author: Losohe, J.

text:
    Fifth District Court of Bergen County.
    CHARLES GRABER, PLAINTIFF, v. GEORGE H. CORMACK AND MARY CORMACK, DEFENDANTS.
    For the plaintiff, Charles Schmidt.

    For the defendant, John J. Francis.

   Losohe, J.

This is an action to recover damages for personal injuries sustained on April 24th, 1929, when an automobile operated by the defendant, George H. Cormack, in which plaintiff was riding, tipped over. The case was tried without a jury.

I have no difficulty in concluding that defendant, George H. Cormack, was operating the automobile, a six cylinder 1926 Packard sedan, on business of his own, relieving defendant, Mary Cormack, the owner of the automobile of liability. Doran v. Thomsen, 76 N. J. L. 754. Nor have I any difficulty in finding that plaintiff was invited by defendant, George H. Cormack, to ride from Bast Rutherford to Hackensack with him and plaintiff’s two friends, Schmidt •and Scott, subjecting defendant to the rule stated in Paiewonsky v. Joffe, 101 N. J. L. 521, 523.

The difficulty arises by reason of plaintiff’s testimony as to how the accident happened. He testified that defendant, George H. Cormack, was driving at a speed of about twenty to twenty-five miles per hour in a northerly direction on 'Terrace avenue in Hasbrouck Heights; that a green traffic light at Williams avenue permitted him to cross that thoroughfare without stopping; that a short distance north of Williams avenue, on the easterly side of Terrace avenue, there was a parked car which defendant proceeded to pass, swinging to his left and, after passing it, back to his right; that just as defendant had passed the parked car and was still swinging to his right, a. car in the rear signaled its intention to pass, which it did, cutting in front of defendant so sharply as to require him to swing more definitely to the right; that then defendant turned to the left again to resume his course and had practically stopped when the car tipped over causing plaintiff’s injuries; that at no time did plaintiff see a car approaching from the opposite direction.

I cannot conceive of this automobile tipping over under such circumstances, bearing in mind that it carried four men. Plaintiff’s testimony presented no plausible explanation of the accident. Certainly, he provided little basis for charging defendant with negligence. He favored his adversary more than a party ordinarily does. It is, of course, unusual that one’s testimony should tend to defeat the very action which he has instituted. However, as other witnesses testified, it became apparent that plaintiff was mistaken in his version of the occurrence. His manifest lack of intelligence and inability to remember afforded me ample explanation for his mistake.

Plaintiff’s two witnesses, Schmidt and Scott, gave straightforward and unimpeached'testimony to the effect that defendant George H. Cormack was driving his car at a speed of from forty to forty-four miles per hour; that he was asked to slow down; that he swerved left and right to pass the parked car; that just after he had passed the parked car, a car in the rear signaled its intention to pass; that at that time a truck was approaching from the opposite direction; that upon hearing said signal, defendant increased his speed and at the same time turned his car left again to resume his course; that the excessive speed of the car in connection with defendant’s efforts to right its direction caused the mishap.

Defendant George H. Cormack testified that lie might have been going as fast as twenty-five, twenty-eight or thirty miles per hour but that when the car tipped over he had practically stopped; that he could give no explanation of the cause for the tipping except that there was a hole in the road. He did not give its size, its location in the road, nor did he state that any of the car’s wheels entered it. No other witnesses testified to its presence. Granting that there was a hole, it must have been a sizable one to have caused this car, carrying four men, when practically stopped to tip over. If it were a sizable one and, therefore, easily seen, defendant might very well be charged with negligence for not avoiding it or stopping entirely before reaching it. However, I cannot accept defendant’s version of the occurrence either, because it, too, strikes me as improbable.

The Supreme Court of the United States in Atlantic Works v. Brady, 107 U. S. 192, said:

“The inherent probability or improbability of such a fact is to be tested by the unquestioned circumstances that surround the main transaction or occurrence, as well as by The ordinary laws that govern human conduct.’ ”

Applying this yardstick to the situation at hand, I cannot but conclude that the accident occurred as Schmidt and Scott said it did because their version is, certainly, the probable one.

I realize that to find as I do, I must not only discount defendant’s testimony but also plaintiff’s. Nothing short of a total disregard for my natural reactions would permit me to do otherwise. But, may a plaintiff recover despite himself? I am satisfied that he may. A party’s testimony is received and judged like that of other witnesses. His testimony is received subject to the same rules of evidence. In fact, today a party is just another witness. A jury (the judge here) may disregard the testimony of any witness. Since, therefore, plaintiff is just another witness, I may conclude that he was honestly mistaken in his testimony.

These observations find support in some measure in the following excerpt from the opinion of the Court of Errors and Appeals in Schreiber v. Public Service Railway Co., 89 N. J. L. 183 (at p. 186):

“We think that no reason can he assigned which would put a party giving testimony in any other position in this regard than that of a witness not a party; and a jury might well conclude that a party has made a mistake as to a fact as well as any other witness, and, therefore, if upon the whole matter the jury is of opinion that the plaintiff or defendant has proved the case, then the verdict should be for that party, although it rests upon testimony contrary to that given by the party, and despite the fact that the party gave testimony which, standing alone, might preclude a recovery. The mistake of a plaintiff or defendant cannot change facts proved by other witnesses.”

There will be judgment in favor of the plaintiff and against the defendant, George H. Cormack, and judgment in favor of the defendant, Mary Cormack, against the plaintiff.


source: Caselaw Access Project

author: Sieuleb, J.

license: Public Domain

text:
    Essex County Juvenile Court.
    GIOVANNINA CARPINO, COMPLAINANT, v. FRANCESCO CARPINO, DEFENDANT.
    Eor the complainant, Ernest F. Mcisini.

    For the defendant, Irving W. Teeple.

   Sieuleb, J.

The defendant is here on an application to set aside an order of five ($5) dollars made against him, for the support of his wife, based generally on the ground that this court did not have jurisdiction in the matter. It was agreed at the outset between counsel, that in lieu of taking testimony between the parties, that the question of fact be determined on affidavits.

I have examined the affidavits submitted by both sides very carefully and find that the parties were married on February 8th, 1925. This was a second marriage for both of them; they both own real estate in this state in their own name from which they derive an income. After the marriage the parties lived at the home of the husband in Lyndhurst, New Jersey, and on September 1st, 1926, they removed to the city of Newark where they resided until December 5th, 1928. The last place of their residence was at No. 13 Crane street, the property of the wife.

The first point raised by the defendant is that he is not resident and domiciled in this jurisdiction. The second point, that he committed no matrimonial offense that subjected him to an order to support his wife.

It has been held in Harral v. Harral, 39 N. J. Eq. 279 (at p. 285), in the Court of Errors and Appeals: “A person sui juris may change his domicile as often as he pleases.” * * *

It follows that the defendant had a legal right to change his domicile from Newark to Lyndhurst, and it thereby became the duty of his wife to follow. It is uni'versaRy held that the domicile of the husband is the domicile of the wife, unless, of course, where the husband abandons or misconducts himself so as to constitute in láw a matrimonial offense, justifying her in leaving him. Floyd v. Floyd, 95 N. J. Eq. 661.

The next point is based on a question of fact as to whether or not when the defendant -left the city of Newark to go to Lyndhurst he committed a matrimonial offense justifying his wife in staying in her home at Newark.

The proof does not satisfy me by its weight, that the defendant mistreated, abandoned or willfully refused to provide and maintain for his wife. The contrary is established. On December 5th, 1928, when the husband moved to Lyndhurst, there was nothing in the conduct between these parties toward each other that would permit of the inference of matrimonial mistreatment by the husband of his wife. There may have been some slight misunderstanding and a quarrel now and then which is quite usual even in the most happy and peaceful domestic life, but nothing of the character that would justify the complainant in separating herself from her husband. Before the complainant would have the legal right to separate and create her own domicile, she would have to establish a matrimonial offense justifying her in leaving him. t

It was so held in Floyd v. Floyd, supra: “That the domicile of the wife is merged in that of her husband and is continued during coverture, unless she acquires a separate domicile elsewhere by her husband’s consent; or where he abandons her or misconducts himself as to constitute in law a matrimonial offense justifying her in leaving him.”

I am satisfied from the evidence that the husband made repeated demands upon his wife to return and live with him. These demands if made in good faith, should be complied with even though he had committed a matrimonial offense, like that of abandoning or failing to properly support his wife. Complainant having sought in her wisdom to refuse the offer, it is she who is the deserter, not him.

I find as a fact that the defendant is a resident and domiciled in Lyndhurst and was so at the time of the institution of this action. I also find that when he removed from Newark on December 5th, 1928, it was the duty of his wife to follow her husband.

Having come to these conclusions, this court has no jurisdiction in the premises. The decree of five ($5) dollars per week will be vacated and the petition dismissed.

I will sign an order in accordance with these views.


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN RIBEIRO, PETITIONER, v. GEORGE M. BREWSTER & SONS, RESPONDENT.
   $ $ $ $ 3* &

Petitioner alleges that he sustained an accident arising out of and in the course of his employment with respondent on August 3d, 1928. He says that at that time he was employed by the respondent as a laborer and while so engaged was struck by a steam shovel in the body, face and head. He alleges that as a result of said accident he sustained serious and permanent injuries. He alleges that he received injuries to his head, hearing, body, limbs, back, internal injuries, injuries to nervous system and numerous fractures. He may have actually received a fracture to his sixth rib, at or near the scapula. Whatever injuries he did receive to his body are now entirely cured and have resulted in no permanent disability. He has a bad nose condition consisting of a very bad deflected intra-nasal septum of very long standing, with a large thick spur iu each nostril, pressing against each inferior turbinate bone. There is a chronic mueo-purulent sinusitis caused by the deflected nasal septum and there is a chronic catarrhal naso-pharyngitis. Petitioner has a total permanent loss of function of his left ear. He has an infection of the large middle ear which is extending into the mastoid hone and which may develop into a chronic mastoiditis or brain abscess or meningitis, any or all of which may in turn result iu serious brain or other complications to petitioner and even in his death.

