text:
    JEAN KREMIN, PLAINTIFF-RESPONDENT, v. JACK BREHN AND JACK’S BEAUTY PARLOR, JOINTLY, SEVERALLY, OR IN THE ALTERNATIVE, DEFENDANTS-APPELLANTS.
    Submitted January 30, 1933
    Decided June 29, 1933.
    Before Bkogan, Chief Justice, and Justices Tbenchaed and Case.
    For the appellants, John F. Driscoll, Jr.

    For the respondent, Abraham Lieberman.

   Per Curiam.

This is the defendants’ appeal from a judgment for $250 ■entered by the trial judge of the District Court of the First Judicial District of the county of Hudson, sitting without a jury, in favor of the plaintiff.

The plaintiff, a young woman twenty-two years of age, sued to recover damages sustained by her as the result of being given a permanent wave in the beauty parlor and hair dressing establishment of the defendants.

In her complaint she charged that the permanent wave was negligently given by the defendants in that the defendants negligently used improper solutions, used improper appliances and did the work in an improper and negligent manner, with the result that her hair was burned and injured and fell out and her scalp was injuriously affected.

The main defense was that the plaintiff assumed the risk in that she insisted that the work be done after being told by the defendant that by reason of her having theretofore bleached her hair, an attempt to give her a permanent wave would be ill-advised and dangerous.

The main questions argued by the defendants are that the trial judge erred in refusing to nonsuit the plaintiff and in refusing to direct a verdict for the defendants. The questions thus raised may conveniently be considered together, since it is well settled that a ruling denying a motion to non-suit, erroneous at the time it is made, may be cured by subsequent proofs. McGee v. Kraft, 110 N. J. L. 532.

The first question to be considered is whether or not when the case was closed, a jury question was presented as to negligence of the defendants and as to assumption of risk by the plaintiff, which question is argued in the brief.

We believe the ease presented a jury question in both aspects.

The plaintiff’s testimony tended to show that the plaintiff visited the beauty parlor of the defendant in response to its advertisement; that she told the defendant Jack Brehn (who was the owner and proprietor of the beauty parlor and who personally did the work) that her hair had been bleached by the use of peroxide and that she wished to have a permanent wave; that defendant stated to her that since her hair had been bleached it was necessary to use a special solution and that the cost of the permanent wave would be $4; that the plaintiff acquiesced and the work was done with the result that her hair was burned off close to her scalp and her scalp rendered sore; that some of her hair fell off while she was in the beauty parlor, as the defendant said because of too much heat, and almost all of the remainder came off after she had returned to her home; that soon thereafter she revisited the beauty parlor and complained to the defendant, who returned her $4 after having acknowledged that the treatment was wrong; that as a result of her injury she lost time from her employment as a secretary, and was embarrassed and humiliated.

The defendants’ testimony, corroborated by two of the assistants, was to the effect that the defendant Jack Brehn advised the plaintiff against the permanent wave in the circumstances, after having ascertained that the plaintiff had been bleaching her hair, but that the plaintiff insisted upon the permanent wave nevertheless and agreed to take the chances, and that thereafter the defendants did the work carefully and skillfully; and as a further defense that, as a matter of fact, the plaintiff had been bleaching her hair with household ammonia, not with peroxide.

But this defense testimony was denied by the plaintiff, who specifically denied that she had used ammonia on her hair or had told the defendants that she had used ammonia on her hair, and she also specifically denied that defendant told her that what he proposed to do and did was ill-advised or dangerous, or not in accordance with proper practice and usage; and she aiso denied that she had said that she would take the chances.

It seems to us, therefore, that the question of negligence of the defendants and alleged assumptions of risk by the plaintiff were jury questions which it was proper for the judge, sitting without a jury, to decide.

The defendants insist that there was no sufficient evidence of negligent treatment which was the proximate cause of plaintiff’s misfortune.

We believe that there was. The evidence was that the heating irons were applied to the plaintiffs head improperly, with the immediate result of the burning of the hair to the extent that it dropped off; and the evidence given by one of the operators in the defendants5 beauty parlor, of eight years5 experience, was to the effect that it was not only unwise but generally unsuccessful practice to undertake a permanent wave of the kind given, in a case where the hair had been bleached. Under familiar principles we do not undertake on appeal to consider the weight of the evidence.

The only other question argued related to the alleged admission of evidence relating to defendants5 advertisement. A sufficient answer is that the question put was not answered, the alleged error is not properly raised as a ground of appeal, and if it had been answered, and had been properly assigned, the result would not have been harmful to the defendants in view of other evidence.

The judgment will be affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    FRANK DESIDERIO SONS, INCORPORATED, PROSECUTOR, v. ERNEST W. BLUNT ET AL., RESPONDENTS.
    Submitted January 27, 1933
    Decided June 29, 1933.
    Before Justices Parker, Lloyd and Heher.
    Eor the prosecutor, Frank O. Turner.

    Eor the respondents, Fmil Neblo.

   Per Curiam.

This is a certiorari to a judgment of the Essex Common Pleas dismissing an appeal in a workmen’s compensation ease. The ground of dismissal was that the Court of Common Pleas had no jurisdiction to entertain the appeal; and on examining the case and briefs of counsel, we concur in that view. The difficulty arises out of two facts: Eirst, that the accident occurred in New York; and secondly, that a statute in force at the time of the finding by the commissioner and relating to review of his findings, covered only accidents that occurred somewhere in New Jersey.

It was settled quite early in the history of our Workmen’s Compensation act, that where the contract of employment was made in this state, compensation for accidents occurring out of and in the course of that employment would be awarded here, although the accidents themselves took place without this state. Rounsaville v. Central Railroad Co., 87 N. J. L. 371; 94 Atl. Rep. 392, reversed, but on another ground, in 90 N. J. L. 176. In the case of Foley v. Home Rubber Co., 89 Id. 474; 99 Atl. Rep. 624, the accident occurred on the high seas, and right to compensation under our statute was apparently taken for granted so far as concerned that phase of the case. That case was affirmed in the Court of Errors and Appeals in 91 N. J. L. 323.

Under the original statute (Pamph. L. 1911 p. 141, § 18) the claim could be tried out before the judge of the Court of Common Pleas “of such county as would have jurisdiction in a civil case.” This seemed to place the question of jurisdiction within the rules applicable to the laying of venue in an ordinary civil action. Later, by chapter 149 of the laws of 1918 (Pamph. L., p. 429) the original jurisdiction was transferred to the workmen’s compensation bureau; and by section 19 of that act an appeal could be taken “to the Court of Common Pleas of the county in which hearing was held.” That section was amended in 1919 and again in 1921 but without any change in this language. In 1931, however (Pamph. L., p. 1217), section 19, which was rather lengthy, was amended to read thus: “19. Any judgment of the workmen’s compensation burean shall be reviewable by certiorari only.” That act was approved June 30th, 1931, to take effect immediately, and remained in force until March 21st, 1932, on which date a further amendment of section 19 was approved, being chapter 25 of the laws of 1932. Pamph. L., p. 38. This amendment restored the appeal to the Common Pleas, but instead of designating the county where the hearing had been held, the language is as follows: “Either party may appeal * * * to the Court of Common Pleas of the county in which such accident occurred by filing with the secretary of said bureau and with the clerk of the county where such accident occurred, a notice of appeal * * *. Section 2 provides that all acts or parts of acts inconsistent therewith are hereby repealed, and that said act shall take effect immediately.

This language seems to be perfectly plain; and we find ourselves unable to escape from the conclusion that its only legitimate effect is to countenance an appeal in cases wherein the accident occurred in some county of this state, and not in other cases. By the act of 1931, the appeal was wiped out altogether and a direct jurisdiction in certiorari substituted. Then by the act of 1932, certiorari as a primary remedy was in turn abrogated so far as the legislature had power so to do, and appeal provided in cases where the accident had occurred in some county of this state. No other appeal was provided, and consequently in the present case involving an accident which occurred outside of this state no right of appeal existed at the time of the decision by the commissioner or thereafter.

The foregoing considerations require an affirmance of the judgment of the Common Pleas. Such will be the order.


author: Backes, V. C.

text:
    Joseph Smith, complainant, v. Roco Realty Company, a corporation of New Jersey, defendant.
    [Decided June 24th, 1933.]

      Mr. Abraham M. Herman, for the complainant.

      Mr. Andrew J. Whinery, for the defendant.
   Backes, V. C.

The defendant owns the property at the northeast corner of Main street and Arlington avenue, East Orange. The complainant’s property adjoins on the east, on Main street. The building on the complainant’s property is approximately forty-seven feet high; that on the defendant’s was some twenty-five or thirty feet higher. A twenty-inch-wide party wall, about forty-seven feet high, supported both buildings; twelve inches of the party wall sets on the defendant’s land and the balance on the complainant’s. The roof of complainant’s building rests atop the party wall; the extension of the wall twenty-five or thirty feet higher enclosed the defendant’s building on the east. This extension was twelve inches wide and was entirely on the defendant’s side of the party line of the land. The defendant started to tear down its building, including the twelve-inch extension wall when this bill was filed and restraining order issued. Upon the return, the restraint was modified allowing the removal of the extension;, not including., however, sufficient for complainant’s chimney in the party wall and for the enclosure of a pent house on his roof. The defendant put up a one-story building. The complainant now wants the extension restored or failing in that, compensation. To restore would obviously create a menace to life, as would have been the case had the wall remained sticking in the air. The complainant’s and the defendant’s buildings were erected about the time the party wall was agreed upon by a recorded instrument made by their predecessor’s in title, February 17th, 1887. It reads:

“Whereas The Orange Water Company is the owner in fee of certain tract of land situate, lying and being in the Township of East Orange, in the County of Essex and State of New Jersey, bounded on the South by Main Street, on the West by Arlington Avenue, on the North by the Delaware & Lackawanna and Western Railroad and on the East by land of George D. Woodruff and Whereas the said The Orange Water Company has recently erected upon the Easterly line of their said tract and the Westerly line of George D. Wood-ruff, a party wall twenty inches thick about fifty feet in depth and about forty-seven feet in height, twelve inches thereof being upon the land of The Orange Water Company and eight inches being upon the land of George D. Woodruff with a chimney therein constructed for the joint use of the parties hereto and Whereas the said George D. Woodruff has paid to the said The Orange Water Company his due share and proportion of the costs of constructing said party wall and chimney.
Now Therefore, The Orange Water Company, for themselves, their successors and assigns, do hereby agree to and with said George D. Woodruff, his heirs, executors, administrators and assigns, and the said parties do mutually covenant in consideration of the premises and of one dollar to each in hand paid that the said party wall to the height as now built shall be and remain a party wall so long as the same shall stand and that the said George D. Woodruff, his heirs, executors, administrators and assigns, shall have the right to use the two chimney flues in said chimney now connected with his building so long as said party wall shall stand without interruption or molestation from the parties of the first part, their successors and assigns.
It is further understood and agreed that the land whereon said party wall now stands shall be subject to the right of each of the parties to have said wall, be and remain thereon, until it be removed by mutual consent of the parties hereto and their respective successors and assigns and heirs, executors, administrators and assigns, and that thereafter the land whereon said wall stands, shall be as heretofore the property of the respective owners free of all easements and claims whatsoever.”

