of these verdicts is that the earning capacity of this boy, because of his mental deficiency, -will be nothing, or, at best, very small.

We do not, however, feel warranted in disturbing them.

Conceding that the boy’s capacity to earn is below that of one of normal mentality, we think the jury was warranted in taking into consideration that such lack of mentality left open to the boy only one means of earning and that was by manual labor and that by the deformity resulting from his injury even that door is now closed against him and he must go through the remainder of his life not only mentally but physically deficient and entirely dependent upon others for a means of existence.

As to the father, practically, the same argument applies. Not only must he máintain a mentally incompetent son, but one now rendered a cripple, unable to earn for himself and whose care for the future must therefore be more highly expensive than if he was of normal mentality.

Eor these considerations we are unwilling to set aside these verdicts, which in our judgment could have no possible taint of excessiveness in the case of a normal child.

The rule will be discharged, with costs.


text:
    GOTTLEIB SCHMIDT, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, A CORPORATION, DEFENDANT.
    Decided January 19, 1927.
    Negligence — Injury to a Passenger in a Trolley Car — Liability Admitted but Rule Asked For on Ground of Excessive Award $17,000 — Facts Considered and Award Held Excessive— $12,000 Suggested or the Rule will be Made Absolute.
    Oil defendant’s rule to show cause.
    Before Justices Kabisch and Katzenbach.
    For the rule, Joseph Coult.

      Contra, George W. V. Moy.

   Per Curiam.

At the trial liability was admitted and the only question that is before us on the rule to show cause is whether the damages are excessive. There was a verdict of $17,000 in favor of the plaintiff against the defendant. On behalf of the defendant it is argued that the verdict is so grossly excessive that it should be set aside.

The injuries which the plaintiff sustained were the result of a collision while a passenger on a public service railway car which jumped the tracks and crashed into a telegraph pole. The plaintiff testified as follows: “When I changed cars at Bound Brook for going to my work toward Raritan, and 1 was in the ear when the car started off, the car jumped the tracks and somebody screamed, and I was about to go on my feet. I wanted to see what was going on and at the same time I got thrown on the right-hand corner of the car. So, finally, when everything was over, I was forced to get out, I went over the other way and fell on the floor, and the conductor came and wanted to take my name, and I put that up against the car to write my name, and I could not lift my right arm. Then I realized I must be hurt somewhere, and I had splinters in my right hand here” (indicating back of hand at knuckles). It further appears that when he was undressed there were found marks on the top of his shoulder and marks on the skin of his back.

At the time of his injury he was an employe of the Sherwin Williams Paint Works, as a foreman. He was earning about $42 a week, and it appears from the testimony that the nature of his work requires the use of his shoulder, arm and hand. When the firm was busy he had two or three men under him and when not busy he did all the work alone.

The case was tried on the 19th of January, 1926, about nine months after the plaintiff was injured. During all that time he was not only unable to do any work, but, according to the testimony, suffered a great deal of pain and underwent an operation in the Muhlenberg hospital, where his shoulder and arm were put into a cast for thirty-four days without producing any beneficial result. According to the plaintiff's testimony, corroborated by his wife, the plaintiff has been unable to rest in a bed and sits up in an easy chair. He was unable to help himself to such an extent that it required someone to assist him at all times.

Doctor Longbottom, one of the physicians who attended him, testified that according to his opinion he thought that within a year the plaintiff should have some use of his arm, but that he was unable to say within what period there was a reasonable probability of his entirely recovering the use of his arm.

Doctor Cooley, a specialist, who examined the plaintiff, and who had prescribed medicine for him at different times, testified that in his opinion there was no probability of the plaintiff's arm ever getting better; that it seemed to him, the doctor, to be getting more useless.

There was also testimony of a masseur, to the effect that he saw the plaintiff on the day of the accident, and examined his body, and that he saw the whole arm and neck and certain portions of the back, and that there was discoloring on the neck, shoulder and arm and one muscle, and that there was a big lump on the right side, and that he massaged the neck; that he attempted to massage the arm and shoulder but could not since it was too sore. Furthermore, there was proof that up to the date of the trial there was loss of wages and necessary expenditures fox doctor bills, massaging and medicine, amounting to abont $2,150. We think, however, that the award of $17,000 is excessive, in view of the fact that there was some testimony by a physician, produced by the plaintiff, that there was a probability of a betterment of the arm so that the plaintiff could have the use of it.

If the plaintiff will agree to accept the sum of $12,000, the rule to show cause will be discharged, otherwise, the rule will be made absolute.


text:
    ANNIE BOYLE ET AL. v. NATIONAL UNION BANK.
    Decided January 19, 1927.
    On appeal from the Morris County Court of Common Pleas.
    Before G-ummeee, Chiee Justice, and Justices Trenchabd and Mintuen.
    For the plaintiffs (respondents), Leon E. Cone.

    For the appellant, no appearance.
   Per Curiam.

The failure of the appellant to prosecute its appeal, either by submitting'a brief or by oral argument, is in effect an abandonment thereof.

The apppeal, therefore, will be dismissed, with costs to the respondents.


text:
    CLEMENTINE HEINE, PLAINTIFF-RESPONDENT, v. ACME THEATRE COMPANY, DEFENDANT-APPELLANT.
    Submitted October term, 1926
    Decided January 19, 1927.
    Negligence — Injury to a Patron of. a Theatre Caused by Falling Over a Hidden Platform While on Her Way to Her Seat, as the Lights Were Being Turned Off — Nonsuit and Direction of Verdict For Defendant Properly Denied.
    On appeal.
    Before Justices Black and Campbell.
    For the defendant-appellant, Joseph G. Pcml and Jacob Schneider.

    For the plaintiff-respondent, Precker & Precker and Herbert J. Hannoch.

   Per Curiam.

The action in this case was brought to recover damages for personal injuries received by the plaintiff, when going to her seat at a performance of the Shubert Theatre, at Branford Place, in Newark, New Jersey, on the evening of December 27th, 1924. As the plaintiff was going to her seat, the lights were turned off, the theatre became dark and she tripped or fell over a hidden platform, or a raised platform, something like three feet.

The trial resulted in a verdict for the plaintiff. The defendant appeals and files three grounds of appeal—

First. Error in refusing to nonsuit.

Second. Error in refusing to direct a verdict in favor of the defendant.

Third. Error in permitting a witness, Carrie B. Beyer, on rebuttal, to answer this question: “Q. Were there any aisle lights in the aisle next to where Mrs. Heine was seated on the right of the accident? A. No.”

The questions of nonsuit and the direction of a verdict are controlled by the cases in the Court of Errors and Appeals of Andre v. Mertens, 88 N. J. L. 626; Dondero v. Tenant Motion Picture Co., 94 Id. 483. The question objected to was an answer on rebuttal, after defendant had first brought the question of lights into the case. Eecord, page 50, line 38. It was also admissible as bearing upon the plaintiff’s contributory negligence under the pleadings.

The judgment of the Essex County Circuit Court is affirmed.


text:
    IRA W. CALDWELL, RELATOR, v. JOHN SAUL AND THE MAYOR AND ALDERMEN OF JERSEY CITY, RESPONDENTS.
    Argued October 5, 1926
    Decided January 25, 1927.
    Municipalities — Building Permits — Garage—Fire Hazards» — Relator Applied to Enlarge His Garage by Extensions on Both Sides — No Objection to Extension on One Side, but the Other Opposed on Ground of Fire Hazard — Another Application was Made For the One Extension Only, and Granted —Relator Now Asks For Mandamus to Compel the Other Extension — Held, That Former Application, in Substance, Had Been Withdrawn, and Second That the Fire Hazard Constituted a Valid Reason For Withholding Permit.
    On rule to show cause why writ of mandamus should not issue requiring issue of a permit for alteration of a public garage according to plans submitted.
    Before Justices Pabkeb, Black and Campbell.
    Eor the relator, John Milton.