Respondent denies that the nose and ear conditions of petitioner are the result of an accident arising out of and in the course of his employment with respondent, but respondent, taking all injuries, diseases, and any and all other conditions of plaintiff into consideration, including any and all ultimate results of any and all of the various diseases, injuries and conditions of petitioner, and basing the settlement on not only petitioner’s present condition but on any and all developments in his condition which may be by him or by doctors alleged to be results of his alleged accident, either directly or by way of aggravation, is willing to settle the entire matter for five weeks temporary disability from August 3d, 1928, to September 14th, 1928, which amount has already been paid, and for twenty per cent, of total permanent disability, amounting to one hundred weeks at the rate of $17 a week. Respondent also agrees to pay as its share of any counsel fee awarded the attorney for the petitioner the sum of $125 and also agrees to pay the sum of $50 as part of the medical expenses of petitioner.

From the testimony and the facts stipulated, the settlement is fair to both sides and is approved by this court upon the distinct understanding of the petitioner, his attorney, the respondent, and its attorneys that a fundamental element of the settlement is the fact that any future and further developments resulting in an increase of disability to the petitioner or his death are taken into consideration and are in a large measure the reason for the respondent’s willingness to agree to this settlement.

*******

John J. Stahl, Deputy Commissioner.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH DOBRENSKI, PETITIONER, v. I. M. KONIGSBERG, RESPONDENT.
    Eor the petitioner, Brenner & Kresch.

    For the respondent, McCa/rter.& English.

   % # ijt j|{ ^ sH #

Petitioner alleges that he sustained an accident arising out of and in the course of his employment with the respondent on October 19th, 1928. He says that at the time he was employed as a laborer, and while so engaged was carrying a large timber with the help of another man when the timber fell upon the petitioner’s foot. He alleges that as a result of the said accident he sustained a permanent injury to the foot which has affected the leg and arm. He further alleges that he is suffering from pains throughout his entire system and finds it difficult to get out of bed and almost impossible to sit down. He further alleges that his nerves are continually on edge and that his entire body keeps shaking nervously, and that he has sustained serious permanent injury.

The respondent denies that there is any permanent injury to the foot of the petitioner or that the petitioner’s leg and arm has been affected, or that the petitioner is suffering with pain throughout his system or that his nerves are continually on edge or that his body keeps shaking nervously, and the respondent denies that the petitioner has suffered any serious permanent disability, but the respondent takes all injuries, diseases, and any and all other conditions of the petitioner into consideration, including any and all ultimate results of any and all of the various diseases, injuries and conditions of the petitioner, and basing the settlement not only on petitioner’s present condition but on any and all developments in his condition of any nature whatsoever which may be by him or by doctors alleged to be results of his alleged accident, either directly or by way of aggravation, is willing to settle the entire matter for fifty per cent, disability of the great toe or fifteen weeks at the rate of $16 a week, and twelve weeks’ temporary disability at the rate of $16 a week. Eespondent also agrees to pay a counsel fee of $100 awarded to the attorney for the petitioner, and further agrees to pay $45 to the petitioner for his medical expenses of any kind whatsoever.

Erom the facts stipulated and the report of the physicians the settlement is fair to both parties and is approved by this court upon the distinct understanding of the petitioner and his attorney and the respondent and his attorney that a fundamental element of the settlement is the fact that any future or further disturbance resulting in an increase of disability to the petitioner are taken into consideration and are in a large measure the reason for the respondent’s willingness to agree to this settlement.

$$$$$$$

Charles E. Corbin, Deputy Commissioner.


author: John J. Stahl, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    DAVID GILPIN, PETITIONER, v. SERVICE ICE COMPANY, RESPONDENT.
    For the petitioner, Isadore Rabinowiiz.

    Por the respondent, Richard W. Balcer.

   sfc # & ❖ * ❖

At the time of the hearing, the respondent produced medical reports from Doctors Russell and Lucas, showing that there was no permanent disability, and it was further shown that the case had come on for an informal hearing on several occasions and an award made of no temporary disability and no permanent. In spite of this, the petitioner constantly complained of trouble and inability to work, so it was finally agreed between all parties that the case should be settled on the basis of a flat allowance of five per cent, of partial total permanent disability entitling the petitioner to twenty-five weeks7 compensation at the rate of $17 per week. It was further agreed that the attorney for the petitioner should be entitled to a counsel fee of $50 from the amount of the award, and that $50 for medical examinations and fees was to be paid by the petitioner. The petitioner was placed upon the stand and after the matter was explained to him fully, he indicated his acceptance of this agreement and his desire to have an award entered on that basis.

John J. Stahl, Referee.


author: Per Curiam.

text:
    PETER PETERSON, PLAINTIFF, v. REBECCA KRINICK AND HARRY KRINICK, DEFENDANTS.
    Submitted May term, 1929
    Decided December 21, 1929.
    Before Justices Trenchard, Lloyd and Case.
    Bor the plaintiff, Goult, Satz & Tomlinson.

    Bor the defendants, Turner & Stalter.

   Per Curiam.

This is an application for rule to show cause why a new trial should not be granted on the ground that the verdict was excessive. An examination of the proofs and the arguments leads ns to the conclusion that a rule to show cause should issue. Let it issue accordingly.


text:
    ALLEN SCHIFFMAN & COMPANY, PLAINTIFF-APPELLANT, v. JOSEPH B. BURNSON, DEFENDANT-RESPONDENT.
    Submitted October term, 1929
    Decided December 19, 1929.

      Before Justices Parker, Black and Bodine.
    Eor the plaintiff-appellant, David Goldstein.

    Eor the defendant-respondent, Eugene R. Hayne.

   Per Curiam.

This suit was brought to recover for a breach of contract the sum of $325 in the District Court of the First Judicial District of Monmouth county. The defendant filed a specification of defenses and a notice of recoupment, claiming $500 damages. The case was tried by the court without a jury, one witness sworn on behalf of the plaintiff and one witness sworn on behalf of the defendant, resulting in a judgment by the court as follows: “The recoupment will be disallowed. Let judgment of no cause of action be entered on the plaintiff’s case.” The case grew out of the purchase and sale of one hundred shares of the stock of the Jefferson Insurance Company and one hundred shares of the stock of the Merchants and Manufacturers Fire Insurance Company. There was no written contract of sale, and, hence, under section 4 of the Sales act (Comp. Stat., p. 4648), as the price of the stock sold was in excess of $500 the contract was not enforceable by action unless the goods or part thereof had been delivered and accepted, which was not the fact, or unless the buyer had given something in earnest to bind the bargain or in part payment. In this aspect it was admitted that after some time the buyer had paid plaintiff’s $18.65 for interest on the balance carried on their books. In our judgment, that payment does not take the case out of the statute. The check for interest was neither earnest nor part payment, nor did it on any other g;round take the case out of the statute. The other questions involved are largely questions of fact, and as to these we are satisfied with the conclusions of the trial judge, who wrote quite an elaborate opinion vindicating his conclusions.

The judgment of the First Judicial District Court of Monmouth county is therefore affirmed, with costs.


text:
    MOSES HAMBURGER, PLAINTIFF, v. CHARLES HAMBURGER ET UX., DEFENDANTS.
    Submitted October term, 1929
    Decided December 19, 1929.
    Before Justices Parker, Black and Bodike.
    For the defendants, Albert 0. Abbott.

    For the plaintiff, Robert K. Bell.

   Per Curiam.

The only point involved in this ease is the liability of a married woman, on a judgment confessed by a husband and wife. The judgment was the result of a bond executed by the husband and wife, on the first day of August, 1926. Attached to the bond was a warrant, in the usual form, to confess judgment on the bond. The judgment was entered January 8th, 1929. At the time the bond was executed, a mortgage was executed as security for the bond, on property in Ocean City. The sole owner of the property was the husband. The only right the wife had in the property was an inchoate right of dower. The mortgage was foreclosed, the sale of the property resulting in a deficiency of $2,976.70; hence, the confessed judgment. The proceeds of the mortgage went exclusively to the benefit and use of the husband. A rule to show cause was allowed by a justice of the Supreme Court, on behalf of the wife, Eannie Hamburger, why the judgment entered on the 8th day of January, 1929, should not be set aside and vacated. We think under the law, as it existed, when the bond and mortgage was executed, viz., August 1st, 1926, the judgment against the wife should be vacated. The only justification that is attempted to be made for holding the wife liable is under Pamph. L. 1927, p. 33. But there is no suggestion in that act that it is or was intended to have any retroactive force; in fact, it expressly provides: “After the passage of This act/ ” &c. If, however, the wife was not liable on the bond, when it was made, she could not be made liable thereon by a later statute. The case of Van Deventer v. Van Deventer, 46 N. J. L. 460, is directly in point, that case is controlling. The judgment as to the wife, Eannie Hamburger, is set aside and vacated with costs.


text:
    EDWARD S. F. RANDOLPH v. CITY OF RAHWAY ET AL.
    Argued December 19, 1929
    Decided December 19, 1929.
    Before Justices Trenohard, Parker and Case.
    Eor the motion, Conover English and Francis V. Dobbins.

      Contra, J. Edward Ashmead.

   Per Curiam.

Upon the hearing on this motion we have not been satisfied that the allocatur should be vacated, and therefore the motion is denied, without costs.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    FRED BLEVIS, PETITIONER, v. HAY FOUNDRY AND IRON WORKS, RESPONDENT.
    Eor the petitioner, Meyer M. Semel.

    Eor the respondent, Richard W. Baker.

   % % % % % # s£

On behalf of the petitioner Doctors Ilorland and Kessler were called to testify and in addition the petitioner took the stand in his own behalf. On behalf of the respondent Doctors McCauley, Rnoff and Griffith were called to testify and the case resolved itself into one where it was admitted that the petitioner received an injury by accident arising out of and in the course of his employment with the respondent on February 21th, 1928, and that his wages were $25.20 per week. It was further agreed that the injury received by the petitioner on that date was a fracture of one rib which was treated at the Now Jersey Manufacturers’ Association Hospitals, Incorporated, by Dr. Griffith. The question was as to the extent of temporary disability and whether or not there was any permanent disability as a result of the fractured rib and also as the result of the exacerbation of the psoriasis from which the petitioner is suffering.