Whether the extended height of defendant’s building was part of the original structure or came afterwards, does not appear, but there is significance in its erection wholly on the defendant’s side of the party wall, as there is in the complainant’s roof, resting on the forty-seven-foot high party wall, and these two circumstances are persuasive of the interpretation of the party wall agreement by the parties to it by their conforming to its provisions agreeable to their understanding, i. e., that the party wall was to extend to the complainant’s roof, and above that there were no community rights. The twelve-inch-wide extension above, resting on the defendant’s side of the party wall and within the defendant’s boundary line lends emphasis to that interpretation, which we adopt. The defendant would have been entirely within its rights had it torn away the twelve-inch wall above the party wall, protecting, however, the complainant’s chimney rights. It does not appear that it ever threatened to do more and it hasn’t gone that far.

The bill will be dismissed.


text:
    SOLOMON HIRSCH AND ALEXANDER FROMM, TRADING AS MORRISTOWN LIGHTING SUPPLY COMPANY, PLAINTIFFS, v. LYLE M. DePUY, DEFENDANT.
    Argued January 18, 1933
    Decided June 17, 1933.
    Before Justices Trenchard, Case and Brogan.
    Bor the plaintiffs, Irving Youngelson.

    Bor the defendant, Frank Kemble.

   Per Curiam.

The matter is before us on motion attempted to be made on behalf of the defendant to set aside the summons and the service thereof and incidentally to set aside the judgment entered by default in the cause as well as the execution or executions and any steps taken thereunder. The summons in the cause was served, with complaint, upon the defendant May 9th, 1931, and judgment by default was entered on June 4th, 1931, for $348.56 damages and costs. On June 5th, 1931, the original execution was issued and returned unsatisfied, and on December 28th, 1932, an alias execution was issued and a levy made thereunder. Thereafter, on January 7th, 1933, the defendant obtained a rule to show cause why the judgment should not be opened. That rule was heard by Mr. Justice Parker and was dismissed by him on the ground of laches in the making of the application. The record placed in our hands is singularly crude and informal, but it discloses that the summons was not dated, that it carried no seal, and that although the name and title of the clerk were typed in the space usually occupied by the signature there was no actual signature. The plaintiff resists upon the ground, amongst others, of laches.

We are not prepared to hold that the absence of a date from a summons is of itself fatal. Section 47 of the Practice act (3 Comp. Stat., p. 4065), provides that “every process shall bear date on the day on which the same shall be issued * * but that provision seems to be directory. Morris Canal and Banking Co. v. Mitchell, 31 N. J. L. 99, 103. It remains true, however, that the omission is an irregularity. Nor do we consider that the absence of a seal is fatal, though this, too, is an obvious irregularity and a departure from immemorial usage. It has been held that the signature of the clerk to a writ may be appended by the attorney (Seaman v. Perth Amboy, 98 N. J. L. 174; 119 Atl. Rep. 278), but of course that is not to say that a writ of summons should not be signed either by or in the name of the clerk. The omission is a further irregularity. It seems that there must be a point at which the accumulation of irregularities in a paper that assumes to be a writ deprives that instrument of authenticity; this not so much, perhaps, to preserve the dignity of the court and the regularity of practice as to establish the official character of a writ to the extent that a person served therewith may know with certainty that it is a court process. But we are persuaded that the defendant was at no time in doubt as to the significance or the authority of the summons or of the complaint, both of which were lawfully served upon him. The testimony taken on the rule leads us to the further conclusion that he had pactically contemporaneous knowledge of the entry of udgment and of the issue of the original execution and of the attempted levy thereon. However voidable or subject to amendment the summons may have been (Practice act, 3 Comp. Stat., p. 4066, § 48), it was not, we think, void; and the defendant by his laches forfeited his day in court thereon.

Having thus given our views on the merits, we announce a further and of itself sufficient reason for the dismissal of the motion in that, contrary to Supreme Court rule 161, the prosecutor’s attorney, not a counselor-at-law, undertook to appear and argue the matter at the bar of this court and the brief submitted was not signed by a counselor-at-law.

The motion is dismissed, with costs to the respondents.


text:
    GARDEN STATE LINES, A CORPORATION, PROSECUTOR, v. TOWN OF NUTLEY ET AL., DEFENDANTS.
    Submitted January 27, 1933
    Decided June 29, 1933.
    Before Justices Parker, Lloyd and Heher.
    Por the prosecutor, Leonard J. Emmerglich.

    Por the defendants, no appearance.
   Per Curiam.

This writ brings up the conviction of the prosecutor in the Recorder’s Court of Nutley for the violation of an ordinance of that town. The ordinance requires, among other things, that all operators of auto buses within the town shall register with the town clerk the name of each and every driver employed by such operator before permitting such driver to operate a bus. The complaint was for violation of this provision.

The ordinance provides a penalty of a fine of $25 for the first violation and $50 for each subsequent violation. The prosecutor was convicted and a fine of $25 was imposed.

Several points are made for the prosecutor, but the first is sufficient for a disposition of the case. It is pointed out, and correctly as we think, that the Home Rule act of 1917 by section 7 of article X (Pamph. L. 1917, p. 347) provides a maximum penalty either of a fine or imprisonment and confers power on the magistrate before whom a violator is convicted of imposing a fine or term of imprisonment, not exceeding the maximum, obviously in his discretion. The ordinance, however, gives no such latitude and undertakes to require a definite and unchangeable penalty for both the first and second offenses. This is beyond the power of the municipality and renders the conviction unlawful. Massigner v. Millville, 63 N. J. L. 123; 43 Atl. Rep. 443. Dor this reason the conviction will be set aside, with costs.

It is unnecessary to consider any of the other points raised.


author: Pee Cubiam.

text:
    EDWARD BURD, PLAINTIFF-RESPONDENT, v. EDWIN D. TILTON, DEFENDANT-APPELLANT.
    Submitted January 30, 1933
    Decided June 29, 1933.
    Before Bbogan, Chief Justice, and Justices Teenchakd and Case.
    Dor the appellant, Gray <& Reid (Charles Stockdell Gray and Lang don E. Morris, of counsel).
    Dor the respondent, Giuliano & Giuliano (Anthony Giuliano, of counsel).
   Pee Cubiam.

This is an appeal from a judgment in favor of the plaintiff rendered by the trial judge sitting without a jury in the District Court of the Second Judicial District of the county of Monmouth.

The situation was this: The defendant was the owner of a motor truck which was involved in an accident with the automobile of the plaintiff on October 21st, 1929. The plaintiff’s automobile was damaged and he suffered personal injuries for which this suit was brought, one count claiming for damage to the automobile and the other for personal injuries.

A summons was issued on October 16th, 1931, returnable October 28th, 1931. This summons was returned October 20th, 1931, “Not Served.” Another summons was issued on November 2d, 1931, returnable on November 13th, 1931, and was duly served upon the defendant together with a copy of the state of demand.

The case came on for trial on June 6th, 1932. At the opening of the case a motion was made to strike the second count (for personal injuries) on the ground that the teste date of the summons (November 2d,. 1931) and the date of the accident alleged in the state of demand (October 21st, 1929) showed that the action for personal injuries had been commenced more than two years after the cause of action had accrued and was barred by the statute of limitations. This motion was denied by the trial judge and the plaintiff’s case was heard, at the conclusion of which a voluntary nonsuit was granted as to the first count for property damage. A motion was then made on behalf of the defendant for a non-suit as to the second count on the ground that the plaintiff’s testimony showed that the accident happened on October 21st, 1929, and the summons being tested November 2d, 1931, the action for personal injuries had been brought more than two years after the cause of action accrued, and was barred by the statute of limitations. This motion was likewise denied. Testimony was then taken on behalf of the defendant and both sides having rested, a motion was made on behalf of the defendant for judgment on the second count (it then being the only count before the court) on the ground that the plaintiff’s cause of action was barred by the statute of limitations. That motion was denied and judgment for the plaintiff was rendered by the trial judge.

The appellant argues that the suit for personal injuries was commenced by summons dated November 2d, 1931, and so was barred by the statute of limitations, and that is the only question argued.

We think that the situation presents no cause for reversal. A suit is actually commenced as soon as the writ is sealed and issued out of the office in good faith, for the purpose of being served or proceeded on, and that purpose is not after-wards abandoned. Whitaker v. Turnbull, 18 N. J. L. 172.