    Eor the respondents, Thomas J. Brogan and Charles Ilershenstein.

   Per Curiam.

Relator, Caldwell, bought a lot on the east side of Ocean avenue which had on it an abandoned motion picture theatre which had been turned into a public garage. The walls of this theatre had been retracted five feet from each side of the lot to facilitate escape in case of fire. Caldwell wanted more room, and proposed to rebuild the side walls on the property line. There was no objection on the south side where there is a vacant lot. But on the north side he was forbidden to move the side wall on the ground that this would bring the building too close to a dwelling property and increase the fire hazard. His first application was therefore rejected. He went to see the authorities, and, apparently, compromised on moving the south wall alone, being allowed to erect piers on the north side, outside the present wall, to support steel I-beams extending outward to the property line; conformably to that oral arrangement he formally made a new application, asking to extend the wall on south, side only. This application was granted, and he went to work under it; and now, reverting to the original application, he asks a mandamus to build under that on the north side. We think the point made by the city is well taken, that application No. 1 is dead, being, in substance, withdrawn after rejection. It is a legitimate and proper inference that the second application was granted as a compromise measure and in view of the substantial withdrawal of the first.

Another good reason for refusing the permit is the fire hazard ordinance. This is attacked as invalid. In the case of buildings other than residential it gives power to the board of commissioners to refuse a building permit unless, in the judgment of the board, the proposed structure will not increase the fire hazard in the locality.

It is claimed that this vests an arbitrary power in the board. But to this we do not agree. They are to act judicially;, and the words "may direct permit to issue” are doubtless mandatory as to cases where no extra hazard is found to exist. It is also claimed that this ordinance is invalid under the decision in Ingersoll v. South Orange, 3 N. J. Adv. R. 1407. But that case is very far from holding that owners may create any amount of fire hazard and the city must keep a fire department adequate to cope with it. The power to regulate building so as to minimize fire hazard is well settled. Neumann v. Hoboken, 82 N. J. L. 275; Independent Penna. Oil Co. v. Gloucester, 4 N. J. Adv. R. 1532. As always, the question is whether the regulation is reasonable. In the case at bar, we have a garage with one thousand gallons of gasoline stored at the front door. Is it reasonable for the commissioners to adjudge that there should be side access in case of fire ? If side egress from a theatre is essential and proper, why not access to or egress from a blazing garage ? We think the ordinance not unreasonable as applied to this case, and for this reason also, as well as for that first stated, conclude that the rule to show cause should be discharged.


text:
    ANNA LAURA FESSLER ET AL. v. FILOMENO COLORITA AND YELLOW CAB COMPANY.
    Decided January 19, 1927.
    Negligence — Injury to Passenger of a Taxicab Through Collision With Another Motor Vehicle — Verdict That Accident was the Result of the Joint Negligence of Both Drivers Sustained.
    On defendant’s rules to show cause.
    Before Gummere, Chief -Justice, and Justices Trenchard and Minturh.
    For the rules, Alexander M. McLeod, George L. Becord and Bleakly, Stockwell & Burling.

      Contra, Albert S. Woodruff.

   Per Curiam.

The plaintiffs, while passengers in a taxicab of the Yellow Cab Company, were injured through a collision of the cab with an automobile driven by the defendant Colorita. The jury found that the collision was the result of the joint negligence of the driver of the Yellow cab and of the defendant Colorita. Our examination of the testimony leads us to the conclusion that the finding was justified.

We find no error in the rulings of the court with relation to the admission or rejection of testimony, nor in the charge to the jury.

The verdicts in favor of the respective plaintiffs are neither of them so clearly excessive as to justify their being set aside by this court.

The rules to show cause will be discharged.


text:
    THE STATE OF NEW JERSEY. DEFENDANT IN ERROR, v. JACOB ZEBERT, PLAINTIFF IN ERROR.
    Submitted October term, 1926
    Decided January 19, 1927.
    Crimes — Larceny—Theft of Silk From a Store — Held, Evidence Sufficient to Convict.
    On writ of error.
    Before Justices Black and Campbell.
    For the plaintiff in error, Charles Hood.

    For the defendant in error, John O. Bigelow, prosecutor of the pleas.
   Per Curiam.

The defendant, Jacob Zebert, was convicted in the Essex Quarter Sessions of the larceny of “one bolt of silk, of the value of $157.50, of the goods and chattels of L. Bamberger & Company.” The defendant files five assignments of error and five causes for reversal, which are substantially the same. The whole argument of the defendant in error turns upon the sufficiency of the evidence to convict, that the verdict of the jury was against the weight of the evidence. This we think is unsound, in view of the testimony of the witness Dorothy Schols. She testified, that she observed the defendant, Jacob Zebert, a woman named Bessie White and an unidentified man walking toward the silk department; “he [the defendant] lifted forward his left hand and pushed off this bolt of silk, and, as he pushed it down, Bessie White took it and guided it into the front of her skirt.”

The judgment of the Essex County Quarter Sessions is affirmed.


text:
    LETZ AND KATZ, INCORPORATED, A CORPORATION, RELATORS, v. FRANK I. ACKERMAN, SUPERVISOR OF BUREAU OF BUILDINGS OF THE CITY OF PASSAIC, AND THE CITY OF PASSAIC, DEFENDANTS.
    Argued October 5, 1926
    Decided January 25, 1927.
    Zoning — Gasoline Station in Restricted Territory — Application Denied by Board of Zoning Adjustment, With Intimation That Scheme Involved a Dangerous Fire Hazard — This Decision Stands Until Reversed or Set Aside by Judicial Review.
    On rule to show cause why mandamus should not issue.
    Before Justices Parker, Black and Campbell.
    For the relators, Irving I. Werksmav.

    For the defendants, Frederick S. Ranzenhofer.

   Per Curiam.

Relator, wishing to install a gasoline station at the southerly corner of Bloomfield and Paulison avenues, in Passaic, finds a zoning ordinance in the way, and asks a writ to override it.

The application for building permit was made in June, 1926, at which time the Board of Zoning Adjustment act was in force. Pamph. L. 1926, p. 526. On the refusal of a permit, relator appealed to the board of zoning adjustment, which in turn denied the permit, with some intimation that the scheme involved a dangerous fire hazard.

In this posture of affairs, and in view of the statute, the decision of the board of zoning appeals stands until reversed or set aside on a judicial review. Chancellor Development Co. v. Senior, 4 N. J. Mis. R. 633.

The present rule to show cause will therefore be discharged.


text:
    THOMAS BUTLER, INSPECTOR OF BUILDINGS OF THE CITY OF PLAINFIELD, RELATOR, v. THE INHABITANTS OF THE CITY OF PLAINFIELD, RESPONDENTS.
    Argued October 6, 1926
    Decided January 25, 1927.
    Municipalities — Mandamus to Pay Disputed Salary — Suit at Law the Proper Remedy in Such Cases, and Then, if Necessary, Mandamus to Compel Payment of Judgment — The Legal Right to Receive Salary Must be Clear.
    On rule to show cause why writ of mandamus should not issue requiring the city to pay relator certain salary claimed to be due him.
    Before Justices Pabker, Black and Campbell.
    Eor the relator, William Newcorn.

    Eor the respondents, Arthur T. Vanderbilt.

   Per Curiam.

Relator seems to have mistaken his remedy. He claims that he was de facto and de jure inspector of buildings of the city of Plainfield from January 1st, 1925, to January 26tli, 1925, and that he performed the service. All this is denied. The municipal body has not admitted the propriety of the claim; on the contrary, it says it is illegal and refuses to order it paid.