In regard to the temporary, the petitioner testified that he returned to work within a period of five to six weeks after the accident, and accordingly I find on the question of ternporary disability that the petitioner was unable to work for a period of six weeks and is therefore entitled to five (5) weeks’ compensation for temporary disability at the rate of sixteen dollars and eighty ($16.80) cents per week.

In regard to the question of permanent disability I find that Dr. Kessler, testifying for the petitioner, found there was no permanent disability as a result of the fractured rib and this was corroborated by Dr. Griffith and Dr. Ruoff for the respondent, although Dr. Horland for the petitioner testified that there was five (5%) per cent, of partial total permanent disability. Therefore, I find as a result of the rib injury itself that there is no permanent disability.

In relation to the psoriasis, I find that the petitioner admittedly was suffering from the psoriasis during the time he was in the army a little over ten years ago, but he claimed that after leaving the army and receiving several months’ treatment, the psoriasis cleared up and he claims that he has not been troubled with it since. The respondent’s testimony seemed to be to the effect that the underlying condition of psoriasis, which could not have been caused by an accident, could be inflamed so as to cause an exacerbation as a result of striking the rib causing the rib injury. I find that the petitioner is suffering from a condition of psoriasis at the present time, but I further find from Dr. Griffith’s testimony, who is the attending physician, that the only aggravation of the underlying condition of psoriasis was directly under where the adhesive tape was placed, whereas he also found marks of psoriasis on his arms and other parts of his body which he says were not caused by the fracture of the rib. Dr. Kessler, for the petitioner, testified that he would have granted an award of ten (10%) per cent, partial total disability, but admitted that he could not state whether or not the exacerbation of the psoriasis was a permanent condition. Dr. Horland likewise stated that he could not say whether the exacerbation was a permanent condition, but if the underlying psoriasis was a permanent condition he felt that the exacerbation should be classed as a permanent disability also, and that the petitioner should be entitled to ten (10%) per cent, of partial total permanent disability for this. On the other hand, Dr. Griffith stated that in the nature of things the exacerbation was only a temporary condition and that the only exacerbation found was in the one locality whereas the psoriasis had been found in other parts of the anatomy as well. Dr. Buoff stated that he thought the exacerbation was only temporary although the condition of psoriasis was probably permanent. Dr. MeCaulay, who was the only skin specialist among the physicians, stated that the exacerbation was only a temporary condition although he could not state how long it would take to clear up, as it might do so over night or take some time to clear up. He went on to say, however, that he did not consider this a serious case and the petitioner himself stated that the psoriasis did not prevent him from working and also the doctors testified that the petitioner could work with the condition of psoriasis that he had. In fact, the doctors of the respondent were fairly clear in stating that the psoriasis did not cause any permanent disability within the terms of the Compensation law of this state, and Dr. MeCaulay in particular was certain of this fact in this particular case.

Accordingly, after carefully reviewing all the facts in this case, I find and determine that the petitioner has failed to sustain the burden of proving that he is suffering from any permanent disability in this case and therefore I find that ho is not entitled to an award for permanent disability.

Accordingly, I hereby order that the respondent pay to the petitioner five (5) weeks’ compensation for temporary disability at the rate of sixteen dollars and eighty ($16.80) cents per week. I further find that the petitioner has failed to sustain the burden of proving that he is suffering from any permanent disability and accordingly I award no costs and no attorney’s fee to the petitioner.

Harry J. Goas, Deputy Commissioner.


author: Habby J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    FRANK S. SPRAGUE, PETITIONER, v. THE SCHULTZ VEGETABLE OIL COMPANY, RESPONDENT.
    Por the petitioner, Edwin J. O’Brien.

    Por the respondent, McOarter & English.

   H» »5* i' »*•

Petitioner alleges that he sustained an accident arising out of and in the course of his employment with the respondent on •September 16th, 1927. He says that at that time he was employed by the respondent as a millwright, and while so engaged lost his balance while attempting to throw on a belt and was thrown or fell to the brick floor some distance below, striking his nose, face and left wrist. He alleges that as a result of the said accident he sustained serious and permanent injury. He alleges that he received injuries consisting of a fracture and displacement of the bones of the left wrist, facial injuries, and that he suffers from dizziness, vertigo, headaches, impairment of function of nose, stoppage of breathing through nose, loss of sense of smell and consequent loss of appetite; impairment of vision, head and brain injuries as well as central nervous disturbances. The petitioner claims very serious total permanent disability.

Respondent denies that the dizziness, vertigo, impairment of vision, head and brain injuries, as well as central nervous disturbances, conditions of the petitioner, are the result of an accident arising out of and in the course of his employment with the respondent, but the respondent takes all injuries, diseases, and any and all other conditions of petitioner into consideration, including any and all ultimate results of any and all of the various diseases, injuries and conditions of the petitioner, and basing the settlement not only on petitioner’s present condition but on any and all developments in his condition of any nature whatsoever which may be by him or by doctors alleged to be results of his alleged accident, either directly or by way of aggravation is willing to settle the entire matter for twenty per cent, of total permanent disability at the rate of $17 a week, ten per cent, of which has already been paid to the petitioner. Respondent .also agrees to pay as its part of a counsel fee of $150 awarded to the attorney for the petitioner the sum of $75. The petitioner is to pay the balance of $75 counsel fee, and the petitioner is also to pay all medical expenses and costs of X-rays incurred by reason of the alleged accident.

From the testimony and the facts stipulated, the settlement is fair to both sides and is approved by this court upon the distinct understanding of the petitioner and his attorney and the respondent and its attorneys that a fundamental element ®f the settlement is the fact that any future or further disturbances resulting in an increase of disability to the petitioner are taken into consideration and are in a large measure the reason for the respondent’s willingness to agree to this settlement.

% i’fi ^ ¡¡<

Habby J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    JOHN J. KEOGH, PETITIONER, v. CENTRAL RAILROAD OF NEW JERSEY, RESPONDENT.
    Por the petitioner, John J. Meehan.

    For the respondent, William F. Hanlon.

   # i'.i # íjí íH H* *£

Thereupon the said deputy commissioner, the Honorable Charles E. Corbin, found and determined as follows:

Petitioner was a deck-hand in the employment of the respondent and was so employed as a deck-hand on the ferryboat “Lakewood.” The accident to the petitioner occurred at the Jersey City terminal entrance to ferry slip of the respondent railroad company. At such time the petitioner was walking to his boat, the aforesaid ferryboat “Lakewood,” for the purpose of assuming his regular daily duties as deck-hand. The petitioner received the injuries in question, viz., fracture of the left ankle, by falling to the ground.

The petitioner’s duties in connection with said ferryboat were to see that boat was properly fastened to pier on its entry from either Jersey City or New York side, and various other duties performed by all said deck-hands.

The ferryboat “Lakewood,” on which petitioner was about to work, ran between Jersey City and New York, carrying passengers who would either board a train for points west at Jersey City, or having been discharged from trains at Jersey City would continue on their way to New York by way of said ferryboat “Lakewood.”

Erom the foregoing set of facts, I find that at the time of the accident the respondent was engaged in interstate commerce.

The fact that the petitioner had not yet actually reached his boat is immaterial. At the time of the accident he was already in the ferry shed of the respondent on his way to his boat which he would board from said ferry shed. In this connection, therefore, the instant case is controlled by Erie Railroad Co. v. Winfield, 244 U. S. 170 (at p. 173), wherein the United States Supreme Court said, inter alia:

“In leaving the carrier’s yard at the close of his day’s work the deceased was but discharging a duty of his employment. See North Carolina Railroad Co. v. Zachary, 232 U. S. 248, 260. Like his trip through the yard to his engine in the morning, it was a necessary incident of his day’s work and partook of the character of that work as a whole, for it was no more an incident of one part than of another. His day’s work was in both interstate and intrastate commerce, and so when he was leaving the yard at the time of the injury his employment was in both. That he was employed in interstate commerce is therefore plain, and that his employment also extended to intrastate commerce is for present purposes of no importance.” See, also, Lutes v. The Central Railroad Company of New Jersey, 3 N. J. Mis. R. 795, wherein the facts were as follows: Petitioner’s decedent was on his way to work as a brakeman on a train of the respondent. The train upon which he was to work was engaged in both interstate and intrastate commerce. At the time of the accident, decedent was in the yard of the respondent on his way to his train when he was killed. In this case decided by me it was held that the ease of Erie Railroad Co. v. Winfield, supra, controlled, and I feel that the two foregoing cases control the present one.

Since the petitioner was engaged in interstate commerce at the time he met with his injury, the provisions of the New Jersey Workmen’s Compensation act can have no application, and the workmen’s compensation burean has no jurisdiction. Rounsaville v. The Central Railroad Company of New Jersey, 90 N. J. L. 176; New York Central Railroad Co. v. Winfield, 244 U. S. 147.

*******

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    RICHARD NUNN, PETITIONER, v. M. & N. TRUCKING AND FORWARDING COMPANY, INCORPORATED, RESPONDENT.
    Eor the petitioner, Louis Hoierman.

    Eor the respondent, McCarter & English.

   A formal petition for compensation having been filed by the petitioner in the above:entitled cause, to which an answer was thereafter filed by the respondent, and the matter coming on in due course to be heard before this court at Jersey City, and a basis for settlement of this case having been agreed upon by and between the petitioner, his attorney, Louis Ho"berman, and the respondent and its attorneys, and said basis of settlement having been presented to this court and the testimony of the petitioner having been taken and heard in open court as well as the testimony of Dr. Londrigan, an impartial physician agreed upon between the petitioner and the respondent, it is found and determined from the said testimony and from the stipulated facts as follows:

Petitioner alleges that he sustained an accident arising out of and in the course of his employment with respondent on February 21st, 1928. He says that at the time he was employed by the respondent as a foreman and was operating an automobile at the time of the accident, and while so engaged the automobile which the petitioner was operating collided with another automobile. lie alleges that as a result of the said accident he sustained serious permanent injuries. He alleges that he received a contusion of the right knee cap, right hip, right arm and contusions of the head and a fracture of the nose. He claims that he suffers from loss of sleep, that his breathing is impaired by reason of the fracture to his nose, and he suffers from loss of smell and is afflicted with nervous disturbances. The petitioner claims fifty per cent, permanent disability of the nose.