Here the purpose of commencing the suit was not abandoned. The original summons was issued October 16th, 1931, and the fact that it was not served because the defendant could not be found, as was said in Bittles v. West Ridgelawn Cemetery, 108 N. J. Eq. 357; 155 Alt. Rep. 130, “did noit impair its vitality to commence the suit nor diminish its efficiency to stay the running of the statute,” and the second summons tested November 2d, 1931, “will be treated as tacked to the first writ and its return day as substituted for the original return day, in analogy to the course approved in County v. Pacific Coast Borax Co., 67 N. J. L. 48; affirmed, 68 Id. 273; 50 Atl. Rep. 906.”

The judgment will be affirmed, with costs.


text:
    THE MORRIS PLAN COMPANY OF NEW YORK, A NEW YORK CORPORATION, PLAINTIFF-APPELLANT, v. DAVID ROSENZWEIG, DEFENDANT-RESPONDENT.
    Submitted January 30, 1933
    Decided June 30, 1933.

      Before Bkogan, Chief Justice, and Justices Trenchakd and Case.
    For the appellant, Louis Ogust (I. Harold Meyerson, of counsel).
    For the respondent, David T. Wilentz.

   Per Curiam.

This is the appeal of the plaintiff below from a judgment entered by the judge of the Yew Brunswick District Court, sitting without a jury, in favor of the defendant.

The situation is this: The plaintiff is a Yew York banking corporation, with its office in the city of Yew York. It is agreed that “the action was to recover the balance due on a promissory note, made by one Ira A. Wise, and several other co-malcerSj of whom the defendant is one." It is admitted that the note, on its face, is dated New York, N. Y., November 15th, 1929, and by its terms it is payable at the office of the plaintiff, in the city of Yew York, and was delivered to the plaintiff at its office in the city of Yew York. It is agreed that the defendant, David Eosenzweig, one of the co-makers, signed the note in Perth Amboy, Yew Jersey, at the request of another co-maker and with the knowledge of the plaintiff.

There is no dispute with respect to the amount due and unpaid on the note, to wit, $70 plus interest from Yovember 15th, 1930, plus a delinquency charge of $1. Plaintiff produced proof through a Yew York attorney that the demand for delinquency charge is proper under section 293, subdivision 5 of the Banking law of the State of Yew York. The defendant is the only party to the note who is a resident of the State of Yew Jersey.

The plaintiff-appellant contends that as a matter of law the court below erred in rendering a judgment in favor of the defendant.

The only question involved is, was the note sued on a Yew York transaction, and, therefore, governed by the law of that state, or does it come under the prohibition of chapter 49 of the laws of 1914 (page 75), because the defendant, one of the co-makers, signed it in New Jersey?

Plaintiff contends that the transaction arose under and by virtue of the laws of the State of New York, and that it is, therefore, unnecessary for the appellant to come within the provisions of the statute of 1914.

We think the note sued on is a New York transaction, having arisen under and by virtue of the laws of the State of New York. It is dated New York, N. Y., was delivered to the plaintiff, a banking corporation of the State of New York, at its New York office, and by its terms is to be paid to the plaintiff at its office in the city of New York.

In the case of Commercial Credit Corp. v. Boyko, 103 N. J. L. 620; 137 Atl. Rep. 534, the Court of Errors and Appeals said:

“The law is firmly settled in this state that when a note is made payable at a particular place, it is to be treated in all respects as if made there, without regard to the place where it is dated or delivered. Ball et al. v. Consolidated, Franklinite Co., 32 N. J. L. 102.”

The present case is even stronger than that, since the note was not only payable in New York, but was also dated New York, N. Y., and delivered to the plaintiff at its office in New York.

But the defendant contends that the provisions of the so-called “Small Loan act” of the State of New Jersey (chapter 49 of the laws of 1914) applies. The defendant cites and quotes the provision, section 1 of the act reading as follows:

“When an application for a loan, or for an endorsement or guarantee, or for the purchase of a note, is made by any person within this state, and the money is advanced, or the endorsement or guarantee is made or furnished, or the note purchased by any person situated without this state, the transaction shall be deemed a loan made within this state, and such loan, and the parties making it, shall be subject to the provisions of this act.”

(It is to be noted that this language was eliminated from the act by chapter 62 of the law of 1932 but by reason of a reservation of prior contracts the act of 1914 requires-consideration.)

The defendant’s contention that the act of 1914 applies is-based solely on the erroneous assumption that “the defendant’s signature is in the nature of an endorsement.” He was plainly not an endorser. He was obviously a co-maker, and as a matter of fact the defendant so stipulated. Therefore that contention of the defendant fails.

It is argued that the plaintiff could not bring this action without complying with section 98 of the Corporation act, to wit, secure a certificate to do business prior to bringing this action. In view of the fact that this is a New York transaction, it is unnecessary for the plaintiff to comply with section 98 of the Corporation act, and this is sustained by the ease of Commercial Credit Corp. v. Boyko, supra, which holds as follows:

“Foreign corporations, without complying with the. provisions of section 98 of the Corporation act, may maintain suits in this state on contracts made without the state.”

Since the facts are stipulated the judgment will be reversed, with costs, and the record remitted to the end that a judgment may be entered in favor of the plaintiff.


author: Jayne, C. C. J.

text:
    EASTERN ENGINEERING COMPANY, A CORPORATION, PLAINTIFF, v. CITY OF OCEAN CITY, A MUNICIPAL CORPORATION, DEFENDANT.
    Decided July 3, 1933.

      For the plaintiff, Vincent 8. Haneman.

    For the defendant, Andrew C. Boswell and William H. Campbell, Jr.

   Jayne, C. C. J.

It appears that matters of account were involved in the above entitled action, and thus a rule was entered designating Joseph Thompson, Esquire, as a referee to determine the matters in controversy between the parties.

It is recited in the rule by which the reference is made that “the parties hereto agree to submit the matters and differences between them to the award and final determination of Joseph Thompson, Esquire, as it appears by consent hereto endorsed.” Moreover, the rule to which the parties consented provides that “said award and final determination shall have the same effect accorded to a findng of arbitrators.”

Having taken considerable testimony as disclosed by a transcript of over nine hundred pages, the referee filed a report expressing his conclusions upon the controversial questions, resulting in his final determination that the defendant on April 18th, 1933, was indebted to the plaintiff in the sum of $16,769.72.

Application is now made in behalf of the plaintiff for the confirmation of the report of the referee to the end that judgment may be entered thereon in this action. 1 Comp. Siai., p. 103. It is important to observe that no reservation of a right to trial by jury was entered in the minutes by either party at the time of the reference.

In resisting the application for the confirmation of the Teferee’s report, counsel for the defendant, with a frank expression of uncertainty as to the proper practice, has filed certain reasons in writing which are entitled “defendant’s objections to confirmation of referee’s report,” and these reasons are also repeated in the form of exceptions to the report. In the brief, counsel for defendant asks that a new trial be granted or that the report be so modified as to meet the defendant’s objections.

The filing of exceptions to the report of the referee is not the proper practice. A motion to set aside the report is the recognized, practice and procedure to be pursued by the dissatisfied party. Runyon v. Hodges, 46 N. J. L. 359; The Children's Home Association v. Hall, 47 Id. 152; Grantwood Lumber Co. v. Aragona, 109 Id. 447; 162 Atl. Rep. 883. A motion to set aside the report with the assignment of reasons is the proper procedure, whether the finding of the referee is to be regarded as a verdict or as an award of arbitrators. Before the promulgation of the Supreme Court rule, it seems that the report of referees possessed all the significance and characteristics of an award of arbitrators. The present Supreme Court rule 99 is as follows:

“All rules of reference entered by consent of parties in this court, or in the Circuit, may state whether the award of the referee is to have the effect of a finding of arbitrators, or merely the force of a verdict, and in the absence of such statement, the award shall be treated as a verdict.”

This rule was adopted at the June term, 1873, giving definite form to the doctrine of Fitch v. Archibald, 29 N. J. L. 160, and Excelsior Carpet Lining Co. ads. Potts, 36 Id. 301.

Disregarding any irregularity of procedure in the instant case and recognizing the contention now made in behalf of the defendant as a motion to set aside the report of the referee, it becomes necessary to attach proper significance to the obvious intention of the parties to this action as disclosed by the language of the rule for the reference. This rule recites that the parties agree to submit the matters and differences between them to the award and final determination of the referee and that his final determination shall have the effect of an award of arbitrators. The reference in this case was obviously a voluntary commission of the matters in controversy to a referee selected by the parties, with the express understanding that the report of the referee would be as conclusive as an award of arbitrators. It has been frequently stated that arbitration proceedings as a method of determining private controversies are favored by the courts and that accordingly the courts will make all fair presumptions in order to sustain the award. The settlement of controversies by arbitration is an ancient practice at common law. In its broad sense, it is a substitution, by consent of the parties, of another tribunal for the tribunal provided by the ordinary processes of law. The object of arbitration is the final disposition, in a speedy, inexpensive, expeditious and perhaps less formal manner, of the controversial differences between the parties. Thus, every reasonable intendment will be indulged in favor of the regularity and integrity of the acts of the arbitrator with the assumption that the award is the honest decision of the arbitrator. 2 R. C. L. 389; 5 C. J. 16 et seq. The opinion of Mr. Justice Whitehead, in Stolls, Administrator, v. Price, 21 N. J. L. 32, reviewed by the Court of Errors and Appeals in Bell v. Price, 22 Id. 578, sheds illumination upon, the characteristics of an award of arbitrators and the reasons deemed sufficient to set aside such an award. The subject is again discussed in Taylor v. Sayre & Peterson, 24 Id. 647. The following pertinent excerpts may be taken from the opinion of Vice-Chancellor Van Fleet in Leslie v. Leslie, 50 N. J. Eq. 103; 24 Atl. Rep. 319, which was a suit to annul an award:

“The submission is the commission of the arbitrator. By force of it, he becomes a judge with absolute power over the things submitted to his judgment. So long as he acts uprightly and impartially, and keeps within the limits of his authority, and deprives neither party of a full and fair hearing, his judgments are unimpeachable and irreversible. He may do what no other judge has a right to do; he may intentionally decide contrary to law and still have his judgment stand. This was so declared in Bell v. Price, 2 Zab. 578, 590, where Mr. Justice Carpenter, in pronouncing the judgment of the Court of Errors and Appeals, said, in substance, that if arbitrators mean to decide according to law but mistake the law in a material respect, and their mistake appears on the face of the award, or they admit it, the award will be set aside because it does not express their real judgment; but in cases where they do not intend to let the law govern their judgment, but to decide according to their own notions of what is just and right, the courts will not interfere, but allow their award to stand.”