Tn this situation, and in the absence of any judicial determination that there is a debt due from the city to relator, the general rule applies that mandamus will not lie, and this on the fundamental ground that the legal right must be clear. The ordinary and well-recognized procedure where the right to salary is asserted and denied is by an ordinary suit at law for the salary. Instances are Fredericks v. Board of Health, 82 N. J. L. 200, and Gaskill v. Atlantic City, 89 Id. 269. If that suit results in a judgment favorable to the claimant, mandamus then lies to compel the municipality to pay it. So, also, if the corporate body has recognized the propriety of the claim and ordered it paid and the disbursing officer refuses to pay, mandamus will lie against him. American, &c., Co. v. Seymour, 79 Id. 92. But the present case does not fall within either class.

The rule to show cause will be discharged, with costs.


text:
    SAMUEL COMLY, PROSECUTOR, v. ATLANTIC CITY ET AL., DEFENDANTS.
    Argued October 6, 1926
    Decided January 25, 1927.
    Municipalities — Walsh Act — Assignment of Commissioners to the Several Departments — Police Department Alleged Not to be a Proper Assignment to Department of Public Affairs, but Should be Assigned to Department of Public Safety— Under the Bayonne Case it was so Held, but the Application in That Case was Properly Made — Prosecutor is in Laches Here.
    On rule to show cause why writ of certiorari should not be allowed.

      Before Justices Parker, Black and Campbell.
    Eor the rule, Clarence L. Cole.

    Opposed, Joseph B. Perslcie.

   Per Curiam.

Atlantic City is governed under the Walsh act. On May 20th, 1924, a new board of commissioners was inducted into office, and that board proceeded, as provided by law, to assign the several commissioners to departments and prescribe their powers and duties. Among other resolutions then adopted was one determining the powers and duties of the director of public affairs and the present prosecutor desires to have this reviewed and if possible set aside on the ground lhat to the director of public affairs is assigned the supervision and direction of the police department, and that this is not an “appropriate” assignment in the intendment of the statute.

It will be observed that no member of the board is making this objection, but it comes solely from one claiming to be a citizen and taxpayer, and after the lapse of more than two years since the passage of the resolution, during which time it is to be presumed that the governmental machinery has become fully adjusted to the situation created on May 20th, 1924.

Since the present rule to show cause was made the Court of Errors and Appeals has decided the case of Oliver v. Daly, 4 N. J. Adv. R. 1833, in which it is intimated that the appropriate department for the police is that of public safety; and it may be that if the question had been raised promptly after the adoption of the resolution we should he obliged to follow the opinion of the appellate court. The question was promptly raised in the Oliver case ; the resolution in that case was passed December 2d, 1924, and the certiorari was argued at May term, 1925 (131 Atl. Rep. 678), but when, as in this case, so long a delay has ensued, a writ should be denied on the ground of laches, as in O’Connell v. Bayonne, 4 N. J. Adv. R. 1538.

Allocatur is therefore denied and the rule to show cause is discharged, with costs.


text:
    EDWARD F. FLEMING ET AL., PLAINTIFFS, v. WILLIAM C. BURRELL, DEFENDANT.
    Argued October 7, 1926
    Decided January 25, 1927.
    Assault and Battery — Landlord and Tenant — Landlord and Tenant Engaged in a Dispute Over Rent — Both Alleged Assault— Complainant’s Wife was Also Assaulted by Defendant, the Landlord — Judgment For Wife, No Judgment For Either Husband or Defendant — Held, Verdict is According to Weight of Evidence.
    On defendant’s rule to show cause.
    Before Justices Pakkek, Black and Campbell.
    For the plaintiffs, William I. Garrison.

    For the defendant, Clarence L. Cole.

   Per Curiam.

Plaintiffs are husband and wife, and united a dwelling-house of the defendant. There was some question about the rent being in arrear, and defendant went one morning about seven-thirty to see the husband about it before he went away to his work. Fleming asked him in, and asked what was the object of the visit. Burrell said rent. Fleming said all rent had been paid. An altercation took place, and Fleming asked Burrell to leave. At this point the testimony becomes contradictory. Burrell says Fleming struck him and continued to do so as he was leaving, that this, in effect, led to a clinch in which Burrell’s shoulder went through the glass of the door. Fleming saj’s Burrell refused to leave, and that he, Fleming, pushed him out of the door and turned the key, and that Burrell returned and smashed in the door; that at tills, juncture Mrs. Fleming, who was far gone in pregnancy, came down stairs and that Burrell struck or pushed her so hard as to force her back over the stove and strain her back, as a result of which she shortly thereafter began to have uterine hemorrhages and finally had a premature birth. These are the two conflicting stories; there is some testimony about inconsistent statements, and so on, but the controversy on the material facts is epitomized above.

The jury found a verdict for the woman for $2,500 and no verdict for the husband; likewise, no verdict for Burrell on his counter-claim for assault and battery. There was a second count in the complaint for malicious prosecution, but this was not relied on at the trial. The reasons argued are that the verdict was against the weight of evidence, was excessive, and that there was error in the charge.

It is quite evident that the jury took the not unreasonable view that as between the two men, neither was shown to be the original aggressor, but that they were satisfied on the testimony that defendant had done needless violence to the woman, and mulcted him for that. It is said that this verdict is inconsistent and illogical, but we think it can be supported on a tenable theory of the case.

We do not think the damages excessive, especially as the court charged, and as we think correctly, that on a certain finding of facts punitive damages might be assessed.

The part of the charge about a house being a man’s castle, and defendant being an unwelcome caller, we think is not legally erroneous. It is true that both admit that the defendant was at first asked into the house, but the moment he was asked to leave, then he did become an unwelcome caller.

The rule to show cause will be discharged.


text:
    HELEN M. CLARK, RELATOR, v. STATE BOARD OF EXAMINERS, RESPONDENTS.
    Argued October 6, 1926
    Decided January 25, 1927.
    Education — Permanent Teacher’s Certificate — Teacher Educated in Another State, Having Taught Here the Required Time, Asked For a Permanent Certificate — County Superintendent Refused — His Decision, on Appeal, Sustained — On Appeal to State Superintendent, He Asked That the Matter be Sent Back to State Board of Examiners For Rehearing — Instead of Pressing That Course This Rule was Secured — Held, That Mandamus Should Not Issue at This Time.
    On rulo to show cause why mandamus should not issue requiring the issuance of a permanent teacher’s certificate.
    Before Justices Parker, Black and Campbell.
    Eor the relator, Joseph W. Henry.

    For the respondents, Harry B. Coulomb, assistant attorney-general (Edward L. Katzenbach, attorney-general, on the brief).
   Per Curiam.

We do not think relator is entitled to a mandamus, particularly at the present stage.

Her rights are to be determined in view of the rules promulgated by the state board of education by authority of the School law.

Relator graduated at a normal school in New Hampshire, and obtained a temporary license to teach in the public schools of this state. Under the rules, this might be made permanent after two years’ service, on filing with the state board of examiners a testimonial of competency and success from the county superintendent of schools. This latter could grant or refuse such testimonial; in the latter case he was required to file with the state board of examiners a statement of his reasons for so refusing. He did refuse, and filed the statement. The rules provide that the applicant may appeal to the state board of examiners and that board “may in its discretion renew or make permanent the certificate of the applicant.” She appealed accordingly, and that hoard, for reasons satisfactory to them, declined to make the certificate permanent. She appealed to the commissioner of education and, after producing evidence as to what had taken place before the state board of examiners, her counsel asked the commissioner of education to rehear the main case on the merits to the end that if satisfied of her qualifications, he award a permanent certificate. He refused to go into the general merits of the case, and decided that the application should he sent back to the state board of examiners for a rehearing. Relator then appealed from this decision to the state board of education which affirmed the action of the commissioner.'