Eespondent denies that the contusions of the right knee cap,, right hip, right arm, contusions of the head, fracture of the nose, loss of sleep, stoppage of breathing and nervous disturbances are the result of an accident arising out of and in the course of petitioner’s employment with respondent, but the respondent takes all injuries, diseases, and any and all other conditions of petitioner into consideration, including any and all ultimate results of any and all of the various diseases, injuries and conditions of the petitioner, and basing the settlement not only on petitioner’s present condition but on any and all developments in his condition of any nature whatsoever which may be by him or by doctors alleged to be results of his alleged accident, either directly or by way of aggravation, is willing to settle the entire matter for two weeks’ temporary disability at $17 a week and twelve and one-half weeks’ partial permanent disability at the rate of $17 a week. Eespondent also agrees to pay a counsel fee of $50 awarded to the attorney for the petitioner and $55 for medical services rendered.

From the testimony and the facts stipulated, the settlement is fair to hoth sides and is approved by this court on the distinct understanding of the petitioner and his attorney and the respondent and its attorneys, that a fundamental element of the settlement is the fact that any future or further disturbances resulting in an increase of disability to the petitioner are taken into consideration and are in a large measure the reason for the respondent’s -willingness to agree to this settlement.

Hí H« Hi Hi • Hi Hi

Chaeles E. Coebdst, Deputy Commissioner.


author: Pee CuEiAivr.

text:
    NEW YORK AIR TERMINALS, INCORPORATED, PROSECUTOR, v. JOHN J. McGOVERN, CLERK OF THE COUNTY OF HUDSON, AND ERIE TERMINALS RAILROAD COMPANY, DEFENDANTS.
    Argued December 12, 1929
    Decided December 19, 1929.
    Before Justices Tbestchaed, Lloyd and Case.
    Eor the prosecutor, Mark A. Sullivan.

    Eor the defendants, Robert J. Bain.

   Pee CuEiAivr.

We consider that the question whether or not section 13 of Pamph. L. 1914, p. 490, authorizes the taking by condemnation of the land of the prosecutor, is a fairly debatable question, and that the prosecutor is entitled to its writ in order that the matter may be fully and formally presented, heard and decided.

We also consider that the question whether or not the prosecutor is estopped by its failure to object to the appointment of the commissioners until the testimony had been taken, in large part, before the commissioners, is likewise a fairly debatable question where, as here, the prosecutor contends that there is no “legal foundation for the taking,” to use the language of Slocum v. Township of Neptune, 68 N. J. L. 595, the case cited by the defendant railroad.

The writ will be granted, and a draft of it should be presented promptly for formal allowance to Mr. Justice Case. It should be made returnable ten days after the date of allowance, and the allowance of the writ is to be upon the condition that it bo brought on for argument at the next ensuing term of the court.


text:
    THE STATE, EX REL. ROBERT L. EVANS, INCORPORATED, RELATOR, v. ALVIN J. WILLIAMS, BUILDING INSPECTOR OF THE BOROUGH OF ROSELLE AND THE ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF ROSELLE, RESPONDENTS.
    Decided December 30, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the relator, Alan Bruce Conlin and Bari A. Merrill.

    Eor the respondents, R. Robinson Ghance.

   Per Curiam.

This is an application for a writ of mandamus to compel the issuance of a certificate of occupancy permitting the use by two families of a dwelling at 145 West Fifth avenue, Roselle. The property has a frontage of seventy-five feet on West Fifth avenue and a depth of two hundred feet. Upon the property is a two-story and attic frame house recently remodeled so as to provide accommodation for two families.

Roselle has a zoning ordinance pursuant to the constitution of the state and chapter 274 of the laws of 1928. Under this ordinance relator’s property is in a zone where occupancy by two families is forbidden. A similar ordinance was in existence when he purchased the property in 1927.

An appeal from the action of the building inspector in refusing to issue a certificate of occupancy was taken to the board of adjustment, who upheld his action.

There is nothing in the record to rebut the presumption that the ordinance is a reasonable exercise of the police power. Oxford Construction Co. v. Orange, 103 N. J. L. 355. A variance between the title and body of an ordinance does not affect its validity. Hershoff v. Beverly, 45 N. J. L. 288; Loertscher v. Jersey City, 84 Id. 537.

Mandamus is a discretionary writ. Koplin v. South Orange, 6 N. J. Mis. R. 489; affirmed, 7 N. J. Adv. R. 348. The application will be denied.


text:
    RAYMOND C. KEITH ET UX., PLAINTIFFS, v. RAYMOND FISH, TRADING AS FISH'S EXPRESS, DEFENDANT.
    Submitted October term, 1929
    Decided December 28, 1929.
    Before Justices Parker, Black and Bodine.
    For the plaintiffs, Albert 8. Woodruff.

    For the defendant, Horace 0. Brown and Bobert J. Tait Paul.

   Per Curiam.

This suit was brought to recover compensation for personal injuries to the plaintiffs, and incidental injuries to the husband, Raymond C. Keith. The plaintiff Raymond C. Keith, on the 1st day of May, 1928, was operating an automobile in which his wife, Margaret A. Keith, was riding, the defendant’s automobile or truck on the King’s Highway and Ellis street, in Camden, ran into the plaintiffs’ automobile, while halted or stopped by reason of a red traffic light set against him causing the injuries sued for. Negligence of the defendant is charged. The trial of the case resulted in verdicts for the plaintiffs—$750 in favor of Eaymond C. ICeith and $4,000 in favor of Margaret A. Keith. The defendant obtained a rule to show cause aid writes down three reasons for a new trial. Our reading of the testimony sent up in the printed book with the rule to show cause and the briefs of the respective counsel lead us to the conclusion that the verdicts should not be disturbed, and the rule to show cause should be discharged. The third reason, newly-discovered evidence, is not argued in the defendant’s brief, and is therefore not considered. The rule to show cause is discharged.


text:
    LOUIS APPLEBAUM, PLAINTIFF, v. JACOB BACHRACH ET AL., DEFENDANTS.
    Submitted October 15, 1929
    Decided December 30, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiff, Nathaniel W. Franzblau.

    Eor the defendants, Pitney, Hardin & Skinner.

   Per Curiam.

This is a rule to show cause why the service of summons upon the defendant Hannis Distilling Company should not be set aside. The rule was granted upon a special appearance. It appears from the sheriff’s return that service of the summons and complaint was made upon the defendant Hannis Distilling Company “by delivering a true copy thereof to New Jersey Registration and Trust Company by Harry II. Picking, Sec. & Treas., at the office, 525 Main St., E. Orange, N. J., July 21st, 1926.” Hannis Distilling Company is a corporation of the State of West Virginia and is not incorporated under the laws of the State of New Jersey. 'At one time the New Jersey Registration and Trust Company acted as its registered agent but on December 6tli, 1918, pursuant to the statute, forwarded to the secretary of state its resignation as the registered agent of the company.

, It therefore appears that at the time of the alleged service of process the New Jersey Registration and Trnst Company was not the registered agent of the company and had not been such agent for over eight years, and that service of the summons has not been made upon any person in the State of New Jersey authorized to act as registered agent of Hannis Distilling Company.

It appearing, therefore, that the company upon whom service was made was not the defendant’s agent- there was no service of process within the meaning of the corporation act and the service will be vacated.

The general subject of substituted service of process upon foreign corporations is discussed in Kane v. Essanay Film Manufacturing Co., 98 N. J. L. 363.

The rnle will he made absolute.


text:
    EDNA LOUISE CARROLL, PLAINTIFF, v. DAVIS SEAMAN, TRADING AS ORPHEUM THEATRE, DEFENDANT.
    Submitted October term, 1929
    Decided December 28, 1929.

      Before Justices Parker, Black and Bodine.
    Eor the plaintiff, James Mercer Davis.

    Eor the defendants, Frank H. Higgins and Walter 8. Keown.-

   Per Curiam.

We think the rule to show cause in this case should be discharged. The suit was brought to recover compensation for personal injuries. The plaintiff, an actress, fell into the music pit of the theatre, causing the injuries sued for, negligence of the defendant being charged. The trial of the-case resulted in a verdict for the plaintiff for $3,700. The defendant obtained a rule to show cause and writes down seven reasons for a new trial. The plaintiff at the trial testified that “I walked in front of the light. The light was not as near the stage as that picture figures it. I walked in front, of the light, trying to find the steps, like this, and I thought I had the steps and I just fell down into the music pit. That’s all I remember. Q. Do you know how far it was down into the music pit? A. I would take it five to six feet from the stage.”

The verdict is not against the weight of the evidence. It is not excessive. It was not error for the trial court to refuse the motions to nonsuit the plaintiff or direct a verdict in favor , of the defendant. It was not error by the trial judge to-refuse to declare a mistrial. The rule to show cause is discharged.


text:
    ALEXANDRIA REALTY COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. BERTRAM WHITMAN, DEFENDANT-RESPONDENT.
    Decided December 30, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiff-appellant, George T. Naame and Paul M. Ealsburg.

    For the defendant-respondent, Ernest Curtis.

   Per Curiam.

The plaintiff brought an action for rent on a written lease for an apartment in Atlantic City. The defendant interposed the defense of an eviction and counter-claimed for breach of the covenant to furnish heat, hot water and for quiet enjoyment.

The trial judge gave judgment for the defendant, since the plaintiff had not sustained the burden of proof that there was not an eviction. We apprehend that upon proof of the written lease and the arrears in rent the landlord made a prima facie case, and that the burden of proof as to the eviction was upon the tenant. Gunther v. Oliver, 97 N. J. L. 376. We have doubt as to whether the testimony of the defendant’s witnesses established an eviction. O’Neil v. Pearse, 87 Id. 382.