“It is manifest that if the decisions of such a tribunal were subject to be tried by the strict rules of the law, an arbitration, instead of being an inexpensive mode of finally settling disputes would, in a majority of instances, be but the prelude to an expensive and protracted litigation. To avoid such consequences, it has become a settled principle of jurisprudence that awards are to be expounded favorably and every reasonable intendment made in their support.”

In Bell v. Price, supra, the court observed:

“In regard to mistakes in law courts will not interfere, unless it appears that the arbitrators meant to decide according to the legal rule, and had mistaken it; and it must so appear on the face of the award or by the statement of the arbitrators. If arbitrators mean to decide according to law, but mistake the rule in some palpable and material point, in such case the .award will be set aside, as not conformable to their real judgment and intention. But, unless they intend to be bound by the legal rule, courts will not withdraw the matter from the tribunal which the parties themselves have selected. The courts will not undertake to inquire whether the conclusion was right or not, unless they can see that, professing to decide according to law, the arbitrators had decided contrary to law.”

So as to mistakes in fact, those which can be taken advantage of in this mode are comprised within very narrow limits, and must appear on the face of the award itself or in some authentic shape. They must be such as the arbitrators would admit, as miscalculation in an account, or the like, and certainly unless they appear on the face of the award, or the accompanying paper, must be made out to their satisfaction.” “In a loose sense, the arbitrators may be said to have fallen into an error or mistake when they have judged wrong upon the evidence before them. But this is not the kind of error or mistake intended, because so far as they have exercised their judgment it is conclusive, though to other minds the result might seem palpably erroneous. The mistake must be of a different character, something which has deceived or misled them, and not a mere mistake in drawing conclusions of fact from observation or evidence.”

Our statute entitled “An act for regulating references and determining controversies by arbitration,” a descendant of the statute of 9 and 10 William 3 passed in 1698, in the statement of specific grounds for setting aside an award, speaks only of an award procured by corruption or other undue means. The phrase “undue means” embraces mistakes and errors of law or fact as explained in Taylor v. Sayre & Peterson, supra.

With this prelude, we come now to the theme of the present objection to the confirmation of the referee’s report. Heedless to say, there is no suggestion of misbehavior on the part of the referee or that his award was procured by corruption. The reasons assigned in behalf of the defendant for setting aside the award all state that the referee undertook to decide the certain issues specifically mentioned according to law, but that he has erred and has mistaken the law. The truth of the statement contained in these reasons is not apparent on the face of the report. It is not apparent from an examination of the report that the referee was mistaken as to the law applicable to the facts and circumstances as he determined them from the testimony. Where an arbitrator admittedly intended to decide according to law and it appears that he has mistaken the law, the court will very properly interpose because in such event the award is admittedly not the award the arbitrator intended to render. Such is said to be the situation in the instant case. It is asserted in behalf of the defendant that the referee erred in applying the unit prices rather than the lump sum in determining the amount due the plaintiff under the contract. It is quite obvious that both in the proposal and in the contract, the lump sum was based upon estimated quantities. In contracts for the construction of sewer systems, it is anticipated that the quantity of material may vary from that originally estimated by the engineer in the preparation of the specifications. This has occasioned the use of a form of contract which includes unit prices for the separate classes of material and labor. The contract with which the referee was concerned was in this form. The city agreed to pay the contractor the unit prices for the materials and labor required to complete the sewer system, and the intermediate payments were to be based upon the amount of work prformed and materials furnished each month according to the unit prices, less ten per cent., including only the completed units of work and materials according to the classification contained in the contract and for which the definite prices had been fixed.

Additionally, it is argued that the referee erred in making an allowance to the plaintiff for extra work in that such extra work was not ordered in writing by the city engineer and approved by the director as required by a provision of the contract. The report of the referee discloses that he concluded from the testimony that the parties in the circumstances, by mutual agreement and consent, abandoned the observance of this provision of the contract.

The defendant complains of the allowance of $500 to the plaintiff to compensate the plaintiff for its loss occasioned by the suspension of the work ordered by the city. The contract provides that the director may suspend the work, and in the event of any such suspension, the contractor shall be reimbursed for damages representing actual loss incurred by such suspension. This was one of the matters in dispute between the parties which, by the reference, the referee was called upon to determine. The defendant is dissatisfied with the disallowance by the referee of the claim of the city for liquidated damages by reason of the delay in the completion of the work. The referee concluded that the city and not the plaintiff was responsible for the delay. On the other hand, the report further discloses that the referee disallowed claims of the plaintiff amounting in the aggregate to $2,280.90.

No justifiable reason for setting aside the report is made to appear, and accordingly a rule for the confirmation of the report will be made.


author: Jayne, S. C. C.

text:
    IRVING TRUST COMPANY AND AUGUSTUS S. PEABODY, TRUSTEES, PLAINTIFFS, v. DANIEL D. CONWAY, DEFENDANT.
    Decided July 6, 1933.
    For the motion, Thompson & Hanstein.

      Contra, Cole & Cole.

   Jayne, S. C. C.

The plaintiffs became the owners by assignment of a certain bond and mortgage executed and delivered on January 27th, 1926, by one Kaymond P. Thompson to The Peerless Plush Manufacturing Company to secure the payment of the sum of $13,500 on January 29th, 1929, with interest. The plaintiffs, as complainants, prosecuted a suit in the Court of Chancery to foreclose this mortgage, resulting in the entry on August 28th, 1931, of a final decree adjudging the plaintiffs, as complainants in that cause, to be entitled to the sum of $12,809.55 with lawful interest from August 25th, 1931, and costs of suit. On August 28th, 1931, a writ of fieri facias issued out of the Court of Chancery, directed to the sheriff of the county of Atlantic, commanding him to make, by a sale of the mortgaged premises, the sum so due the complainants, who are the plaintiffs in this action. The defendant, Daniel D. Conway, was at that time the sheriff of Atlantic county and the mortgaged premises were duly advertised pursuant to the writ, and after some adjournments, the mortgaged premises were exposed for sale by the sheriff on December 3d, 1931, and at this sale, the sheriff struck off the premises to Eaymond P. Thompson, whose bid of $12,000 was the highest proposal made for the premises at the sale. The premises were sold under the usual conditions of sale which required the purchaser to pay the sheriff ten per centum of the purchase money at the time the property was struck off to the purchaser. The purchaser, Raymond P. Thompson, thereupon delivered to the sheriff his own check, drawn on the First National Bank of Pleasantville, New Jersey, in the amount of the down payment of $1,200. The sheriff accepted this check, reported the sale, and the sale was thereafter, on December 16th, 1931, duly confirmed. The purchaser, upon the confirmation of the sale, refused to attend and receive a deed for the mortgaged premises and pay the purchase price in accordance with the terms of the sale. The sheriff thereafter readvertised the mortgaged premises for sale, and on February 25th, 1932, struck off the premises to the plaintiffs for $100, which was the highest bid then obtainable. This latter sale was duly confirmed. The sheriff has not paid to the plaintiffs as complainants in the foreclosure suit, the sum of $1,200, which was the initial payment required of the purchaser, Raymond P. Thompson, at the first sale.

The plaintiffs filed a petition in their foreclosure suit in the Court of Chancery alleging all of the circumstances here related and praying for an order directing Daniel D. Conway, sheriff of Atlantic county, to pay to them the sum of $1,200 with interest. On August 2d, 1932, an order was made in the foreclosure suit directing Conway as sheriff to show cause why the prayer of the petition should not be granted. An answer to the petition was filed in behalf of Sheriff Conway. This proceeding was heard by the late Vice-Chancellor Ingersoll. The memorandum of his conclusions discloses that the learned vice-chancellor was of the opinion that the petition should be dismissed and an action at law instituted to attain the same object. However, on April 25th, 1933, an order was entered in the foreclosure suit directing that the cause inaugurated by the filing of the petition and the filing of an answer thereto be transferred to the New Jersey Supreme Court under the authority of the act relating to the transfer of causes. Pamph. L. 1912, p. 417; Pamph. L. 1915, p. 39.

Recognizing this proceeding as if it had been originally commenced in the Supreme Court, and assuming that the petition and answer, by reason of the transfer of the cause, constitute the pleadings in this court, counsel for the plaintiffs (petitioners) now move to strike out the answer filed in behalf of Sheriff Conway upon the ground that the answer is frivolous. The answer contains four paragraphs. In the first paragraph, all of the averments of the petition are admitted to be true. The second paragraph is but a naked denial of any legal obligation on the part of Sheriff Conway to pay the sum demanded. In the third paragraph, it is asserted that the court (Court of Chancery) is without jurisdiction to grant the relief for which the petitioners pray, and the only averment of fact to be discovered in the answer is in the fourth paragraph in which it is stated that at the time the check of the purchaser, Raymond P. Thompson, was delivered to the under-sheriff, he, Thompson, had sufficient funds in the Pleasantville National Bank, upon which the check was drawn, to pay the same and that he, Thompson, thereafter stopped payment on the check before it was presented for pajonent.

Assuredly, if Sheriff Conway had actually received the initial payment of $1,200 from the purchaser at the first sale, the plaintiffs could maintain an action of assumpsit against the sheriff for money had and received. Adams v. Disston, 44 N. J. L. 662. This motion presents the question whether, having accepted from the purchaser instead of cash a check, the payment of which was thereafter stopped, the sheriff escapes liability to the plaintiffs whose rights were thereby affected. Whether the petition, which is now to be regarded as the complaint, is said to allege a cause of action for money had and received or is in the nature of an amercement or for neglect or default, is obviously a matter of mere form because the facts set forth in the petition are fully and specifically alleged and comprehensively admitted. The petition clearly alleges a cause of action. The non-payment of the check comes to light with the averment of such fact in the answer.