In this posture of affairs we are asked to mandamus the examiners to award a permanent certificate as though relator had had the full hearing of which she was apparently deprived, and as though she had proved a bona fide case before the examiners which would make it an abuse of discretion on their part to refuse a certificate. This would be tantamount to awarding her a judgment when she was entitled to nothing more than a new trial, or, perhaps, a hearing de novo on appeal, though we have not gone particularly into this phase of the case. It may be that the decisions of the commissioner and the state board of education could he attacked on certiorari; but that is not this case. As the matter stands, we are clear that relator is not entitled to the relief sought herein. The rule to show cause is therefore discharged, with costs.


text:
    PARAMOUNT REALTY AND CONSTRUCTION COMPANY, INCORPORATED, A CORPORATION, RELATOR, v. GEORGE E. SCHMITT, BUILDING SUPERINTENDENT OF THE TOWN OF IRVINGTON, AND THE TOWN OF IRVINGTON, RESPONDENTS.
    Argued October 5, 1926
    Decided January 25, 1927.
    Zoning — Stores and Apartment-Houses in Residence District— Appeal to Board of Zoning Appeals, Who Refused to Hear the Merits of the Case, Disclaiming Jurisdiction — Board Should Have Heard Appeal — If it Refuses Again, Court is Open to. Application For Mandamus.
    On rule to show cause why writ of mandamus should not issue.
    Before Justices Parker, Black and Campbell.
    For the relator, Cohen & Klein.

    For the respondents, Charles II. Stewart.

   Per Curiam.

This is a zoning case. Relator’s property is on the northwest corner of Sanford and Clinton avenues, in Irvington, Essex count]-, in a district zoned as “Besidence A.” The proposed building would have stores on the ground floor and apartments above, and is barred by the ordinance.

Eelator contracted to buy the property on March 3d, 1926, but did not get a. deed till June 1st, or thereabouts. On May 28th, plans were submitted to the building inspector and rejected by him because of the zoning ordinance. Eelator then, through its representatives, appeared before the board of zoning appeals, and desired to argue the merits of the appeal, but was not allowed to do so> the testimony indicating that the board disclaimed jurisdiction to hear such appeals except in certain cases provided in the ordinance. Eelator now asks a mandamus to issue a permit to build.

We think it is not entitled to it at this time, on the authority of Chancellor Development Corp. v. Senior, 4 N. J. Mis. R. 633; 134 Atl. Rep. 337. It is true that the zoning board declined to hear the appeal, but in that it either ignored or was unaware of the act of 1926, page 526, and so disregarded its plain duty. The appeal should be presented to it again and determined according to the facts as developed on the evidence. Should the board after these suggestions again refuse to hear the merits of the appeal, this court is open to an application for mandamus to compel it to perform its duty in the premises.

The present rule to show cause will be discharged.


text:
    NEW YORK LIVE POULTRY TRUCKING COMPANY, PROSECUTOR, v. LOUIS SCHWARTZ, DEFENDANT.
    Argued October 5, 1926
    Decided January 25, 1927.
    Workmen’s Compensation — Commissioner Found Temporary but Not Permanent Disability — Appeal to Common Pleas Where Permanent Disability was Found — Held, First, That Court Had Jurisdiction to Hear and Give Judgment on the Facts, and Second, That There was Evidence of Permanent Disability.
    On certiorari to award in workmen’s compensation case.
    Before Justices Parker, Black and Campbell.
    For the prosecutor, Franlc C. Turner.

    For the defendant, Kent & Kent.

   Per Curiam.

The commissioner awarded for temporary disability, but refused to award for permanent disability. On appeal to the Common Pleas, that court, acting under the amendment of 1921 to paragraph 19 of the act (see Pamph. L. 1921, at pp. 734, 735), considered the evidence taken before the commissioner, reweighed it, concluded that permanent disability had been shown, and made award accordingly. The matter is now before us on certiorari.

Two points are made — the first is that the Pleas had no jurisdiction to reverse the findings of fact of the commissioner, based on the same evidence. But we think it was the very object of the amendment of 1921 to give the Pleas jurisdiction to review the findings of fact on a written transcript of the testimony, and determine the merits of the controversy. Jayson v. Pennsylvania Railroad Co., 3 N. J. Adv. R. 199; Charlock v. Kellogg Co., 4 N. J. Mis. R. 260.

The other point is that, assuming the jurisdiction of the pleas to reverse the finding of fact, there was no evidence to support such reversal. It is doubtless true that the petitioner was suffering from venereal disease and its resultants, but on the evidence the court below was entitled to find that the disease was more or less dormant until wakened by the accident; which in such case may be said to have caused the injury in a legal sense. Atchison v. Colgate & Co., 3 N. J. Mis. R. 451; Lundy v. George Brown & Co., 93 N. J. L. 107, 110; Winter v. Atkinson Frizzells Co., 88 Id. 401; Voorhees v. Smith Schoonmaker Co., 86 Id. 501.

The judgment of the Common Pleas will be affirmed.


text:
    STATE OF NEW JERSEY, EX REL. THE BILT-WEL COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, RELATOR, v. THOMAS J. DOWLING, INSPECTOR OF THE BUILDING AND PLUMBING DEPARTMENT OF THE CITY OF ORANGE, NEW JERSEY, AND THE CITY OF ORANGE, ESSEX COUNTY, NEW JERSEY, RESPONDENTS.
    Argued October 5, 1926
    Decided January 25, 1927.
    Zoning — Apartment-House in Residence District — Case Within Ignaciunas v. Risley, Except That Appeal to Board of Adjustment Must First be Taken — That Board Now Acts Judicially —Constitutionality of Act Giving Board Judicial Powers Raised but Held Not to Call For Extended Discussion.
    On rule to show cause why writ of mandamus should not issue.
    Before Justices Parker, Black and Campbell.
    Por the relator, John J. McCloskey.

    Por the respondents, Spaulding Fraser.

   Per Curiam.

This is a zoning case. Relator wishes to build an apartment-house on the west side of Scotland road, adjoining the South Orange line. The district is zoned “Residential A,” and by the ordinance such a building as that now projected is forbidden.

The case would he one for the same disposition as the line of cases typified in Ignaciunas v. Risley, 98 N. J. L. 712, except for the statute of 1926 (Pamph. L., p. 526), and the stipulated fact that there is a board of zoning adjustment. In that situation we deem it our duty to follow the decision of the Chief Justice in Chancellor Development Corp. v. Senior, 134 Atl. Rep. 337; 4 N. J. Mis. R. 633; and this results in a discharge of the present rule, leaving it open to relator to appeal to the board and to review its decision, if adverse, by certiorari. As intimated in the Chancellor ease, the board is to act judicially, on a lawful ascertainment of facts.

Relator has presented a supplemental brief urging, among other things, that the act of 1926 is unconstitutional as cutting off a jury trial, that the Chancellor case is not controlling, and that the right of appeal does not bar an application for mandamus. We have considered these matters and such others as are set out in the brief, but do not think they call for extended discussion.

The rule to show cause will be discharged.


text:
    MARY A. O’BRIEN, PROSECUTRIX, v. STATE OF NEW JERSEY AND WILLIAM A. HAAG, RECORDER OF THE BOROUGH OF KEANSBURG, RESPONDENTS.
    Argued October 5, 1926
    Decided January 25, 1927.
    Disorderly House — Complaint Does Not Charge Offense — Nothing to Indicate That Place was a Public Place, &c., According to Statutory Requirements — Proceedings Set Aside.
    On certiorari to proceedings as against a disorderly person.
    Before Justices Parker, Black and Campbell.
    Eor the prosecutrix, J acob 8. Karhus.

   Per Curiam.

The proceedings brought up must be set aside.

1. The complaint does not name the prosecutrix except as “Mrs. O’Brien,” which is insufficient. Kearsley v. Gibbs, 44 N. J. L. 169, and cases cited.