The judgment below is reversed and a venire de novo awarded.


text:
    MARIO DI BLASI, PLAINTIFF-APPELLEE, v. JAMES B. HIGGINS, DEFENDANT-APPELLANT.
    Submitted October 15, 1929
    Decided December 30, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the defendant-appellant, Harry Spitzer.

    Eor the plaintiff-appellee, Esther Bechhoff.

   Per Curiam.

The landlord sued for unpaid rent for an apartment in Brooklyn -which, the defendant leased. The parties contemplated certain alterations at the time of the leasing which the landlord did his best to accomplish. The defendant moved away during the summer, and seeks to recover on a counterclaim because of a constructive eviction and for injury to his furniture.

Obviously, there was no constructive eviction since the alterations were being made with the knowledge and consent of the defendant and for his benefit.

There was, we think, evidence from which the jury might have found a surrender by operation of law, but this issue was not raised in the court below. So we cannot do otherwise than affirm the judgment below.


author: Pee Cueiam.

text:
    RICHARD PASCH, BY HIS NEXT FRIEND, ELIZABETH PASCH, AND ELIZABETH PASCH, INDIVIDUALLY, PLAINTIFFS, v. CHARLES STENBERG, DEFENDANT.
    Submitted October 15, 1929
    Decided December 30, 1929.
    Before Justices Paekee, Black and Bodine.
    Eor the plaintiffs, Andrew 0. Wittreich.

    For the defendant, William B. Stiies.

   Pee Cueiam.

A boy, while playing ball in Union City, New Jersey, was struck and injured by defendant’s automobile. The jury returned a verdict in favor of the boy’s mother for $1,000 for expenses incurred by her, and a verdict in favor of the lad for $1,250.

The plaintiffs’ rule for a new trial rests on the issue of •the adequacy of the damages in favor of the boy. In the light of the testimony of plaintiffs’ physician that he has made a complete recovery and that he merely suffers from a little toeing-in, it is unnecessary to disturb the verdict of the jury.

The rule will be discharged.


text:
    MARY CERAMI BY LOMNOTI CERAMI, AND GRACE CERAMI AND LOMNOTI CERAMI, PLAINTIFFS, v. LOUISE ZIMMERMAN AND FRED BLESSING, DEFENDANTS.
    Submitted October 15, 1929
    Decided December 30, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiffs, Donohue & O’Brien.

    Eor the defendant Ered Blessing, McCarter & English.

    Eor the defendant Louise Zimmerman, Samuel D. Williams.

   Per Curiam.

Mrs. Grace Cerami and her daughter Mary, on January 30th, 1928, were standing on the sidewalk at the northeast corner of Perry and Congress streets, Newark, New Jersey, when they were struck and injured as the result of an automobile collision in which the defendants’ cars were involved. Shortly before the occurrence, the defendant Blessing was driving north on Congress street and the defendant Zimmerman was driving east on Perry street.

The jury returned verdicts in favor of Mrs. Cerami for $10,000; in favor of the infant for $125, and in favor of her father for $250. The case is here on defendants’ rule to show cause.

The evidence as to the collision between the Zimmerman and Blessing’s cars raised an issue of negligence for the jury. As is usual in such occurrences, the witnesses do not agree. The jury were under no obligation to accept in its entirety either the Blessing or Zimmerman account of the collision. But the account of both indicate fault in the other. Both cars reached the intersection at about the same time. The roadway was slippery. Some of the witnesses say that the cars were going at excessive rates of speed, that neither blew a horn. There is no agreement in the testimony as to just how the collision happened. There is, however, testimony that both cars came up on the sidewalk, and one or both of them struck the Ceramis. Clearly, a question for the jury was presented.

Dr. Welles P. Eagleton, chief of the head service of the hospital, where Mrs. Cerami was taken shortly after the accident, testified that he visited the woman, diagnosed her case and prescribed treatments which were carried out by the resident physician. Later, he made a further diagnosis in the case, and testified as to the conditions which he had first observed, and which failed to yield to treatment. His testimony clearly corroborates, in so far as he testifies to the fractured orbit, Mrs. Ceramics testimony as to the condition of her eyes before the accident and afterwards. Obviously, he did not see the occurrence but he certainly is not precluded from testifying as to the conditions which he found shortly thereafter, which Mrs. Cerami says did not exist prior thereto and which resulted from the accident.

The trial judge, in a well-balanced charge, left it to the jury to say what sum of money would presently compensate Mrs. Cerami for the injuries sustained. There was testimony that these injuries were permanent, and mortality tables had been used as a basis for indicating her life expectancy. The charge, as a whole, takes no question from the jury which properly belonged to it. Of course, words can only be used one at a time and several thoughts cannot be expressed except in sequence.

It is urged that the trial judge failed to charge the jury that negligence must be the proximate cause of the injury in order that there might be a recovery. He was not requested so to do. His failure so to do was not brought to his attention and a reading of the whole charge indicates that the jury were to pass on that very question.

If the jury believed the testimony respecting the injuries to the eye and Mrs. Ceramics inaiblity to follow her vocation and avocation, the damages awarded are clearly not excessive.

Both rules will be discharged.


text:
    WALTER F. LONG, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF CATHERINE M. LONG, DECEASED, PLAINTIFF, v. HARRY KARP AND THE AUBURN NEWARK MOTOR COMPANY, A CORPORATION, DEFENDANT.
    Submitted October 15, 1929
    Decided December 30, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiff, Alexander Simpson.

    Eor the defendant Harry Karp, William B. Stites.

    Eor the defendant The Auburn Newark Motor Company, Goult, Saiz & Tomlinson.

   Per Curiam.

The plaintiff’s intestate, on November 3d, 1927, was killed while standing at the northwest corner of the Boulevard and Carlton avenue, Jersey City. A Eord car, owned by the defendant Karp, collided with a car owned by the Auburn Newark Motor Company. Karp had left his Eord car without a driver on Carlton avenue. In some way it moved down the street and collided with the Auburn Newark Motor Company’s car. The jury, after two days’ trial, returned a verdict of no cause for action. The issues in the case were admirably submitted to the jury in a careful charge. An examination ■of the record leads us to the conclusion that the verdict was proper.

On this rule, the plaintiff took the depositions of several .alleged eye witnesses as to the way in which Karp’s car was left on Carlton avenue. The manner in which Karp left his car was one of the issues of the case, and the alleged newly-discovered evidence is, for the most part, the testimony of persons who lived in the neighborhood at the time of the occurrence and who might, with reasonable diligence, have been interviewed before the trial. The alleged newly-dis■covered evidence would probably not change the result and is merely cumulative at the best of the testimony offered and not believed by the jury.

New trials are not granted because evidence has been discovered since the former trial, unless it further appears that the exercise of reasonable diligence would not have led to the discovery of such evidence before the trial. Hoban v. Stanford, 64 N. J. L. 426; Christie v. Petrullo, 128 Atl. Rep. 853.

The rule will be discharged.


text:
    MARY DAY ET UX., PLAINTIFFS, v. GEORGE W. WILSON, DEFENDANT.
    Submitted October term, 1929
    Decided December 28, 1929.

      Before Justices Parker, Black and Bodine.
    Eor the plaintiffs, Francis A. Gordon.

    Eor the defendant, Connolly & Huesion.

   Per Curiam.

The controlling or dominant facts out of which this suit arose are these: On October 2d, 1927, the plaintiff Maty Day was about to cross Ward street, in the city of Paterson, from the southerly side to the northerly side; she was standing along side and beyond her son’s car, which was parked by the southerly curb line of Ward street. Defendant was driving his car in a southerly direction on Main street and made a right-hand turn into Ward street, and in so doing swung his car on the side of the street on which the plaintiff Mary Day was standing, struck her on her hip and ankle with the left front mud guard of his car, inflicting severe injuries, for which the suit is brought. Negligence being charged against the defendant. The trial resulted in verdicts-for the plaintiffs—$5,500 in favor of Mary Day and $2,500 in favor of Reginald Day. The defendant obtained a rule to-show cause and writes down five reasons for a new trial. We find no sufficient reason for disturbing the verdicts rendered in this case. The verdicts are not contrary to the weight of the evidence, or contrary to the charge of the trial judge. They are not excessive under the evidence in the record. The question of negligence of the plaintiff Mary Day was properly submitted to the jury. The rule to show cause is discharged.


author: Pee Curiam.

text:
    ABRAM SHORTWAY, PLAINTIFF-APPELLEE, v. ERIE RAILROAD COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Submitted October 15, 1929
    Decided December 30, 1929.
    Before Justices Paekeb, Black and Bodine.
    Eor the defendant-appellant, Hobart & Minará.

    Eor the plaintiff-appellee, Edward F. Merrey.

   Pee Curiam.

The paintiff was a trainman employed by the Erie Railroad Company in its passenger service in interstate commerce. The action was brought under the Eederal Employers’ Liability act, and resulted in a verdict in favor of the plaintiff in the sum of $6,000. On this appeal two questions are argued—(1) that negligence on the part of the defendant was not proved, and (3) if it were the risk was assumed by the plaintiff.

About five miles out of Jersey City, the railroad company maintains train storage yards. Train crews report to the Jersey City station and are transported to the storage yards where they board their trains and back them into the Jersey City station for loading.