It seems to be the well settled law that in the absence of statutory authority, order of court or consent of the execution creditor, a sheriff cannot sell on credit, and if he receives anything other than cash in discharge of an execution or in payment for property sold by him, he must respond in cash to the execution creditor. A sheriff who has sold property under an execution cannot successfully resist the right of the plaintiff in execution to receive the proceeds of the sale by alleging as a defense that he, the sheriff, imprudently or indiscreetly extended credit to the purchaser or permitted the purchaser to become possessed of the property without paying the purchase price according to the terms of the sale. Adams v. Disston, supra. An examination of the earlier cases reveals that a sheriff was liable to an execution plaintiff for the acceptance, without plaintiff’s consent, of depreciated currency in satisfaction of the execution. It is, -of course, true that the liability of a sheriff as thus expressed has arisen no doubt largely from the fact that the sheriff has by the acceptance of something other than cash or by the extension of credit, satisfied in whole or in part the execution against the judgment debtor. The judgment creditor, having thus lost his right to collect under the execution, is entitled to his remedy against the sheriff. On the other hand, a judgment debtor has an interest in the property sold, and a sheriff cannot in any unauthorized manner deprive him of the benefit of an advantageous sale. It would therefore seem that a sheriff cannot yield any substantial right of either the creditor or the debtor arising out of the execution sale without incurring liability for consequential loss to either the judgment creditor or judgment debtor as the case may be.

Returning to the instant case, when the sheriff struck off the mortgaged premises to Thompson at the purchase price of $12,000 it was then the substantial right of the present plaintiffs to have the sheriff then and there collect from the purchaser ten per centum of the purchase price in accordance with the terms of the sale, and if the purchaser failed to comply, the mortgaged premises could then be resold likewise in accordance with the terms of the sale. The answer states that there were sufficient funds in the bank to the credit of the purchaser with which to pay the check at the time the sheriff accepted it. No doubt this was the reason why the sheriff assumed the responsibility for accepting the purchaser’s check instead of cash for the initial payment on account of the purchase price. The fact that Sheriff Conway assumed that the check was good and would be paid upon presentation is indicative of his good faith in the acceptance of the check, but by its acceptance he was certainly releasing the purchaser from his immediate obligation to comply with the terms of the sale. He accepted a check in lieu of the cash and thereby assumed the risk of the non-payment of the check. The sheriff, of course, must look to the purchaser. Townshend v. Simon, 38 N. J. L. 239.

In Robertson v. Bremer, 90 N. Y. 208, the court was concerned with circumstances similar to those present in this case. The sheriff had accepted a check from the purchaser at an execution sale which remained unpaid. The property, subject to levy, was thereafter resold at a purchase price much less than that submitted at the first sale. It was claimed that the sheriff could not be held responsible for more than the amount realized at the last sale. The court concluded: “When the sheriff assumed to take Walsh’s check and put him in possession of the property and deliver the same to him and close the sale, he made himself responsible for Walsh’s bid. A sheriff in such a case must demand money for property sold, and if that is not paid he must then and there avoid the sale and resell the property or postpone the sale giving notice thereof and then make a new sale at a subsequent time. But if he takes anything but money, gives credit to the purchaser, delivers the property to him and closes the sale, then what he takes must be treated as money in his hands to be applied upon the executions.”

In its relation to the duty of a sheriff, no significant distinction is discernible between sales of chattels and of real estate. The only difference is that title may be said to pass in chattels by the sale, whereas in the sale of land the deed is necessary to convey the legal title. The rights of the buyer in both instances are certainly fixed when the bid is accepted. When the property, whether real or personal, is struck off and the purchaser subscribes to his bid, each party may compel performance by the other. All that remains necessary to complete the transaction is merely a compliance with the form of passing title. In the case sub judice, the sale was reported and confirmed. If it be true that the purchaser had the money at the time of the sale with which to make the percentage payment, he would doubtlessly have made this payment in cash if so required. Failure to require him to do so in accordance with the terms of the sale has resulted in a loss to the plaintiffs. To merely say in defense that the purchaser stopped payment on the check is not a legally sufficient answer to the alleged cause of action of the plaintiffs. Attention is not invited to any authorities supporting the legal sufficiency of such a defense. The motion to strike out the answer must accordingly be granted.

To hold the selling officer responsible for the proceeds if a check accepted in part of full payment of the purchase price of property sold, may in some circumstances seem to be hard and unjust, but if the law were otherwise, a practice might naturally arise that would materially impair the sincerity of the bids made at such sales, afford opportunities to unscrupulous bidders and render generally such sales uncertain of consummation. The selling official may obtain the consent of the parties in interest to accept deferred payment of the purchase price at such a sale and, in many instances, he may feel warranted in accepting the check of the bidder, but in the latter case, he must assume the chance of incurring liability resulting from the non-payment of the check. A rule will be entered in accordance with this conclusion.


author: Per Curiam:

text:
    SOUTH BROAD BUILDING AND LOAN ASSOCIATION OF NEWARK, NEW JERSEY, PLAINTIFF-APPELLANT, v. THOMAS BRUNETTO AND ROSE BRUNETTO, DEFENDANTS-RESPONDENTS.
    Submitted January 27, 1933
    Decided June 29, 1933.

      Before Justices Bomne and Donges.
    Eor the plaintiff-appellant, Voigt & Otto.

    Eor the defendants-respondents, Edwin G. Adams.

   Per Curiam:

This is an appeal from a judgment of the Essex County Circuit Court entered upon order of Judge Mountain who struck out the complaint as setting up no cause of action.

The suit was on a bond for deficiency under a foreclosure of a mortgage, the deficiency amounting to some $16,000. The complaint set up all the essential facts except that it failed to aver that the notice of intention to sue for the deficiency on the bond had been filed in the register’s office, as required by the statute. 3 Comp. Stat., p. 3423. Judge Mountain held that this was a fatal defect and struck the complaint.

In this he was correct. The statute says that no judgment shall be entered in a suit for deficiency on such a bond unless the notice be filed. The filing of the notice was, therefore, a fact necessary to be established before plaintiff could prevail. In Schack v. Dickenhorst, 99 N. J. L. 120; 122 Atl. Rep. 436, the late chief justice, speaking for the Court of Errors and Appeals, said: “Under elementary rules the existence of every fact upon which his right of action depends must be specifically averred in his complaint. In the absence of such an averment as we have indicated the presumption is that no such fact exists and consequently no liability on the part of the defendant is shown.” See, also, State v. Mayor, &c., of Jersey City, 94 N. J. L. 43; 109 Atl. Rep. 15; Fletcher v. Board of Education, 85 N. J. L. 1; 88 Atl. Rep. 834. Applying this rule to the instant case, it would appear that the plaintiff has failed to plead a fact, the filing of the notice, which is essential to recovery, and the complaint, therefore, is defective.

The court refused to permit an amendment on the ground that the time limited by the statute had expired, but this action is not challenged by the ground of appeal.

The judgment under review is affirmed, with costs.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. WILLIAM BLOOM, PLAINTIFF IN ERROR.
    Submitted January 27, 1933
    Decided July 5, 1933.
    Before Justices Bodine and Donges.
    Bor the plaintiff in error, Chcmdless, Weller <& Selser.

    Bor the defendant in error, George F. Losche.

   Per Curiam.

This writ of error brings up the conviction of one William Bloom under an indictment charging the carrying of a concealed weapon.

It appears that on January 14th, 1931, the state police conducted a raid on certain premises in the borough of Walling-ton, Bergen' county. They found a still. Within the premises, which appeared to consist of factory buildings and yard, they encountered the plaintiff in error. In his pocket was a pistol, fully loaded. He had no permit to carry it. He was indicted, and, upon waiving trial by jury, was found guilty by Judge Leyden holding the Second Criminal Judicial District Court of Bergen county.

The case is here under assignments of error and specifications of causes for reversal under the one hundred and thirty-sixth section.

Four points are argued. The first is that it was error to refuse to strike testimony of a police officer as to the finding of a still upon the premises. The ground of the motion to strike, which came after two questions had been answered without objection, was that the evidence had no bearing upon the particular charge. The testimony was material. The conditions existing at the time and place of a crime are admissible. State v. Sage, 99 N. J. L. 229; 122 Atl. Rep. 827. Furthermore, it was harmless. There was no jury. The trial judge, in discussing the issues he was to decide, said, “as I view it I am not concerned with whether or not a still was in operation. 'It is just simply whether or not this man was carrying a concealed weapon in violation of the law.” It thus appears that the evidence did not enter into the determination of the factual question. Really there was no factual question involved, because plaintiff in error admitted carrying the gun.

The second point is that the Second Judicial District Court had no jurisdiction to try the case. It is said that there was no reference of the case by the Oyer and Terminer. However, the record discloses on pages 5 and 6, a written waiver of jury trial signed by plaintiff in error, and request for trial at the Special Sessions. Then appears an order of reference to Judge Leyden by Judge O’Regan, of the Quarter Sessions. There was never any objection to the jurisdiction of the court, as there should have been. State v. Winters, 61 N. J. L. 613. There is no merit in this point.

The next point is that the indictment failed to charge a crime. Objections to the indictment must be made before the jury is sworn, under the statute. There was no jury here, but the objection, in the form of a motion to dismiss, was made at the end of the state’s case. This was too late. Furthermore, the indictment clearly charges the offense of carrying a concealed weapon. The failure of proof cannot be urged on such a motion.