2. There is no record of any conviction.

3. The complaint does not charge any offense within the statutes relied on, viz., Disorderly act (Rev. 1898), and Pamph. L. 1924, ch. 193. The charge is that Mrs. O’Brien and the occupants of No. 25 Beachway, at two a. m., July 21st, 1925, did act in a disorderly manner and make noise, disturbing the peace by shouting, singing and threatening each other, and fighting with each other, thereby, &c. If this is not meant to charge conduct at No. 25 Beachway, no place whatever is stated as the locus in quo. If it is meant so to charge, there is nothing to indicate that 25 Beachway was a public place (Rev. 1898; Peer v. Dixon, 82 N. J. L. 366), or public conveyance (Pamph. L. 1912, p. 161), or a quasi-public place or private property not her own. Pamph. L. 1924, p. 385.

The proceedings will therefore be set aside.


text:
    ALEXANDER MARROWSKI, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY, DEFENDANT.
    Submitted October 16, 1926
    Decided January 28, 1927.
    Negligence — Injury to Person While Jumping From a Truck, Coming Into Contact With a Passing Trolley Car — Held, Verdict Against Weight of Evidence.
    On defendant’s rule to show cause why plaintiff’s verdict should not be set aside.
    Before Gummere, Chief Justice, and Justices Trenchard and Minturn.
    Eor the rule, Joseph Coult (Henry M. Pryling, of counsel) .

      Contra, Heine, Bradner & Laird (John A. Laird and Palmer Bradner, of counsel).
   Per Curiam.

The plaintiff recovered a verdict of $5,000 for injuries sustained in a collision with a trolley car of the defendant company. Plaintiff was a helper on a truck which was proceeding westerly from New York to Paterson on the Paterson plank road at a point in the open country where the road was straight away, and where there were trolley tracks on both sides of the highway. The trolley car was going in the same direction as the truck. The driver of the truck upon which plaintiff was riding as helper, drew it up along side of, and quite near, the trolley road on the right-hand side, and then the plaintiff jumped off, and the Public Service Company car' being right there at the moment, hit the plaintiff and injured him.

Defendant obtained this rule to show cause why the verdict should not be set aside, and assigned as a reason (among others) that the verdict is against the great weight of the evidence, and we think it is, both upon the question of the alleged negligence of the defendant and the alleged contributory negligence of the plaintiff;

The rule to show cause will be made absolute.


text:
    JULIA ALEXANDER, PLAINTIFF, v. JOSEPH MATTEUCCI AND PUBLIC SERVICE RAILWAY COMPANY, A CORPORATION. DEFENDANTS.
    Submitted October 16, 1926
    Decided January 28, 1927.
    Negligence — Injury to a Passenger of a Bus Caused by Contact With a Trolley Car, While Alighting From the Bus — Verdict For $35,000 Against Both Bus Owner and Trolley Company —Held, That Evidence Tends to Show That There was Gross Negligence on Part of Both Carriers and No Contributory Negligence — Verdict Will Not be Disturbed.
    On defendants' rule to show cause why plaintiff's verdict should not he set aside.

      Before Gummere, Chiee Justice, and Justices Trenoi-iard and Minturw.
    Eor the plaintiff, David T. Wilentz (Elias A. Ranter, of counsel).
    For the defendant Joseph Matteucci, Edkuard A. Mwrkley and Charles Siockdell Grwy.

    For the defendant Public Service Railway Company, Joseph Holt and Henry H. Frylmg.

   Per Curiam.

This action was to recover damages for injuries sustained by Julia Alexander, the plaintiff, as a result of the alleged negligence of the two defendants. The jury found for the plaintiff against both defendants for $35,000. Both defendants obtained rules to show cause why the verdict should not be aside.

Defendant Matteucci was the owner of a jitney bus operated between Perth Amboy and Metuchen. Plaintiff was a passenger on the bus and was about to alight at a corner, at a point where the defendant Public Service Railway Company operated in the highway a trolley line with a single track, the roadbed of which was not paved or improved. Plaintiff had signaled the driver of the bus to stop at the comer. When the jitney bus came to a stop the trolley car, according to the testimony produced on the part of the plaintiff, was about five hundred feet away coming at a speed of thirty miles an hour and giving no warning, and this fact was observed by the jitney bus driver. The testimony further tended to show that the bus came to a stop so that the body of the bus was within two feet of the near rail of the trolley line and the driver of the bus opened the door and permitted the plaintiff to get out without saying anything to her, although the.evidence was that the bus driver saw the rapid approach of the trolley ear. The testimony further tended to show that the plaintiff was not aware of the approach' of the trolley car. It further tended to show that the motorman of the trolley car, though having an unobstructed view, did not decrease the speed of his car until he was about to strike the plaintiff. The evidence also tended to show that, upon being thus let out of the bus practically upon the trolley rail, the plaintiff proceeded to walk across the track and when near the far rail she was struck by the trolley, the driver of the bus not having attempted to warn her until just as she was about to be struck.

Defendant Public Service Eailway Company does not contend (and could not successfully) that there was an absence of negligence on its part, nor that the plaintiff was guilty of contributory negligence; but defendant Matteucci says not only that there was no negligence upon his part which was the proximate cause of plaintiff’s injury, but that the plaintiff was guilty of contributory negligence as a matter of law, and therefore contends that the denial of a nonsuit and directing of a verdict in his favor was improper. We think there is no merit in such a contention, nor can we say that the verdict was against the weight of the evidence.

A careful examination of the case satisfies us that there was no error prejudicial to the defendant either in the examination of the witnesses, or in the charge of the court, or in the refusal to charge requests.

The counsel for both defendants refer to the verdict as excessive. Of course, the verdict is large, very large; but without stating in detail the evidence, it is sufficient to say that the woman was horribly and permanently injured; and we are unable to say that its size is an indication of any passion, prejudice or mistake on the part of the jury.

Both rules to show cause will be discharged.


text:
    SIDNEY WEBSTER, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF JOHN NEDDON WEBSTER, DECEASED, PLAINTIFF, v. HORACE WICKHAM AND THE GULF REFINING COMPANY, A CORPORATION, DEFENDANTS.
    Submitted October 16, 1926
    Decided January 28, 1927.
    Negligence — Death of Boy While Coasting on a Sled, Caused by the Backing of a Motor Truck Without Warning — Verdict For Plaintiff Sustained.
    On defendants’ rule to show cause why the plaintiff’s verdict should not be set aside.
    Before Gummere, Chiee Justice, and Justices Trenoitard and Minturn.
    For the rule, McCarter & English.

      Contra, Dolan & Dolan.

   Per Curiam.

This was an action to recover for t'he death of John Neldon Webster, a boy five years of age, resulting, as plaintiff claims, and as the evidence tended to show, from an injury caused by the sudden backing, without warning, of the defendant’s truck which theretofore had been standing at the curb of a street, in the town of Newton, in front of a garage. At that point there is a slight down grade, and the plaintiff’s intestate was riding down this grade on a hand sled, with a schoolmate, and the evidence indicates that as the boys approached the truck it started backwards without warning. The decedent’s companion threw himself off the sled and avoided the accident, but decedent was unable to get out of danger and the sled was run over by the truck and the boy crushed to death.

The jury rendered a verdict of $2,000 for the plaintiff.

We do not think the judge erred in refusing to nonsuit or to direct a verdict for the defendants. We think the questions of negligence of the defendants, and the contributory negligence of the decedent, were properly submitted to the jury. We are unable to say that the verdict is contrary to the weight of the evidence.

We have examined defendants’ points four and five which relate to the exclusion of evidence, and point six which relates to the charge of the court, and find no error prejudicial to the defendants.

The rule will be discharged.


text:
    ALEXANDER S. SOLON, RELATOR, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Decided January 31, 1927.
    Zoning — Apartment-House in Restricted Territory — Nothing Before Court to Show Existence of a Board of Adjustment in the Municipality — It Does Not Appear That the Proceeding is Premature — Peremptory to Issue.
    On rule to show cause why mandamus should not issue.
    Before Justices Black and Campbell.
    Eor the rule, Aaron Morder.

      Contra, Walter C. Ellis.

   Per Curiam.