The plaintiff reported at the Jersey City station on November 11th, 1927, at three-thirty o’clock in the afternoon. He was taken to the storage yard and boarded his train. In his crew was brakeman White, who was not familiar with the operation of air brakes. The plaintiff and White were on the rear end of the train when they were about a half mile' from the Jersey City station. Plaintiff noticed that the train had passed an unlighted signal. He stopped his train and signaled the engineer to pull in the opposite direction so as. to clear the signal. It was quite dark and the signal was unlighted and not visible from the point where plaintiff stood. He left the train and started to walk in the direction of the signal along some planking between the rails, using his lantern as best he could to light his way. This planking was on a trestle crossing Jersey avenue, Jersey City. The planking extended over the trestle, but when the plaintiff came to. the end of the trestle he fell into a large excavation about six feet deep and suffered the injuries of which he complains. The excavation was in the railroad right of way and at the-end of the planking. The plaintiff’s testimony so accurately describes the occurrence that it will, in part, be quoted at some length: “And I stepped out to give the engineer a. signal to pull ahead with the train, on account that you can’t start if you are 'past the signal, you are blocking up. another switch, so I got out and signalled the engineer to. pull ahead, and he did. And as we stopped, why, we thought we heard the blade go down on this signal, but I wanted to-be sure before I went on. I was going to go up there with my lamp to see how the switch was, whether the signal was down, whether the blade was down, or whether it wasn’t. Q. Then you went over that, did you? A. Yes, but at the end of the trestle I stepped off into the excavation, and there was-an excavation there between the tracks. Q. Could you see it ? A. No, I couldn’t see it. I had a lamp with me and the light was small, and on account of the condition you can’t see right close to you with this lamp. It shows about four feet away from you. The light is such you can see as you walk along; you -can’t see directly where you step. Q. That was your-regular trainman’s lantern that you had furnished by the railroad company? A. Yes. Q. All right. Now you came along and you spoke about a hole, excavation. Just describe what that was. A. At the end of this planking was a hole, an excavation left open, and that runs down from the signal about forty degrees. So this hole was about six feet deep right at this planking. Q. Well, now, just describe this excavation? Could you find out what the purpose of it was? A. It seemed to me as if these tracks had been raised since I had been there before. I had a run for five years and I never had occasion to come this way, never had occasion to go to the yard for a train in that five years’ time. They raised all these tracks. They put a terminal building in there and they raised up those tracks to meet that terminal building, and this hole was left open and it hadn’t been filled in between the tracks.”

It is the contention of the railroad company that the case is ruled by Delaware, Lackawanna and Western Railroad Co. v. Koske, 279 U. S. 7. We think that this contention overlooks the difference in facts. In the Koske ease, the plaintiff stepped into an open drain or ditch in the railroad yard. There is no evidence that this drain was not suitable and appropriate for the purposes for which it was intended, and obviously no court can dictate to railroads the way in which they shall meet their yard engineering problems. On the other hand, in the present case there is nothing to suggest that the excavation six feet deep at the end of the plank walk in a railroad yard has any suitable or appropriate purpose, or that any engineering problem is involved in leaving such an excavation at the end of a plank walk designed for trainmen.

In this case a question for the jury was presented and we see no error in their finding.

The proofs in this case further show that the employe did not know of this particular risk. He had not been in the yard since the excavation was made or the tracks were elevated, and there was nothing to warn him of the excavation at the end of his path. It can hardly be contended that such an excavation is one of the ordinary risks of railroading.

We do not believe that when the charge of the court is examined as a whole that it can seriously be contended that the jury were permitted to speculate as to what duty existed upon the part of the railroad. Certainly a pit at the end of a path designed for workmen to walk upon is a danger to employes not familiar with the locality towards dusk or after dark. It would seem absurd to say that such a pit made the pathway reasonably safe.

The rule will be discharged.


author: Porter, C. C. J.

text:
    THE STATE OF NEW JERSEY, EX REL. JOSEPH J. WEINBERGER, RELATOR, v. SAMUEL HILFMAN, RESPONDENT.
    Decided December 30, 1929.
    Eor the relator, Merritt Lane.

    Eor the respondent, Edward F. Men-ey.

   Porter, C. C. J.

This action is one brought by the relator, Joseph J. Weinberger, against the respondent, Samuel Hilfman, to determine the title to the office of city counsel to the city of Passaic. It is brought under the provisions of section 4 of the Quo Warranto Statute, 3 Comp. Stat., p. 4212.

Questions of fact were raised by the pleadings and the case came before this court for the trial of the issues thus raised. At the trial the respondent withdrew his plea that the relator had abandoned the position of city counsel by refusing to perform the duties of the office. It was thereupon agreed by and between counsel that the issues raised by the pleadings be tried by the court without a jury. Briefs have been submitted and considered.

The salient facts, as disclosed by the pleadings, are that the relator was duly appointed as city counsel of the city of Passaic on June 28th, 1927, and reappointed to that office on May 7th, 1929, to serve for a term ending on the third Tuesday in May, 1931; that on or about August 2d, 1929, he, together with others, was indicted by the grand jury of Passaic county for conspiracy; that on August 13th, 1929, he was suspended by the director of public affairs from office as city counsel, effective from that date; that on September 3d, 1929, the director of public affairs appointed the respondent to the said office of city counsel for a term ending on the third Tuesday in May, 1931, which action was ratified and confirmed on said date by the board of commissioners of said city; that the respondent thereupon entered upon the duties of the said office and continues to perform the same. Both parties claim the title to the office.

There is no discretionary power in this court such as may be exercised in a proper case by the Supreme Court in quo warranto proceedings. The duty of this court is solely to determine the questions at issue on the pleadings.

It is the contention of the respondent that this action cannot be maintained under the statute; that the proper remedy is by writ of certiorari to review the action of the director of public affairs in suspending the relator and also that proper parties are not joined. These contentions are without merit. Under the present statute and the decisions the action is properly brought, both as to subject-matter, the relief sought, and as to parties. Davis v. Davis, 57 N. J. L. 82; Manahan v. Watts, 64 Id. 468; Brodman v. Rade, 101 Id. 207.

The pertinent question is whether the action of the director of public affairs in suspending the relator was a lawful act or not. Passaic is subject to the provisions of the Walsh act, so-called.- As amended in 1929 this act vests authority in the board of commissioners to remove from office any officer or employe appointed by it “at any time for cause, after public hearing.”

The power to expel, i. e., remove, does not include the power to suspend. State v. Jersey City, 25 N. J. L. 536 (at p. 544).

No authority is given by the statute either to the board of commissioners or to any director for the suspension of any officer or employe.

It seems clear that while the director of public affairs says that he suspended the relator, what he did in fact and in effect was to summarily remove him. By his act in shortly afterwards appointing the respondent to the position, for the balance of relator’s term, he unmistakably showed that he considered the position vacant and that the relator had not been suspended, but removed. The board of commissioners undoubtedly took the same view when on the same day it ratified and confirmed the action of the director of public affairs in filling the vacancy in the office.

The Supreme Court said, in State v. Jersey City, supra: “Suspension from the duties of the office creates no vacancy; the seat is filled, but the occupant is silenced.”

The only power of removal is that expressly vested in the board of commissioners by the statute above mentioned, there is no implied power. Murphy v. Freeholders of Hudson County, 92 N. J. L. 244.

The only power of removal during the term of office of relator was for cause and after public hearing. No cause of removal was given and no public hearing was had.

The conclusion is obvious that the removal of the relator being without warrant of law was a nullity and of no effect. The title to the office remains in the relator and the respondent must be ousted therefrom.

A postea in accordance with these findings may be filed.


author: Pee Cubiait.

text:
    GERARDO SICA, PLAINTIFF, v. THE HOME INSURANCE COMPANY, NEW YORK, A CORPORATION, AND INDUSTRIAL ACCEPTANCE CORPORATION, A CORPORATION, DEFENDANTS.
    Submitted October 17, 1929
    Decided January 2, 1930.
    Before Justices Pabkeb, Black and Bodcste.
    Por the plaintiff, Nicholas La Vecchia.

    Eor the defendant, Arthur T. Vanderbilt.

   Pee Cubiait.

This is a suit on a fire insurance policy covering an automobile. The plaintiff had judgment.

The policy was issued May 3 3th, 1926, and contained the following warranty: “(3) The automobile will be used for private use and business calls and is usually kept in garage located in New Brunswick.”

At the trial the plaintiff testified that he never lived in New Brunswick and that the car was never at any time kept in a garage in New Brunswick from the date of the issuance of the policy. On the contrary, he stated that the car at all times from the issuance of the policy was kept in a garage in Newark.

His brother, Angelo, however, testified that from May 13th, ]926, to sometime in August, 1926, he lived at No. 19 Lefebre avenue, New Brunswick, and that during that time he had kept the car in a private garage in the rear of this house. He further stated that from sometime in August, 1926, to the date of the loss, April 1st, 1927, a period of nine months, the ear was kept in garagbs in the city of Newark.

“When the facts are not in dispute and the inference from them are not in doubt, the question at issue is one of law for the court.” Belcher v. Manchester Building and Loan Association, 74 N. J. L. 833, 839.

It is not in dispute that for months the car was not kept in a private garage in New Brunswick. It is no more than reasonable that a fire insurance company should select the place of its risk.

The words “usually kept” have an ordinary meaning. A car may be usually kept in New Brunswick and yet be covered when it may be at some other point by reason of the owner’s travel or convenience. But if it is never kept in New Brunswick or not for nine months, by no stretch of imagination can it be said to be usually kept in Nejv Brunswick.

We further are of the opinion that the usual place of the risk was a warranty in the usual sense of that term. Courts do not write better contracts than parties agree to. Smith v. Fidelity and Deposit Co., 98 N. J. L. 534, 536. Locality is an essential part of a fire risk. Many insurance companies will insure only a certain number of risks in a given neighborhood for obvious reasons. If the insured desires to permanently place his property in a different locality he can consult the insurance company about the change.

The rule will be made absolute.


author: Baokes, Y. C.

text:
    Catherine Dotto, executrix, &c., complainant, v. Pietro Ciamboli and Maria Ciamboli, defendants.
    [Decided December 26th, 1929.]

      Mr. Philip J. Scholland, for the complainant.

      Mr. Ovidio O. Bianchi, for the defendant.
   Baokes, Y. C.