It is also argued under this point that the law in its present state does not provide a penalty for carrying weapons. The reasoning is that the act of 1928 prohibits carrying weapons, except in certain cases, without a license, without providing a penalty, and, therefore, the provisions of the 1927 statute providing that such an offense shall be a high misdemeanor are repealed. Without assenting to this contention, we think it unnecessary to deal with it on a motion to dismiss the indictment.

The fourth and last point is that there should have been a verdict directed for plaintiff in error. The language of the statute is “provided, however, that nothing herein contained shall prevent any person from keeping or carrying about his or her place of business, dwelling house or permises any such revolver * *

Plaintiff in error contended that he was employed as a watchman and given the revolver by his employer for the purpose of protecting the premises, and that the statute means that any employe may carry a weapon in and around his place of employment. Cases from other states, not identical in facts, are cited. We do not think that this is a reasonable interpretation of the meaning of the act. An owner of a business or person in charge of a business might be included, but certainly every person employed in and about a factory, store or office building is not included. There could be few offenders if this were the law.

On the whole, we fail to see any merit in this writ. Plaintiff in error admittedly carried a weapon without a permit and now simply says he did not violate the law.

The judgment is affirmed, with costs.


text:
    FRANK A. LEERS, RELATOR, v. HENRY E. DIEHL, CLERK OF THE TOWNSHIP OF TEANECK, RESPONDENT.
    Submitted January 27, 1933
    Decided June 29, 1933.
    Before Justices Paekek, Lloyd and Heiiee.
    For the relator, James 8. Be Twrck.

    For the respondent, Warner W. Westervelt, Jr.

   Per Curiam.

The application is based on sections 606, 1101 and 1102 of chapter 113 of the laws of 1923 (Pamph. L., p. 217) entitled “An act relating to, regulating and providing for the government of municipalities, except counties, by a municipal council and a municipal manager.” It appears without dispute that five separate petitions were submitted to the town clerk, each praying for the removal of a named member of the council; that the clerk, on examining the petitions, decided that they were not signed by the requisite number of electors; and that supplemental or amending petitions were then filed, as a result of which the clerk ascertained there was a sufficient number of signers in each case. However, the clerk refused to proceed on the petitions as provided by section 1102, and thereupon the present rule was allowed requiring him to show cause why he should not be required to notify the various incumbents of the filing of said petitions and send out a call for the recall election contemplated by the statute.

The argument against the rule, as far as we are able to understand it, is that although it is conceded, or not denied, that the petitions are generally in proper form and contain the necessary signatures of properly qualified electors, the clerk was under no duty to give notice and issue the call unless satisfied that the petitions were “sufficient” to use the word contained in the statute. This argument becomes more intelligible perhaps on stating the second point made, which is the crux of the objection, viz., that the statute requires the petitions to contain “a general statement of the grounds upon which the removal is sought,” and that these several petitions do not, nor does any of them contain the statement of grounds required by the statute. When the argument is anatyzed, it comes down to this, that the grounds stated are not good grounds for removal.

It seems to he assumed or claimed for the respondent that it is the function of the clerk to decide not merely whether the petitions are sufficiently signed, but also whether the grounds so assigned in them are sufficient; and the case of Ryer v. Holland, 10 N. J. Mis. R. 1039, is relied on as supporting this claim. We find nothing, however, in this case to justify the claim any further than that the clerk is to decide as to the signatures. The question of sufficiency of grounds was not considered at all in that case, and we find nothing in the statute which seems to look towards any such duty on the part of the clerk. It may be, though we do not so decide, that if the petitions should state no grounds whatever, they would be ineffective as requiring the clerk to notify the incumbents and call an election, but this is not the case here.

As to one councilman (Ely) we are informed by the brief of counsel that he resigned after the rule to show cause was signed. On the assumption that this information is correct, he drops out of the case.

As to the other four, a reason assigned for removing each of them is, that “in the opinion” of the signers, “he has not permitted the municipal manager to exercise the full authority of his office within the spirit of the Municipal Manager act.” In addition, it was charged against Warner, that “in our opinion he has usurped the authority of his office to his personal interest, and further, he has moved out of the township of Teaneck and is not an inhabitant thereof;” against Paquin, “he has failed to oppose the introduction of legislation attempting to abrogate the constitutional right of free speech.” Morten is further charged with having “sponsored legislation attempting to abrogate the constitutional right of free speech;” and “has been arrogant and autocratic in the performance of his official duties.” This last charge is also made against Yan Wagner.

A reading of the foregoing grounds satisfies us that while they may be open to criticism in other respects, they are clearly sufficient for the purposes of the statute. That statute has placed the power of recall in the hands of the electorate upon compliance with certain conditions. Whether or not the power of recall is a good thing, is a question for the legislature to decide, as well as the conditions to be satisfied. These petitions have clearly met those conditions and the refusal of the clerk to act upon them was without warrant.

A peremptory writ will be ordered.


author: Lawrence, C. C. J.

text:
    ANNA SAKOS, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF STEPHEN SAKOS, DECEASED, PLAINTIFF, v. HARRISON BYERS AND MABEL B. BYERS, DEFENDANTS.
    Decided July 12, 1933.
    For the rule, Frank O. Turner.

    Opposed, Silber & Silber (Osie M. Silber).

   Lawrence, C. C. J.

This was a suit under the Death act, arising out of fatal injuries to a boy nine years of age in an automobile accident, for which defendants had been held responsible because of the negligent operation of the vehicle. The sole question before the court and jury at the trial was the amount of damages to which plaintiff was entitled. The next of kin were the mother and several brothers and sisters. The deceased boy was said to have been normal and physically sound and healthy, with the average expectancy of life of a child of similar age. He had already been earning a small sum each week during the summer months and when not in school.

The jury returned a verdict in favor of plaintiff for $5,000. Under the rule taken out in behalf of defendants it was argued that this verdict was so clearly excessive as to indicate that the jury had not given proper consideration to the case. In support of this contention, the following cases, covering a period of years, were cited: May v. West Jersey and Seashore Railroad Co., 62 N. J. L. 67; 42 Atl. Rep. 165, arising out of the death of a boy fifteen years of age, earning $20 a month, in which a verdict of $3,000 was reduced to $1,500; Rowe v. New York and New Jersey Telephone Co., 66 N. J. L. 19; 48 Atl. Rep. 523, involving the death of a boy twelve years old, verdict of $5,126 allowed to stand for $2,000; Cook v. American E. C. & Schultze Gunpowder Co., 70 N. J. L. 65; 56 Atl. Rep. 114, in ease of boy thirteen years old, award of $2,500 stated by court to be clearly excessive; Briggs v. Public Service Railway Co., 91 N. J. L. 1; 102 Atl. Rep. 382, relating to the death of a boy eighteen years and eight months old, earning $30 a month, verdict in special circumstances indicated reduced from $5,000 to $2,500; and Genatt v. Bentz, 4 N. J. Mis. R. 375; 133 Atl. Rep. 75, ease of boy nine years and two months old, reduction of verdict for $10,200 to $3,500. As against these citations, not recent, the following were relied on by counsel for plaintiff: Smiley v. Reid Ice Cream Corp., 5 N. J. Mis. R. 82; 135 Atl. Rep. 504, involving death of girl eight years and eleven months old. Father had died and child lived with mother who had remarried. Yerdict for $5,000 sustained, consideration- being given to talents, appearance and abilities of child, with the statement that such a verdict was in no sense so excessive as to shock the conscience or to lead to the belief that the jury were prejudiced against the defendant company. Also Fedor v. Kuehne Chemical Co., 8 N. J. Mis. 8. 298; 147 Atl. Rep. 827, in which a verdict awarding $5,000 for the death of a boy “close to nine years,” was approved.

As further indicating the trend of decisions on the ad-measurement of damages in such cases, beginning in the year 1902, with the frequently cited case of Graham v. Consolidated Traction Co., 65 N. J. L. 539; 47 Atl. Rep. 453, in addition to those referred to by the respective counsel, there may be appended: Hoar v. Public Service Electric Co., 4 N. J. Mis. R. 716; 134 Atl. Rep. 184, in which the boy was seventeen years of age, of limited education, and a verdict of $5,500 was reduced to $4,000; Gibson v. Public Service Railway Co., 4 N. J. Mis. R. 944; 134 Atl. Rep. 895, boy of fourteen years, verdict, $7,500, allowed to stand for $4,500; DeBelmonte v. John T. Harrop Co., 134 Atl. Rep. 895, in which $7,000 award was reduced to $4,500 — boy twelve years of age; Amabile v. Crane, 5 N. J. Mis. R. 149; 135 Atl. Rep. 692, boy ten years old, award of $5,000, $4,000 allowed; Mauthe v. B. & G. Service Station, 5 N. J. Mis. R. 981; 139 Atl. Rep. 245, boy fifteen and a half years, $8,000 sustained in circumstances stated; Jorgensen v. Wilberg, 6 N. J. Mis. R. 79; 139 Atl. Rep. 904, boy thirteen years, in excellent health at time of death, and of good mental ability, numerous next of kin, verdict of $6,000 sanctioned, reduced purchasing power of money regarded as factor — year 1928; and Ward v. Public Service Co-ordinated Transport, 8 N. J. Mis. R. 836; 152 Atl. Rep. 82, arising out of death of boy five years and ten months old, of average bodily health and mentality, award of $5,000 reduced to $3,000.

In examining these cases, it is apparent that no one of them can be considered as a precedent precisely controlling a given case, for the reason that in each various circumstances specially applicable entered into the decision, such as the current value of the dollar (see Genatt v. Beniz, supra), the physical and mental characteristics of the child, its potential abilities, the normal expectancy of life as affecting the next of kin, as well as other conditions having a probable influence on its future capacity and accomplishment so far as a reasonable expectation of pecuniary advantage to them would have been concerned. In the present case if plaintiff consents to a reduction of the verdict to $4,500, the rule to show cause will be discharged, otherwise it will be made absolute as to damages only.


text:
    BENJAMIN BARENSON, PLAINTIFF-RESPONDENT, v. BARNEY ZARITSKY, DEFENDANT-APPELLANT.
    Submitted January 27, 1933
    Decided July 10, 1933.
    Before Justices Bodine and Donges.
    Por the appellant, Barnett Berr.