Relator applied to the building inspector of East Orange for a permit to erect on premises known as 164-168 South Clinton street, a four-story and basement brick apartment-house to be used for dwelling purposes. The permit was refused upon the ground that the zoning ordinance of the city prohibited the erection of buildings of that character in the district or zone in which relator’s lands are situated. Thereupon the present rule to show cause was obtained.

There is nothing before us showing the existence of a board of adjustment in the city of East Orange nor is it urged that this proceeding is premature or improper because of failure of relator to appeal from the determination of the building inspector to the board of adjustment.

We have therefore not considered such matters.

Following the many cases both in the Court of Errors and Appeals and in this court, of which, in this court, Jersey Land Co. v. Scott, 100 N. J. L. 45, is quite exactly in point, a peremptory writ of mandamus must issue.


text:
    ROBERT GREEN, RELATOR, v. W. HARRY JONES, BUILDING INSPECTOR, AND VENTNOR CITY, RESPONDENTS.
    Decided January 31, 1927.
    Building Permits — Permit Refused on Ground That There Were Restrictive Covenants in the Deed — Held, Yhat Existence of Such Covenants is Not a Matter of Concern to Building Inspector.
    On rule for mandamus.

    Before Justices Black and Campbell.
    For the relator, Clarence L. Cole.

    For the respondents, Hiram Steelman.

   Per Curiam.

Relator is the owner of lands in the city of Yentnor. There is a cottage upon the lands and the lands are subject to certain building restrictions or restrictive covenants.

Eelator applied to the building inspector for a permit to make certain alterations to the dwelling-house.

The permit was refused upon the ground that the changes and alterations contemplated would be in violation of the restrictive covenants against the lands. The present rule to show cause was then applied for and allowed.

The existence of these covenants and their probable violations are a matter of no concern to the building inspector and form no legal basis for his refusal to issue the permit applied for. Pumo v. Fort Lee, 4 N. J. Mis. R. 663.

A peremptory writ of mandamus as prayed for will issue.


text:
    ABRAHAM RUDNEVITZ, RELATOR, v. FREDERICK BIGELOW, SUPERINTENDENT OF BUILDINGS OF NEWARK. DEFENDANT.
    Argued October 5, 1926
    Decided January 31, 1927.
    Zoning — Case Within E. & M. Land Co. v. Board of Adjustment— Peremptory Writ to Issue.
    On rules for mandamus.

    Before Justices Parker, Black and Campbell.
    Eor the relator, Harry Levin.

    For the defendant, Charles A. Myers.

   Per Curiam.

Eules to show cause were allowed in these cases why writs of mandamus should not issue commanding the superintendents of buildings in the city of Newark to- issue building permits to erect at Nos. 162-166 Mapes avenue and 168-170 Shephard avenue, in the city of Newark, a three-story brick apartment-house at each place containing upon the ground floor several stores. The building superintendent refused to issue such permits because it would be contrary to the provisions of the city zoning ordinance.

The facts are somewhat similar to those in the cases of E. and M. Land Co. v. Board of Adjustment, 4 N. J. Mis. R. 467, in which the refusal to issue a building permit to the prosecutor was set aside.

The judgments in those cases were affirmed by the Court of Errors and Appeals as No. 121 and No. 122 on January 31st, 1927. We think these cases are controlled by those cases. Hence, rules may be entered directing peremptory writs of mandamus to issue as prayed for.


text:
    CHRISTOPHER EHMANN, PLAINTIFF, v. MANHATTAN RUBBER MANUFACTURING COMPANY, DEFENDANT.
    Submitted October 16, 1926
    Decided January 28, 1927.
    Negligence — Injury to Employe of Purchaser of an Emery Wheel From Defendant, When it Collapsed — Alleged Improper Workmanship in Making and Installing Wheel — Reasons For Setting Aside Verdict Considered, and Rule Discharged.
    On plaintiff’s rule to show cause why a verdict in favor of the defendant should not he set aside.
    Before Gummere, Chief Justice, and Justices Trenchaed and Minturn.
    Eor the rule, Edward A. Marlcley and Charles Stoelcdell Gray.

      Contra, William A. Gaston and Elmer King.

   Per Curiam.

This action was brought by the plaintiff against the defendant to recover for injuries resulting from the collapsing of an emery wheel manufactured by the defendant. This wheel had been sold by the defendant manufacturer to the employer of the plaintiff, viz., American Abrasive Metal Company. The plaintiff was engaged in operating this wheel at the time the accident occurred. The jury rendered a verdict for the defendant, and the plaintiff obtained this rule to show cause why such verdict should not be set aside.

The first ground upon which we are asked to make the rule absolute is that the trial judge erred in refusing to instruct the jury that, if the emery wheel had been properly set up, and, nevertheless, collapsed while it was being properly operated in a normal manner, the fact that it broke would be evidence that it was defective and unsafe, and, if not ex-plainedwould be sufficient evidence to authorize the jury to find thaf the defendant was negligent. It seems to us that this request was properly refused, for it embraced a factor which was not justified. That is contained in the words “if not explained.” There was a full explanation submitted by the defendant. The only question was whether the jury would accept that explanation as a basis for finding that the defendant was not negligent.

The next ground for making the rule absolute is that the judge erred in refusing to charge the following request: “If you find that no act on the part of the servants of the plaintiff’s employer caused the wheel to break, and that it was being used for the purpose it was intended to be used by the defendant, and at a proper speed and in a proper manner, then the breaking or bursting of the wheel presents an abnormal situation which bespeaks negligence in the manufacture of the wheel, which calls upon the defendant for an explanation to exculpate itself from the inference or presumption of negligence arising from the breaking of the wheel.” What w~e have already said with relation to the first ground for making the rule absolute is equally applicable to this. The defendant conceded that it was required to explain the ground upon which non-liability was rested, and this it did. Iii other words, the request would merely be to instruct the jury that the defendant was under an obligation which it had in fact performed.

The next ground for making the rule absolute is directed at the refusal to charge certain other requests. These requests, in their essence, are the same as those already referred to, namely, that the fact that the wheel broke would be evidence that it was defective and unsafe, and, if not explained, would be sufficient evidence to authorize a finding that the defendant was negligent, and, further, that the breaking presented an abnormal situation, which called upon the defendant for an explanation to exculpate itself from the inference of negligence arising from the breaking of the wheel. As we have already said, this the defendant did, and showed that it had complied with the requirements laid down by our eases. In Heckel v. Ford Motor MANHATTAN RUBBER MANUFACTURING Co., 3 N. J. Adv. R. 631, the court lays down the following rule: “Th'e manufacturer of an appliance, that will become highly dangerous, when put to the uses for which it is designed and intended, because of defects in its manufacture, owes to the public a duty, irrespective of any contractual relation, to use reasonable care in the manufacture of such appliance; and such duty calls for and requires the exercise of reasonable care in applying reasonable tests to, detect defects and deficiencies in the appliance. * * * It must appear that such tests were applied and their application made in a reasonably careful manner/ The jury was so' instructed. The verdict, which was in favor of the defendant, was evidently based upon the conclusion that the defendant had complied with this legal requirement. The court in its charge having laid down the rule which we have recited, that was, of course, properly accepted by the jury as the law of the case.

The next ground for making the rule absolute is that the trial judge erred in a statement of fact made to the jury. We think this assertion is without justification.

Lastly, it is said that the verdict is against the weight of the evidence. Our reading of the testimony leads us to the opposite conclusion.

The rule to show cause will be discharged


text:
    STATE OF NEW JERSEY, EX REL. WILLIAM L. VANDERHOFF, RELATOR, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Submitted October 10, 1926
    Decided January 28, 1927.
    Zoning — Stores and Apartments in Restricted Territory — Case Within Ignaciunas v. Nutley.
    On alternative writ of mandamus.

    Before Gummere, Ctttee Justice, and Justices Trestohabd and Minturn.
    For the relator, William Tyache.

    For the respondents, Walter O. Ellis.

   Per Curiam.