The bill is to foreclose a real estate mortgage made by the defendant Ciamboli to one Laudati for $4,800, May 1st, 1924, payable May 1st, 1928. Laudati assigned the mortgage to Dotto, the complainant’s testator, June 1st, 1925, to secure a loan of $2,500. The documents were delivered and duly recorded and remained in the possession of the assignee or his estate. Ciamboli had no actual notice of the assignment and, in ignorance, paid all but $600 of the mortgage debt to Laudati] $866 before the assignment was recorded and $3,334 after, which Laudati pocketed. The money was paid in small sums as Ciamboli was able to earn and save it. There is $1,800 due on the $2,500 loan—a memorandum found in Dotto’s papers show three payments aggregating $700. Laudati claims to have paid the Dotto loan in full and he gave at least three different and conflicting versions of how that was done, any of which, if the others were true, was obviously false ] and to round out his string of falsehoods he says he was authorized by Dotto to collect the principal ■and interest and that he paid it over to him as he got it. The truth is not in him. He is both thief and liar, and resorted to perjury to shield himself from the wrath of Ciamboli, fearing nothing from the dead Dotto. His testimony is without probative value.

Ciamboli was charged- in law with notice of the recorded assignment, and payments made thereafter to Laudati cannot be credited on the mortgage debt. Emery v. Gordon, 33 N. J. Eq. 447; Steadman v. Foster, 83 N. J. Eq. 641.

The complainant is entitled to a decree for $1,800 and interest.


text:
    MICHAELANGELO GALLO ET AL., PROSECUTORS, v. FRANK B. MOFFETT, BUILDING INSPECTOR ET AL., DEFENDANTS.
    Submitted October 11, 1929
    Decided January 2, 1930.
    Before Justices Pahkek, Black and Bodine.
    Eor the prosecutors, Earl A. Merrill.

    For the defendants, Paul Q. Oliver.

   Pee Cueiam.

It is sufficient to say, without going into the merits of the matter, that this application is out of time. It is an alternative to an application for mandamus which was made to Mr. Justice Black on August 17th, 1929, and refused by him on the same day. (No. 214 of the present term.) The ground of the refusal appears to have been that certiorari and not mandamus was the proper remedy. Counsel for prosecutor made no alternative application to Mr. Justice Black for a certiorari, but instead, gave notice on August 22d of such an application to this court on October 1st. This is resisted on the ground that chapter 274 of the laws of 1928, by the last paragraph of section 4, on page 702, which is applicable here, provides that no certiorari shall issue unless applied for within thirty days after filing the decision of the board of adjustment. The reply made is that service of the notice on August 22d was within the thirty days, and that this amounts to an “application.”

It is difficult to conceive that this proposition is seriously urged. The application is denied, with costs.


text:
    MICHAELANGELO GALLO ET UX., RELATORS, v. FRANK B. MOFFETT, BUILDING INSPECTOR, ETC., ET AL., DEFENDANTS.
    Argued October 3, 1929
    Decided January 2, 1930.
    Before Justices Paekee, Black and Bodine.
    Eor the relators, Alan Bruce Gonlin and Bari A. Merrill.

      Contra, Paul Q. Oliver.

   Pee Cueiam.

An application in this case was made to a justice of the Supreme Court for a rule to show cause why a mandamus should not issue directed to the building inspector of the town of Westfield, compelling him to issue a permit to the relators to build a brick and concrete block extension to their dwelling at No. 656 West Broad street, such extension to be used as a store, in violation of the zoning ordinance of the district zone, in which the property is situated. The rule was denied, hence, an application to the court in banc. Pamph. L. 1927, p. 396, does not prevent this application from being made, that statute has no application. It would serve no useful purpose to pursue the argument of the relators through all the points argued in the brief; suffice it to say, we think the rule should be denied. The writ of mandamus is discretionary. Silvester v. Mayor, &c., of Princeton, 104 N. J. L. 18. It is never issued, where the legal right of the relator is in doubt or unsettled. Erion v. Pension Commission, 104 N. J. L. 464. The case of Kaslovisky v. Castles, 6 N. J. Mis. R. 599, is an authority for denying the rule. The application for a rule to show cause is therefore denied, with costs.


author: Pee Ctjbiam.

text:
    ANTHONY GALIOTO ET AL., PLAINTIFFS-RESPONDENTS, v. ERIE RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted October term, 1929
    Decided January 2, 1930.
    Before Justices Pabkee, Black and Bodine.
    Eor the plaintiffs-respondents, Nicholas La Vecchia and Herbert A. Kuvin.

    Eor the defendant-appellant, Hobart & Minará.

   Pee Ctjbiam.

This suit was brought in the District Court of the Second Judicial District of Essex county. It was to recover alleged damages to two carloads of bananas purchased from the Banana Sales Corporation of July 17th, 1928; shipped from pier 26, East river, New York, about five p. m., and delivered to the plaintiffs by the defendant at the Bloomfield freight yard, at Bloomfield, New Jersey, on the morning of July 18th, 1928, at about eleven forty-five A. m. Negligence in delaying the delivery of the cars is charged on account of the hot weather. The case was tried by the judge without a jury, resulting in a judgment for the plaintiffs for $468.75. The trial judge filed a finding of facts in which he found as follows: “I find as a matter of fact that the defendant was negligent in permitting a period of about four hours to expire between the time the merchandise was at the Forest Hill junction and the time that they were placed in position for unloading, and that said defendant did not use reasonable dispatch in delivering said merchandise.”

We concur in the findings of fact by the trial court. The defendant filed five specifications of the determinations or directions of the District Court, with respect to which the defendant is dissatisfied in point of law. They are argued, however, under four heads in the appellant’s brief. First, the trial judge erred in refusing defendant’s motion for a nonsuit. Second, the trial court erroneously denied the motion of the defendant for the direction of a verdict. Third, the trial court erred in admitting certain testimony regarding the time of delivery. Fourth, there is no basis for the judgment entered by the trial court. These all involve questions of fact except number three, decided by the trial court on the evidence before that court against the defendant. Number three: “Q. Did you designate any time that the bananas were to have been delivered? A. Yes. Q. What time did you designate and to whom did you designate the time of delivery? A. Why, I generally come down around seven o’clock in the morning. That is the time.” This was not harmful to the defendant. The bill of lading (Exhibit P-4) provides, section 1: “(a) The carrier or party in possession of any of the property herein described shall be liable as at common law for any loss thereof or damage thereto except as hereinafter provided” * * *. “Section.2: (a) No carrier is bound to transport said property, &c., otherwise than with reasonable dispatch.” So (Exhibit P-5) section 2 (a).

The findings of fact by the trial court are not reviewable if there is any testimony to support them. Lapat v. Erie Railroad Co., 71 N. J. L. 377; Upton v. Slater, 83 Id. 373.

We find no substantial reason for reversing the judgment of the Distrcit Court of the Second Judicial District of Essex county. The judgment is therefore affirmed, with costs.


text:
    CHARLES H. SHINN, APPELLANT, v. MICHAEL CHIACCIO, RESPONDENT.
    Submitted October 11, 1929
    Decided January 2, 1930.
    Before Justices Parker, Black and Bodine.
    Eor the appellant, Robert Peacock.

    For the respondent, French, Richards & Bradley.

   Per Curiam.

This is an appeal from a judgment of nonsuit. There was evidence from which the jury might have found that on a dark and very foggy night the defendant’s truck was parked or at a standstill on the right side of the road under control of defendant or his servant, and without any light of any kind on the rear or front or elsewhere; that plaintiff; proceeding along said road in his automobile at not over twelve miles an hour and keeping a careful lookout, came up behind the truck and suddenly ran the nose of his car under the tailboard of the truck, until then invisible to him, and thereby plaintiffs car sustained serious damage. Plaintiff testified that the fog was so thick that he could not see ahead more than three or four feet, and that at the speed of twelve miles an hour he would run about ten feet before stopping. The nonsuit seems to have predicated on these last two facts as justifying the court in finding that there was contributory negligence, without leaving that issue to the jury.

We think the nonsuit was error. The plaintiff was not bound, as a court question, to regulate the movement of his car with reference to' the possibility of an unlighted motor ahead of him. Section 7, paragraph 3 of the Motor Vehicle act, chapter 208 of Pamph. L. 1921, requires every automobile at night to “exhibit a red light visible from the rear; the rays of such rear lamp shall shine upon the number plate carried on the rear of such vehicle in such manner as to render the numerals thereof visible for at least fifty feet in the direction from which the motor vehicle is proceeding,” as was said in Seibert v. Goldstein Co., 99 N. J. L. 200, 203, “if this warning light prescribed by the act had been carried, it may fairly be presumed that the plaintiff, proceeding cautiously and maintaining a continuous vigil, would have observed it in time sufficient to have brought his [car] to a halt, and thus have obviated the collision.” In other words, plaintiff was normally entitled to assume that a car ahead of him would show the statutory lights and to drive on that assumption coupled with the diminished visibility of such lights due to fog conditions; but was not required, at least as a court question, to proceed as though an unlighted car at a standstill was to be expected.

The Seibert case is even stronger for the plaintiff on the facts, because in that case there was a “pseudo white light hanging from the axle;” in the present case, if the jury believed the plaintiff, who up to the nonsuit was uncontradicted, there was none at all.

The judgment will be reversed to the end that a venire de novo issue.


author: Ingebsoll, Y. C.

text:
    Dorothy A. Davis, trustee, complainant, v. Fox Manor, Incorporated, et al., defendants.
    [Decided January 14th, 1930.]

      Messrs. Bourgeois •& Coulomb, for the complainant.
   Ingebsoll, Y. C.

Order of reference was duly made in the above-stated cause, and notice duly given by complainant to the solicitor of defendant, Leon Rubens, of an application to the court, to be made on the 17th day of December, 1929, for an order designating the day of final hearing; upon the return of said notice, the court fixed Tuesday, the 7th day of January, 1930, as the.date of said hearing; and upon said 7th day of J'anuarjp 1930, the cause came on to be heard in the presence of Bourgeois & Coulomb, of counsel with complainant, no person appearing for defendant Leon Rubens; an inspection of the notice served upon the said defendant’s solicitor showed that it stated the date of hearing as Monday, the 7th day of January, 1930, instead of Tuesday, the 7th day of January, 1930. Affidavit was filed in the cause showing that the solicitor of said defendant Leon Rubens was present in court at the time of making the application and of the fixing of the day for said hearing, and being of the opinion that the day of the week was surplusage, and that the day of the month, where there was a variance between the two, was controlling, as was held in the case of Ingersoll v. Kirby (Walk. Ch. 27), wherein the court said:

“Where the day of the week does not correspond to the day of the month, the day of the month will control.”