    Por the respondent, Max L. Rosenstein.

   Per Curiam.

This is an appeal from a judgment of the Passaic County Circuit Court entered upon the assessment of damages by a jury, after the entry of judgment interlocutory by default.

The action was in replevin, the writ and complaint having been served July 27th, 1931. There was a motion to strike the complaint which was denied in part and granted in part. The defendant re-replevined and gave bond to the sheriff. Ho answer was filed by defendant, due, it is said, to neglect in the office of his attorneys. Judgment interlocutory by default was entered. A rule to show cause why the judgment should not be opened was allowed and discharged after the taking of testimony thereon.

Trial for the assessment of damages was had before a jury. At the trial it developed that some of the goods mentioned in the writ were not in the possession o£ defendant when the writ was served. The trial court admitted evidence of the value of these goods, permitted the jury to include them in the assessment, and of its own motion directed an amendment to the complaint to add a count for the conversion of these goods.

Defendant moved to dismiss the complaint, which was denied, and now argues that after the disposition of the motion to strike the complaint, he should have been ruled to plead. This is not so. However, this action is not the subject of any ground of appeal.

1. The first point is that it was error to deny the application to open the default judgment. However, there was no .abuse of discretion in this action.

2. That it was error to permit the assessment of damages without requiring plaintiff to prove his right to possession. That question was settled by the entry of the default judgment.

3. That it was error to admit in evidence a copy of the demand for the chattels in place of the original. Ho claim is made of any inaccuracy. There was no harmful error in this.

4. That it was error to permit the plaintiff to testify as an expert. There was evidence to qualify him and, this being a court question, there was no error.

5. That it was error to admit testimony as to the value of the goods no longer in the possession of the defendant. This will be dealt with later under point 9.

Points 6 and 7 have to do with admission and rejection of testimony and seem not to be substantial.

Point 8 challenges a statement of the court to the jury that there was evidence of malice in the case. This was true, because there was evidence of the mutilation of records from which the jury might infer a malicious intent to defraud the plaintiff of his property.

9. That it was error to amend the complaint to add a count for conversion. This embraces point 5 as to the admission of testimony on this subject. We are of the opinion that this was error. The complaint was in replevin alleging unlawful detention of plaintiff’s property. The purpose of the trial was to assess the value of such goods as the sheriff actually seized under the writ. The issues of title and unlawful detention were settled by the interlocutory judgment. At the trial, evidence was taken of the value of goods and at the end of the trial the amendment was permitted. It is true that the Practice act permits amendments setting up new causes of action at the trial, but the facts developed must form a basis for such amendments. In the present case there can be no such facts, because all the questions other than the value of the chattels were determined by the default of defendant in not answering. There was no charge of conversion in the complaint, and, therefore, there could be no admission of it by failure to answer. Nor could a count for such conversion be included in a replevin action.

This requires a reversal and a new trial confining the issue to the value of the goods replevined.


author: Perskie, J.

text:
    FELIX R. SANTANGELO, PROSECUTOR, v. CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY ET AL., RESPONDENTS.
    Decided July 8, 1933.
    Before Justice Perskie, sitting alone.

      Por the motion, Green <S> Green.

    Opposed, Romulus P. Rimo (Carr •& Carroll).

   Perskie, J.

Prom the docket entries as they remain on file in the clerk’s office in this case, submitted with this application, together with the memorandum filed by counsel for the respective private parties it appears that a writ of certiorari was allowed on August 7th, 1931, returnable October 6th, 1931, and directed to the civil service commission of the State of New Jersey. The purpose of the writ it is said was to test the action of the commission in appointing one Harry B. Crook to the office of chief of county detectives for Monmouth county instead of appointing the prosecutor to that position. Notice of argument was filed on October 1st, 1931, and reasons were filed on October 6th, 1931. On October 16th, 1931, a stipulation of facts agreed upon by counsel for prosecutor and respondents, was filed. Nothing further appears to have been done until April 27th, 1933. On that day, Messrs. Green & Green, who represent Harry B. Crook, were substituted and obtained an order to amend the writ allowed on August 7th, 1931, so that Harry B. Crook was joined as a party respondent. This was unopposed by the attorney-general. The order aforesaid gave leave to respondent as well as prosecutor to take added depositions; it was duly served but no depositions were taken thereunder. On May 16th, 1933, counsel for Harry B. Crook made application before me, returnable May 27th, 1933, for an order to dismiss the writ of certiorari, on the following grounds:

1. The prosecutor has failed to prosecute said writ agreeably to law;

2. The prosecutor has failed to prosecute said writ pursuant to the rules and practices of this court; and

3. The prosecutor has failed to exercise due diligence in the prosecution of said writ and has been guilty of laches.

Memorandum of prosecutor was submitted to me on June 28th, 1933, and raises three points in opposition to this application. They are as follows:

1. This matter has apparently been held in abeyance by an agreement between attorney for the prosecutor and William A. Stevens, attorney-general of the State of New Jersey.

2. That since Harry B. Crook did not become a party until April 27th, 1933, he is not in a position to object to delay occurring prior to his having been made a party — particularly so — since the delay was in nowise objected to by the-attorney-general.

3. Inasmuch as the return to the writ has already been made that I am without jurisdiction, sitting alone, as a single justice, to dismiss this writ.

I find it unnecessary to treat the first two points because-I am of the opinion that the third point is well taken. In the case of Winegrath v. Fairview, 77 N. J. L. 449; 72 Atl Rep. 91, Mr. Justice Minturn held:

“An allocatur to a writ of certiorari may be vacated by the justice who granted it at any time before the return day mentioned therein.”

And in the case of Daniel B. Frazier Co. v. Long Beach, 10 N. J. Mis. R. 747; 161 Atl. Rep. 51, Mr. Justice Bodine, following the Winegrath v. Fairview case, supra, held:

“Until a return is made to a writ a Supreme Court justice, who allowed it can amend, modify or recall the same.”

I have personally examined the file in this case as it remains-in the clerk’s office and found that a return to the writ was made by' Charles P. Messick, chief examiner and secretary to the New Jersey state civil service commission and filed on October 6th, 1931. The amendment to the writ allowed on April 27th, 1933, does not affect this return. I am therefore without jurisdiction in the premises. Application is denied, with costs.


text:
    MELLVILLE B. PARKER AND CHARLOTTE WHEELER, PROSECUTORS, v. BOROUGH OF POINT PLEASANT AND HARVEY R. BILLS AND FLORA A. BILLS, RESPONDENTS.
    Decided July 10, 1933.
    Before Justice Perskie, sitting alone.
    Por tlie prosecutors, Peter Bentley.

    Por tlie respondents, Howard Ewart.

   Perskie, J.

Mellville B. Parker, prosecutor, and Charlotte Wheeler, prosecutrix (who shall be hereafter referred to as prosecutors), are the owners of summer homes in the borough of Point Pleasant, Ocean county. These properties are more particularly located on the west and east side, respectively, of the property owned by the respondents (who shall be hereafter referred to as Bills). The three properties front the south side of the Manasquan river. The property of Bills is known as “Clark’s Landing” and has been used as a popular picnic ground and amusement center for upwards of fifty years, and for a long time prior to the acquisition by either prosecutors of their respective premises. The Bills own the riparian lands under the waters of the Manasquan river abutting their premises. They concluded to make the following improvements thereto:

“The construction in the Manasquan river of a double yacht basin, divided by pile and timber pier and walkway, enclosed on three sides by a similar pier and walkway, to which is added facing of timber and sheathing extending from the level of the walkway on the top of the pier to a line two feet above the river bottom, and also making of solid fill for a distance of fifty feet, and the laying of a rip-rap bulkhead for protection along the edges of the fill.”

Whereupon on November 17th, 1931, they made application for a permit for said undertaking to the state board of commerce and navigation. On November 26th, 1931, the said board in pursuance to chapter 123 of the laws of 1914, granted the permit. This permit remained in force by its terms for one year of this date. Nothing having been done under the said permit within the year,, they made application for a renewal of the permit and on January 25th, 1933, the same was granted. The work authorized thereunder was as follows:

“Construction of two pile and timber yacht basins and making of a solid fill, with rip-rap protection on lands under waters of Manasquan river, south shore, about one-half mile east of the Bay Head-Manasquan canal, in the borough of Point Pleasant, and county of Ocean, granted by the State of New Jersey to Roderick A. Clark, December 26th, 1895, as shown on a plan dated November, 1931, and filed with the board of commerce and navigation November 18th, 1931.”

The war department of the United States of America likewise gave its permit for this undertaking on March 17th, 1933, which, by its terms, continued to be effective up and until December 31st, 1936.

The action of the borough of Point Pleasant in the premises is set forth in the resolution adopted by it on February 2d, 1933, and is in the following form:

On February 2d, 1933, the council adopted its final resolution which reads as follows:

“Councilman Devoe offered the following resolution and moved its adoption:

Whereas, on February 15th, 1932, Harvey E. Bills did present to the borough council a plan, showing specifications and dimensions concerning a proposed extensive development of his riparian lands on and under the Manasquan river, including a boat basin, said basin being so designed as to protect boats from the severe action of storms; and

Whereas on the date aforesaid council did waive its objections to the said project; and

Whereas on February 29th, 1932, council did rescind its action of February 15th, 1932; and

Whereas, because of objections to the fact that sheathing covering a part of the boat basin was shown on the original plan as extending to the river bottom; and

Whereas, the said Harvey E. Bills has revised his plans to the extent that sheathing shall extend downward to approximately low water level, thus allowing an unobstructed flow of tides; and

Whereas, it has been the desire of council to observe to a proper degree the desires of adjoining property owners and to permit nothing which might embarass the department of commerce and navigation of the State of New Jersey or the war department of the federal government in the establishment of the harbor lines in the Manasquan river; and

Whereas, on January 28th, 1933, at Manasquan, New Jersey, there was held a hearing by the war department on (1st) the desirability, advisability or necessity of establishing of harbor lines and (2d) the advisability and propriety of establishing the lines for solid fill and also for pierheads on lines substantially as proposed and submitted by the Manasquan Eiver Protective Association; and

Whereas, on the date last aforesaid W. J. Wheeler and M. B. Parker, property owners adjoining the said Harvey E. Bills, did have the opportunity of making their views known on the matter of establishment of harbor lines, of solid fill and pierhead;

Now therefore be is resolved, that this council, having great confidence in the department of commerce and navigation and in the war department to keep within their approved bounds and all development of riparian lands on the Manasquan river, does hereby waive its objections to the proposed development of Harvey E. Bills.