The relator sought a building permit. He obtained an alternate writ of mandamus. There was a return to the writ and a demurrer to the return.

It thns appears that the relator desired to erect a two-story brick structure containing stores on the first floor and living apartments on the second floor, on the northerly side on Ninth avenue, in the city of Bast Orange, and that the sole reason for denying the permit was that the land in question, by a zoning ordinance, was limited to residential purposes, and a commercial store was prohibited thereby.

We think the case is controlled squarely by the decision in State v. Nutley, 99 N. J. L. 389. A peremptory writ of mandamus will issue.


text:
    RACHEL CATTRELL HOFF AND ARTHUR HOFF, HER HUSBAND, PLAINTIFFS-APPELLANTS, v. MARTIN WHITE, DEFENDANT-APPELLEE.
    Submitted October 16, 1926
    Decided January 28, 1927.
    Negligence — Injury Resulting From Fail on Sidewalk — Verdict For Defendant Will Not be Set Aside Where the Rule was Not Applied For Until Six Months After it was Rendered, and an Examination of the Proofs Reveal That the Newly-Discovered Evidence is Only Accumulative.
    On plaintiffs’ rule to show cause why a new trial should not he granted.
    Before Gummere, Chief Justice, and Justices Trenohard and Minturn.
    Eor the rule, Clarence Kelsey.

    Contra, John D. Craven.

   Per Curiam.

This action was brought to recover on account of injuries alleged to have resulted from a fall due to the condition of the sidewalk in front of defendant’s premises made so by the act of the defendant in piling and artificially accumulating loose snow over a layer of ice. The defense was that plaintiff did not fall in front of defendant’s premises, but in front of a neighboring property. The jury found in favor of the defendant on January 21st, 1926. This rule to show cause why a new trial should not he granted on the ground of newly-discovered evidence, was not applied for until six months later.

Our examination of the proofs result in the conclusion that the newly-discovered evidence is merely cumulative and corroborative of evidence heard at the trial, and, hence, more especially in view of the long delay, will not justify a new trial.

The rule will be discharged.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. WILLIAM BROMLEY, PLAINTIFF IN ERROR.
    Submitted October 16, 1926
    Decided January 28, 1927.
    Crimes — Obtaining Money Under False Pretences — No Error in Refusal to Quash the Indictment — No Error Prejudicial to Defendant.
    On writ of error.
    Before Gummere, Chief Justice, and Justices Teen-chard and Minturn.
    For the plaintiff in error, Bichard Doherty.

    For the defendant in error, John Milton, prosecutor of the pleas.
   Per Curiam.

This is defendant’s writ of error bringing up a conviction on an indictment found by the grand jury of Hudson county.

The indictment charged, in effect, that the defendant obtained money from George Hig’don by false pretence, the misrepresentation alleged being that the defendant could secure and obtain a legitimate automobile driver’s license for him without his taking a legal and proper examination and test as required by the department of motor vehicles of New Jersey, which representation was averred to he false, and known to the defendant to be false.

The defendant claims that the court erred in refusing to quash the indictment upon a motion made before the trial was moved, and in the denial of motion in arrest of judgment upon the same grounds now to be considered.

We think that the indictment, as we have indicated, in effect, charges the obtaining of money by false pretences. We think that there was no failure (as claimed by the defendant) to negative the pretences stated in the indictment. We think that it, in effect, alleges that the property was obtained by means of the false pretences alleged. We think the indictment, in effect, avers that the defendant could not lawfully obtain a legal license. We think that it, in effect, exhibited a pretence which, in the circumstances stated, had a tendency to induce the person defrauded to part with his money.

It is argued that the indictment failed to charge, and that the evidence failed to establish, any public offense. We think that it charged a criminal offense and that the offense charged was proved.

We fail to find any error prejudicial to the defendant in permitting testimony of a communication made by a third party to the complaint, certainly none raised on this record.

We find no error (as claimed by the defendant) upon the part of the judge in submitting the case to the'jury upon an issue not within the indictment and upon a theory having no support from the evidence. We think that a careful reading of the charge will disclose that the matter was fairly presented to the jury.

It is next argued that the verdict was against the weight of the evidence. We do not think that it was. The fact is, we think, that the defendant’s own testimony reasonably supports his conviction.

The judgment will be affirmed, with costs.


text:
    EDWARD KLINK, PLAINTIFF-RESPONDENT, v. MORRIS FRISH, DEFENDANT-APPELLANT.
    Submitted October 16, 1926
    Decided January 31, 1927.
    Contracts — Work and Materials Furnished — Dispute Regarding Amount to be Charged and Amount, if Extra Work Done— Judgment of Nonsuit Sustained.
    On appeal from the Essex County Court of Common Pleas.

      Before Gummeee, Chief Justice, and Justices Teeuchaed and Mintuen.
    For the appellant, William Greenfield.

    For the respondent, Sticlcel & Naughright (Halsey W. Stichel, of counsel).
   Per Curiam.

This is an appeal from a judgment of the Essex County Court of Common Pleas entered upon plaintiff’s verdict. Plaintiff sued to recover the balance of $1,926.50 alleged to be due for work, labor and material in the installation of a bar and fixtures and a lunch counter at 116 Washington street, Newark. Plaintiff claimed the work and material to be $3,076.50, upon which he had been paid $1,150, leaving the balance claimed.

The defense was that plaintiff agreed to do the work and furnish the materials for $1,200, and as $1,150 had been paid there was only $50 remaining unpaid and due. Defendant relied upon a receipt as establishing that contract, while the plaintiff denied that there was any such contract, although admitting that he had signed a receipt for $300, in which no mention was made of a balance due when he signed it.

Plaintiff offered proof to establish that all the work done was not ordered originally, but from time to time, and that much of it was ordered after the date of the receipt.

The question tried was simply whether or not the work which, as we read the record, was admittedly done and the value of which was not' questioned, was done under a contract or under an arrangement whereby the plaintiff was to be paid its reasonable value.

We think the grounds of appeal directed to the admission of evidence are too indefinite to avail the appellant. But apart from that our examination of the record discloses no error in this respect prejudicial to the defendant. Moreover, the record discloses, as we read it, that the witness did not avail himself of the permission to use the-memorandum to refresh his recollection, and we do not find that the memorandum itself was admitted in evidence, .as claimed by the defendant.

There was no error in the refusal to nonsuit, more especially since in any event the plaintiff was entitled to recover $50.

We find no error in the comments of the judge nor in the refusal of requests to charge.

The judgment will be affirmed, with costs.


text:
    BURNS & SCHAFFER AMUSEMENT COMPANY, PROSECUTOR, v. LEO J. WARWICK, JUDGE, ETC., ET AL., DEFENDANTS.
    Argued January 18, 1927
    Decided January 31, 1927.
    Londlord and Tenant — Clause in Lease Providing For Re-entry if Rent is Not Paid Within Thirty Days After Due — Held, That it is Not in Form of a Mutual Covenant and Confers No Right or Privilege on Tenant — It was Made For Exclusive Benefit of Landlord — Judgment of District Court Affirmed.
    On rule to show cause. On certiorari.

    Before Justices Black and Campbell.
    Eor the prosecutor, William L. Edwards and Ward Kremer.

    For the defendants, Quinn, Parsons & Doremus.

   Per Curiam.

A rule to show cause was allowed in this case, to show cause why a writ of certiorari should not issue to review a judgment of the Second Judicial District Court of Monmouth county, on the 20th day of December, 1926, for the possession of a building containing a theatre, situate at the northeast corner of Linden Place and Broad street, in the borough of Red Bank, New Jersey. The facts are not in dispute.