Which said case was cited with approval in the case of State Savings Bank of Detroit v. George S. Hosmer, 95 Mich. 100. Complainant was permitted to proceed with the cause.


text:
    STATION REALTY COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, RESPONDENT, v. ENGLEWOOD LAUNDRY, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, APPELLANT.
    Submitted October 11, 1929
    Decided January 2, 1930.
    Before Justices Parker, Black and Boding.
    Por the appellant, Seufert & Elmore.

      For the appellee, Greenberg & Greenberg.

   Per Curiam.

The claim was for expenses incurred and paid in removing a certain boiler and connecting pipes from a building belonging to the plaintiff and which had been rented to the defendant and the lease surrendered. The case is briefed for appellant as though the question is, whether the boiler and pipes are fixtures and part of the real estate, but under the terms of the contract between the parties, this seems immaterial.

The story of the case is as follows: The plaintiff owned and had run a laundry in the building and had installed the boiler and pipes as part of the laundry plan. Then it rented the building equipped as a laundry to the defendant and sold to defendant the machinery, boiler and fixtures, giving a bill of sale for the same and taking a chattel mortgage thereon.

Later the defendant desired to surrender the lease and leave the premises available for a new lease to a corporation called the Bergen Ledger Publishing Company, which was not a laundry company but a printing office. Accordingly, the plaintiff and the defendant entered into an agreement of “escrow,” the delivery of the documents mentioned therein being contingent on the publishing company taking the lease and moving in. The papers held in escrow were, defendant’s check for $550 and a release of the lease and of all obligations thereunder from the plaintiff to the defendant. Apparently the condition was fulfilled and the papers were delivered. Now, this agreement provides as follows: “It being further understood that when said Englewood Laundry, Incorporated, does move from the said premises the removal of all the fixtures, machinery and fittings appurtenant to their business shall be under the supervision of the Station Realty Company and shall be removed at the cost of the Englewood Laundry, Incorporated.”

The defendant did remove all the fixtures except the boiler and pipes and explained that they were attached so firmly to the building that in order to remove them it would have been necessary to tear a large hole in the wall and do a lot of damage. However, the plaintiff, deeming that the defendant was under obligation to do this very thing and finding it had not been done, removed the boiler and' pipes itself without any prior notice or demand, and then sued the defendant for the cost, and recovered judgment therefor.

No point is made of the want of notice or of demand. The sole argument for the appellant is that the boiler and pipes are “fixtures” and could not be removed without substantial damage to the real estate. But that fact does not seem to exonerate the defendant. The contract calls for the removal of all the fixtures, machinery and fittings appurtenant to their business. The appellant says that the boiler is a fixture. No doubt it is, and that is just what the contract said was to be removed. The paper is drawn as a legal document and its language seems to be entirely clear.

This is the only point made on this appeal. The judgment will be affirmed.


author: Pee Curiaii.

text:
    GANDOLFO SELLARO AND ANTONIO ALLEGRO, LATE PARTNERS, ETC., RESPONDENTS, v. PINKUS STARER, APPELLANT.
    Submitted October 11, 1929
    Decided January 2, 1930.
    Before Justices Parker, Black and Bobine.
    For the appellant, Gaetano M. Belfaiio.

    For the appellees, Paul 0. Gourneman.

   Pee Curiaii.

The suit is by two former partners who had been tenants of the defendant to get back the sum of $500 that was deposited at the beginning of their tenancy as security for the payment of rent. The admitted facts of the case show that on a certain date the lease of the two partners expired, and for some reason or other they did not demand their money back. They dissolved partnership and thereupon the defendant, as landlord, made a new lease to one of the partners (Allegro) alone. ¿Allegro kept the property and continued to pay rent for the same for some little time, but being suspected of manufacturing intoxicating liquor, the federal authorities secured an injunction and probably padlocked the place; in any event, the result was that the landlord lost several months’ rent for the property. The attempt of the landlord in this case was to deprive the partnership of the deposit by setting np a counter-claim against Allegro because of his alleged misbehavior in the premises. The trial judge said that there was nothing in this defense and we agree with him. The money- belongs to the former partners; not to Allegro alone, and without considering what steps the defendant might take to fasten a claim on Allegro’s share of the money,, such claim is not cognizable by way of counter-claim in the present action.

The judgment will be affirmed.


text:
    ROBERT C. MORAN, PLAINTIFF, v. ELIZABETH BOOGHER, DEFENDANT.
    Submitted October 11, 1929
    Decided January 2, 1930.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiff, D. 'Trueman StacWiouse.

    Eor the defendant, James Mercer Davis.

   Per Curiam.

Plaintiff has a verdict for damages growing out of a collision between his automobile and that of defendant at a street crossing in Ocean City. He was driving his car; she was driving hers.

The quantum of damages is not questioned. The questions raised are the usual ones of negligence and contributory negligence; questions peculiarly for the consideration and judgment of a jury in this class of cases, and in which the court should be cautious about interfering after verdict. Plaintiff saw defendant coming from his right and one hundred and fifty feet away. The jury evidently found he was not shown guilty of negligence in undertaking to cross in front of defendant’s car at that distance. He admits he did not look again at defendant’s car, but it is fairly plain that there were other traffic conditions requiring his attention. On the other hand, defendant’s observation seems to have been ill-judged and ineffective; and she struck plaintiff’s car with enough violence to turn it over on its left side.

There was no error in refusing to nonsuit or to direct, and we are clear that the verdict was not against the weight of evidence.

The rule will be discharged.


author: Pee Oueiam.

text:
    LOUIS A. ARTHUR, PLAINTIFF-RESPONDENT, v. MARY CALABRESE ET AL., DEFENDANTS-APPELLANTS.
    Submitted October term, 1929
    Decided January 8, 1930.
    Before Justices Paekeb,, Black and Bodwe.
    Por the plaintiff-respondent, Joseph B. Siadlmauer.

    Por the defendants-appellants, Feder & Rinzler.

   Pee Oueiam.

We think the District Court rightly decided this case. The-judgment should not be reversed, unless some substantial rule has been ignored to the prejudice of the defendant,, which is not,the case. The state of demand shows that the suit was brought on the 9th of Eebruary, 1929, to recover the possession of a Mack truck and a Packard touring car, which were seized under a distress warrant, for the sum of $160, alleged to be due to the defendant Mary Calabrese, from the plaintiff Louis A. Arthur for six months’ rent of the garage occupied by the plaintiff at number 182 Westervelt Place, Lodi, New Jersey. The case was tried by the court without a jury, resulting in a judgment for possession and six cents damages. The defendants at the trial moved for a nonsuit,, which was denied by the trial court, after which the defendant submitted no testimony. She appealed and filed a specification of determination, with which she is dissatisfied in point of law, viz., a motion for a nonsuit was made, on the ground that there was no legal proof of any demand either in writing or oral prior to thé issuing of the writ of replevin. This is the only point involved in the case. The state of the case settled by the court and brought up with the appeal, in the-printed book, shows these facts, viz., the court found there-was due the defendant from the plaintiff for rent the sum of $40 and not $160, as claimed by the defendant. The only evidence in the case, on this point, supports this finding of fact by the trial court. The plaintiff offered or tendered this sum of $40 to the defendant Mary Calabrese, which she refused. Afterwards she caused to be issued the distress warrant on the goods, involved in the replevin suit. At the trial, the plaintiff again tendered the sum of $40 in cash to the-defendant, which she again refused, he then paid $40 into court, alleging that sum to be the true amount due for rent, which the court found to be the correct amount. Under this state of facts, a demand before bringing the replevin suit was unnecessary; it would be but an idle form. Moreover, under the circumstances there was such a conversion by the defendant of the plaintiff’s goods, a further demand was -unnecessary; a tender by the tenant of the amount really due and a refusal; the seizure thereafter by the landlord was an unlawful taking. The trial court so found and with that conclusion we concur.

Cases like Veader v. Veader, 87 N. J. L. 140, are not applicable to the facts of this ease.

The judgment of the District Court of the Second Judicial District of Bergen county is therefore affirmed, with costs.


author: Per Curtam.

text:
    IN THE MATTER OF THE INHERITANCE TAX UPON THE ESTATE OF SAMUEL GRABFELDER, DECEASED.
    Decided January 14, 1930.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the prosecutor, Ilenry Swartz.

    For the state, William A. Stevens, attorney-general.
   Per Curtam.

The present writ brings up for review a decree of the Prerogative Court affirming an assessment of a transfer inheritance tax made by the comptroller of the treasury, pursuant to the provisions of the Transfer Inheritance Tax act of this state. The tax was imposed upon a gift made by Grabfelder, a man seventy-three years old, to his wife in August, 1918, the gift being of certain securities valued at some $280,000. Grabfelder died in April, 1920, less than two years after the making of the gift, and the question involved was whether this gift was made by the donor in contemplation of death. In making an investigation of this-question, a considerable number of witnesses were examined by the representative of the comptroller and, after considering the testimony given by them, he reached the conclusion that this transfer, in fact, was made in contemplation of death, and consequently assessed the statutory tax thereon.. The executors of Grabfelder’s estate, being dissatisfied with this finding of the comptroller, appealed to the Prerogative' Court for a review of his decision, and that court, after a consideration of the testimony taken under the direction of the comptroller, reached the conclusion that under the evidence, the gift in question was made in contemplation of death in the not distant future, and consequently affirmed the imposition of the tax. The certiorari having been sued out to review the action of the Prerogative Court, we are now asked to reverse the decree of that tribunal upon the ground that the testimony does not support the conclusion reached by the comptroller and affirmed by the Ordinary.

Our examination of the testimony, which was sent up on the return of the writ, leads us to the conclusion that, although the question of whether, or not this gift was made in contemplation of death is of doubtful solution, still it is not so plain that the adjudication of the Ordinary was erroneous as to justify us in séting aside the decree now before us for review, and consequently the decree should be affirmed.