Be it further resolved, that two certified copies of this resolution be tendered to the department of commerce and navigation.”

Prior to the issuance of the aforesaid permits by the state board of commerce and navigation and the war department, two hearings were conducted on the subject, one at Point Pleasant on February 13th, 1932, and the other hearing at Manasquan, New Jersey, on or about January 28th, 1933, at which latter hearing Mellville B. Parker attended. In addition thereto several hearings were held by the governing body of the borough of Point Pleasant at one or more of which Mellville B. Parker was present and was heard with respect to the proposed improvements and to the waiver by the borough of any objection to the making of the said improvements.

Work was commenced on the improvements about April 1st, 1933; between $2,400 and $2,500 has been expended and same was about eighty per cent, completed before the prosecutors sought the aid of the court on May 20th, 1933.

The application of the prosecutors for this writ is based on the following grounds:

1. No written application was made to the borough.

2. That no legal notice was given of the hearing before the borough council; and

3. That the borough never issued to Bills a permit or license for the improvement in question.

These objections are predicated on the requirements of sections 1, 3 and 4 of article 28, chapter 152, laws of 1917, page 420. It is conceded that there has been no compliance with the aforesaid provisions. The answer is made that there is nothing in the provisions of the Home Eule act aforesaid which compels a municipality to assume jurisdiction of this type of an improvement to the water front within said municipality; that since the borough never adopted a regulatory ordinance provided in the Home Eule act aforesaid, that it never acquired jurisdiction over the subject-matter and therefore there was no need on the part of the respondents to comply therewith; that the permits of the war department and that of the state board of commerce and navigation are all that is necessary for the making of the improvements here challenged. Suffice it to point out that if the contention of the prosecutors is sound in this respect, then a municipality by inaction, i. e., not adopting a regulatory ordinance on the subject, could deprive a property owner of the lawful use and enjoyment of his property. But assuming for the purpose of illustration that the Home Eule act aforesaid is applicable, there still appears to me to be two unanswerable objections thereunder to the allowance of the writ. First: Section 4 of article 28, of the Home Eule act, inter alia, provides that any improvement made in navigable waters, as herein contemplated, without a license of the municipality, &c., shall be deemed a nuisance; that the persons erecting same shall be guilty of a misdemeanor punishable by fine or imprisonment, &c., and that if the nuisance shall be in existence at the time of conviction and sentence, it shall be lawful for the court, in its discretion, to direct either the defendant or the sheriff of the county at the expense of the defendant, to abate the same.

Our court has held that where there is another remedy by indictment or civil action the allowance of a writ of certiorari should be denied. Oliver v. Jersey City, 63 N. J. L. 99; 42 Atl. Rep. 782; Millville v. Board of Education, 100 N. J. Eq. 162; 134 Atl. Rep. 748; affirmed, 101 N. J. Eq. 303; 137 Atl. Rep. 916.

Second: Section 6 of article 28 of the Home Eule act gives a person aggrieved by any decision of the governing body, either granting or refusing to grant in whole or in part a license to erect, &c., an improvement as herein contemplated, the right thirty days after the determination to present a petition to the Common Pleas Court, who, upon due notice to all interested, shall conduct a hearing and shall make such order in the premises as it may think the governing body should have made and said order shall be final and conclusive. This the prosecutors did not do.

It is likewise clear that at the time this application was-made respondents had already expended between $2,400 and $2,500 and that the undertaking was about eighty per cent., completed. While there is no hard and fixed rule that can be laid down for a guidance on the subject-matter of laches,, nevertheless, when one seeks to invoke the discretion of the court to grant the extraordinary writ of certiorari, he must prosecute his claim with due diligence. To permit the respondents to expend the money they did and practically complete the undertaking, to the extent of eighty per cent. — before seeking relief — is not a diligent prosecution of one’s rights. The prosecutors are guilty of laches. Loomis v. Union City, 6 N. J. Mis. R. 330; 142 Atl. Rep. 170.

What would the granting of a writ of certiorari accomplish from a practical standpoint? The answer is obvious. It would accomplish nothing. The undertaking is practically completed. The setting aside of the resolution adopted by the borough council on February 2d, 1933, would mean nothing. Where the allowance of a writ of certiorari will accomplish nothing, it should be denied. Riddle v. Commissioner of Banking and Insurance, 100 Atl. Rep. 692.

I have carefully considered all the facts, exhibits, permits, a photo of the improvements and all the circumstances, and fail to find any merit in the application. The application for a writ of certiorari, or a rule to show cause, must therefore be refused, with costs.


author: Oliphant, C. C. J.

text:
    THE ATLANTIC REFINING COMPANY, A CORPORATION, PLAINTIFF, v. NUCAR FORWARDING CORPORATION, A CORPORATION, AND W. BRADFORD STRYKER, DEFENDANTS.
    Decided July 12, 1933.
    For the plaintiff, William N. Cooper.

    For the defendants, Crawford Jamieson.

   Oliphant, C. C. J.

This cause of action is before the court for determination upon the complaint, the answer of the defendant W. Bradford Stryker, the amended reply and a stipulation of facts.

The defendant admits the matters and things set forth in the first count and consents that judgment be entered against him in the sum of $150 with interest from February 1st, 1931.

As to the second and third counts, the defendant, under the stipulation of facts, admits that the Nucar Forwarding Corporation made, executed and delivered its promissory notes in the sums of $350 and $550 to the plaintiff; that they were endorsed before delivery by him; that he was treasurer of the Nucar Forwarding Corporation and signed the notes as such and that the notes were delivered before maturity. The maker never demanded payment by the endorser, the defendant W. Bradford Stryker. The notes were never presented for payment nor was demand upon the Nucar Forwarding-Corporation ever made therefor. Nothing has been paid on the notes. They were given for valid consideration.

Before the due dates of the notes the Nucar Forwarding -Corporation was adjudicated a bankrupt in the United States District Court, the petition being involuntary, but the Nucar Forwarding Corporation consenting thereto by formal consent filed. Said consent is signed by the Nucar Forwarding Corporation by W. Bradford Stryker, president, and attested by W. Bradford Stryker, secretary. The bankruptcy schedules were signed and sworn to by W. Bradford Stryker, the defendant herein.

No answer has been filed in this cause by the defendant Nucar Forwarding Corporation.

The answer of the defendant Stryker says that there was no presentment or demand by the maker for the payment of the notes; that he had no notice of presentment and protest and that he did not request plaintiff not to present and protest the notes in suit.

Before thé passage of the Uniform Negotiable Instrument act (Pamph. L. 1902, p. 583), the law was well settled in this state that knowledge that the maker of a negotiable instrument was insolvent or could not pay same, did not dispense with the requirement that the holder make demand for payment and give notice of non-payment to the endorser. Oliver v. Munday, 3 N. J. L. 531; Sussex Bank v. Baldwin et al., 17 Id. 487. Bigelow in his work on Bills and Notes (third edition), page 393, says: “Mere knowledge that the maker cannot pay does not excuse presentment and notice.”

The Negotiable Instrument law provides in section 80: “Presentment for payment is not required in order to charge an endorser where the instrument was made or accepted for his accommodation, and he has no reason to expect that the instrument will be paid if presented,” and by section 109 provides: “Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied.” The question, therefore, here is whether the facts stipulated show that presentment was not necessary and whether they show a waiver so as to dispense with the necessity of nonpayment.

The case of O’Bannon Co. v. Curran, 129 App. Div. 91; 113 N. Y. Supp. 359, is squarely in point. Prior to the maturity of the notes the maker had been adjudicated a bankrupt and the adjudication was based at least in part upon the consent of the Nucar Forwarding Corporation, signed by the defendant Stryker, in his official capacity of president and secretary. While he is only liable as endorser as an individual, yet as an individual he knew when the notes fell due that the corporation could not pay them as it had been adjudicated a bankrupt in proceedings in which he participated. Under such circumstances, the defendant must be deemed to have waived, at least impliedly, within the meaning of the Negotiable Instrument law, presentment of the notes and notice of dishonor. By his consent and with his cooperation it had been rendered impossible for the maker to pay, all of its property being then in custodia, legis. There could have been no injury to the defendant by the failure of presentment and to give him notice of non-payment. The aforesaid case was cited with approval in the case of Manufacturers Trust Co. of New York v. Wechsler, 7 N. J. Mis. R. 886; 147 Atl. Rep. 459, wherein the defendant was the endorser of a note of a corporation of which he was president. A receivership bill was filed in the federal court at his instance. The court said: “When he filed the receivership bill in the United States District Court alleging under oath insolvency, he put it beyond the power of the corporate maker, of which he was president, to meet the note at maturity. Further, he knew before maturity that an injunction procured at his instance made it impossible for the maker to pay the note. He knew, therefore, that the note could not and would not be met because of his acts. Such conduct constituted a waiver of notice.”

A different question might be presented if there was merely knowledge of insolvency or inability to pay.

Judgment may be entered in favor of the plaintiff and against the defendant, in the sum of $150 with interest from February 1st, 1931, on the first count; $350 with interest from August 20th, 1931, on the second count, and $550 with interest from August 27th, 1931, on the third count.