Idle prosecutor admits that it was in default for the rent due upon the 6th of December, 1926. The sole reason against the entry of the judgment is that under a clause in the lease it was provided that the rent should not be paid for thirty days after the due date. The District Court held otherwise and entered judgment in favor of the plaintiff. This we think was not error. The clause in the lease relied upon to defeat the actions is as follows: “Tf the rent is not paid as herein agreed, within thirty days from the date upon which it shall fall due, the party of the first part reserves unto himself the right to declare the within lease null and void, the guarantee forfeited, and to enter the said premises and remove all persons therefrom.” The right of re-entry reserved in this clause of the lease is concurrent to the right of summary action by the plaintiff, under the statute, and is not exclusive. The clause is not in form of a mutual covenant between the parties to the lease. It is an independent covenant. There is no right or privilege conferred by this clause upon the tenant. The reservation is made for the sole and exclusive benefit of the. landlord without regard to any rights of the tenant, as we read the lease.

The District Court had jurisdiction of the ease and, as we think, that court reached a right result. The rule to show cause is therefore discharged. The judgment of the District Court is affirmed, with costs.


text:
    HENRY ORLIK, PLAINTIFF, v. WEST JERSEY AND SEASHORE RAILWAY COMPANY, DEFENDANT.
    Argued January 19, 1927
    Decided January 31, 1927.
    Negligence — Injury to Stalled Automobile on Tracks of Defend ant — Plaintiff's Rule Discharged.
    On plaintiff’s rule to show cause.
    Before Justices Black and Campbell.
    Por the plaintiff, D. Truman Staclchouse.

    Por' the defendant, Bourgeois & Coulomb.

   Per Curiam.

The rule to show cause was allowed in this case to review a verdict rendered in favor of the defendant. The suit was brought to recover damages for the destruction of the plaintiff’s Pord automobile. The automobile was stalled, on the evening of January 14th, 1926, at the Zane avenue crossing on the tracks of the defendant company, in Collingswood, New Jersey^

Our reading of the record leads us to the conclusion that the rule to show cause should he discharged. The case is controlled in principle by the case of Taylor v. Lehigh Valley Railroad Co., 87. N. J. L. 673.

The rule to show cause is discharged.


text:
    CHRISTINA NOONAN AND MICHAEL NOONAN, PLAINTIFFS, v. GREAT ATLANTIC AND PACIFIC TEA COMPANY AND FAIRMOUNT BOTTLING COMPANY, DEFENDANTS.
    Argued October 7, 1926
    Decided January 28, 1927.
    Negligence — Injury to Customer in a Store Through the Explosion of a Ginger Ale Bottle — There was Evidence to Show That the Ale was Bottled Under a Pressure Higher Than That Intended For Such Bottles, Also That the Proprietor of the Store or His Employes Had Found Other Bottles of the Ale Had Exploded — Held, That There was Sufficient Evidence to go to Jury, That the Verdict was Not Against the Weight of Evidence, but That the Verdict was Excessive.
    Oil defendants’ rales to show cause why plaintiffs’ verdicts should not be set aside.
    Before Gummere, Chief Justice, and Justices Tjrenchabd and Mieture.
    For the plaintiffs, Feder & Binzler.

    For the defendant .Great Atlantic and Pacific Tea Company, Reed & Reynolds.

    For the defendant Fairmount Bottling Company, Wright, Vander Burgh & McCarthy.

   Per Curiam.

The plaintiff Christina Noonan went to the store of the defendant Great Atlantic and Pacific Tea Company to purchase groceries. While she was there a ginger ale bottle, which one of the clerks was selling to a customer, exploded, and she was struck on the nose by a piece of flying glass. Her claim was not only that the cut was the result of the accident, but that a polyp developed in the inside of her nose as a further result. The jury awarded her $5,000 damages and her husband $1,000 against both defendants.

This ginger ale was bottled by the defendant the Eairmount Bottling Company and sold at wholesale to the Great Atlantic and Pacific Tea Company. There was evidence to the effect that this ginger ale was bottled under a pressure of fifty pounds, and that thirty-five pounds was the maximum number of póunds which a bottle of the character used would stand without exploding. There was evidence on the part of an employe of the Atlantic and Pacific Tea Company from which the jury might have properly concluded that when he came to the store in the morning he would sometimes find that bottles of this ginger ale had exploded over night. In view of this evidence we think it was for the jury to say whether the Atlantic and Pacific Tea Company was not negligent' in failing to take some means for the protection of customers from injury which might result from flying glass, in ease bottles should explode during business hours.

As to the Eairmount Bottling Company: It seems to us, in view of the evidence to which we first referred, and other evidence, that it was a question for the jury to say whether that defendant had not failed in the exercise of reasonable care in the selecting of these bottles, .and in inspecting and testing the bottles in which this ginger ale was put under a pressure of fifty pounds.

We think that the motions to nonsuit and to direct a verdict for the defendants were properly denied, and ’we think that the verdict of the jury finding negligence on the part of these .two defendants cannot be said to be contrary to the weight of the evidence. We think, however, that both verdicts are plainly excessive under the evidence.

Under these circumstances, if plaintiff Christina Noonan will consent to a reduction of her verdict to $3,500, and her husband will consent to a reduction of his verdict to $750, such verdicts may stand for such amounts, and the rules will be discharged; otherwise, the rules will be made absolute.


text:
    MICHAEL SHARKEY, PLAINTIFF, v. STEPHEN KAPUSA AND GREENSPAN BROTHERS, INCORPORATED, A CORPORATION, DEFENDANTS.
    Submitted October 16, 1920
    Decided January 28, 1927.
    Negligence — Injury to Invitee of One Defendant, Whose Motor Vehicle was In Collision With Car of Other Defendant— Verdict Against Owner of Colliding Car and in Favor of Car of Host of Plaintiff — Rules by Unsuccessful Defendant Against Successful Defendant, Also Rule by Plaintiff on Account of Inadequacy of Verdict — Ail Rules Discharged.
    On rules to show cause.
    Before Gummere, Chief Justice, and Justices Trenchaed and Minturn.
    For the plaintiff, Isidor M. Diibrow.

    For the defendant Greenspan Brothers, Incorporated, Freeman Woodbridge.

    For the defendant Stephen Kapusa, Kalisch & Kalisch.

   Per Curiam.

These are two rales to show cause. The plaintiff sued the two defendants to recover for injuries sustained by him while riding with defendant Kapusa, on the latter’s invitation, in the latter’s automobile, in a collision between the latter and the defendant Greenspan Brothers’ automobile. The jury at the Middlesex Circuit rendered a verdict in favor of plaintiff and against defendant Greenspan Brothers for $2,500, and a verdict in favor of the defendant Kapusa of no cause of action. Greenspan Brothers obtained a rule to show cause why plaintiff’s verdict and the verdict in favor of Kapusa should not be set aside; and the plaintiff obtained a rule to show cause why the verdict in favor of Kapusa should not be set aside, in which, it was also ordered that defendant Greenspan Brothers show cause why the verdict in favor of plaintiff, Sharkey, should not be set aside as inadequate as to damages.

Briefly and generally stated, the evidence tended to show that the automobile of Kapusa, in which plaintiff was riding by invitation, was proceeding on the road from Rahway to Carteret at a speed of about twenty-five or thirty miles an hour; that át a sharp curve in the road plaintiff and his companion sighted the automobile of defendant Greenspan Brothers suddenly rounding the sharp curve and on Greenspan’s wrong side of the road; that plaintiff’s driver immediately applied the brakes but the car skidded around and was struck by the Greenspan truck, which, according to the testimony, was proceeding “pretty lively,” in the rear, and jammed the plaintiff forward against the front seat of the car, breaking his leg.

We think there was evidence of negligent operation of the truck of defendant Greenspan Brothers, and the verdict holding them is not against the weight of the evidence. We are also unable to say that the verdict of $2,500 against Greenspan Brothers, in favor of plaintiff, was inadequate as contended by the plaintiff.

With respect to the claim that the verdict in favor of Kapusa should be set aside, we think that the question of his negligence in the circumstances was properly resolved by the jury in the defendant’s favor.

The rules to show cause will be discharged.