text:
    SIMON HARRIS, PROSECUTOR, v. STATE BOARD OF REGISTRATION AND EXAMINATION IN DENTISTRY, DEFENDANT.
    Submitted February 2, 1931
    Decided June 4, 1931.

      Before Justices Parker, Campbell and Bodine.
    Eor the prosecutor, Peter (John.

    Eor the defendant, William A. Stevens.

   Per Curiam.

The writ of certiorari brings up for review a resolution, of the state board of registration and examination in dentistry-revoking the license of Simon Harris to practice dentistry in. this state.

Section 7 of chapter 161, Pamph. L. 1924, p. 365, provides several grounds upon which a license may be revoked, among them willful and gross malpractice and neglect in the practice of dentistry, and also the publication of grossly false, fraudulent or misleading statements of one’s art, skill or knowledge. The board found, from the proofs adduced, that Harris was guilty of malpractice and the publications of false, fraudulent'and misleading statements of his art, skill and knowledge.

Appellant argues for reversal, that the findings of the board, were against the clear weight of evidence. This does not appear to be so. There was a great deal of testimony offered respecting the charge of malpractice. Patients, who had suffered, were called and testified to facts and circumstances, which indicated gross malpractice. This testimony was,, however, in many particulars negatived by other witnesses,, and because of the view we take of other evidence offered we do not deem it necessary to review the evidence on the 'question of malpractice at length.

Harris employed an advertising agent, who wrote glowing copy and sent the same to the local papers. Although he had been practicing dentistry only since June 20th, 1926, the advertisements stated that his office has been conducted in New Jersey for fifteen years. No effort was made to correct this error, although the advertising appeared in the local papers and its copy was authorized. Below a woman’s picture, the use of which was not authorized, the following unauthorized testimonial appeared: “Dr. Harris extracted seven teeth from me with sleep air, and I never felt a thing; then he made me a partial plate, and I must say it looks good and feels natural.” Handbills were circulated containing another woman’s picture with remarks indicative that Harris had removed wrinkles from the subject’s face.

. Our examination of the resolution and the proceeding prior thereto lead us to the conclusion that the same are complete and regular in form. There is nothing to suggest that the complaint was insufficient, or that the action taken thereon wras the result of bias or prejudice.

The writ will be dismissed, with costs.


source: Caselaw Access Project

author: Pee Cueiam.

license: Public Domain

text:
    NORTH HUDSON BOND AND MORTGAGE COMPANY, PLAINTIFF-RESPONDENT, v. LIBERATO LUBERTO ET AL., DEFENDANTS-APPELLANTS.
    Submitted October 31, 1930
    Decided June 9, 1931.
    Before Justices Case, Daly and Donges.
    For the appellants, Frank I. A. Kent.

    For the respondent, Klein & Klein.

   Pee Cueiam.

This is an appeal from the Bergen Circuit 'Court and brings up a judgment entered by order of the Circuit judge after defendants’ answer was stricken out.

Plaintiff-respondent foreclosed a mortgage made by the appellants, and upon sale of the premises a deficiency arose. Thereafter, and within six months of the sale, a notice was filed in the register of deeds office of Bergen county that suit would be commenced in the New Jersey Supreme Court to recover a judgment for the deficiency. Appellants being non-residents, the suit was brought by attachment and proceeded to judgment, whereupon certain other property, which was attached, was sold to satisfy the judgment, and plaintiff purchased same. This action in ejectment was brought to secure possession of said properties. The appellants’ answer set up that the judgment for the deficiency was invalid because the notice of intention to begin the suit was not in compliance with the statute, because it did not state “the names of the parties to such bond and to such action.”

If the court in which the judgment was entered had jurisdiction over the parties and the subject-matter and there was no fraud in procuring the judgment, it is well settled that a judgment of a court of general jurisdiction cannot be collaterally impeached. McMahon v. Amoroso, 108 N. J. Eq. 263.

In the instant case the only objection raised is that the notice of the purpose to bring suit for the deficiency did not give the names of the parties to the bond and to the action. But this is not so. The notice was entitled at the suit of the present plaintiff as plaintiff therein and recited the appellants as defendants therein, and advised that suit was about to be begun in'the Supreme Court. The notice further stated that the purpose of the suit was to recover “a sum of money representing a deficiency arising on foreclosure of a mortgage executed by Rosei Luberto, also known as Rosine Luberto and Liberato Luberto, to William A. Brooks, trustee, bearing date November oth, 1926, * * * and which mortgage and the accompanying bond were assigned,” &c., to plaintiff.

Tlie statute requires “a written notice of the proposed judgment or action setting forth the court in which it is proposed to enter such judgment or bring such action, the names of the parties to such bond and to such judgment or action, the book and page of the record of the said mortgage, together with a description of the lands or real estate described therein.”

The notice states who executed the mortgage and states that the mortgage and accompanying bond were assigned to plaintiff. This, it seems to us, is sufficient to comply with the requirements of the statute. There was notice of the parties to be sued for a deficiency, and notice of the persons who executed the mortgage and accompanying bond, and notice of all of the other matters required by statute. Gerstley v. Best, 151 Atl. Rep. 395.

This being the only ground of attack, and there being no merit in it, the judgment under review will be affirmed.


author: Pee Ctteiam.

text:
    FRANK LAYTON, PLAINTIFF-RESPONDENT, v. PENNSYLVANIA RAILROAD COMPANY, DEFENDANT-APPELLANT. ALBERT HALL, PLAINTIFF-RESPONDENT, v. PENNSYLVANIA RAILROAD COMPANY, DEFENDANT-APPELLANT. MOLLIE ZELITCH, ADMINISTRATRIX, PLAINTIFF-RESPONDENT, v. PENNSYLVANIA RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Submitted October 17, 1930
    Decided June 9, 1931.
    Before Justices Daly and Donges.
    Eor the appellant, Starr, Summerill <& Lloyd.

    Eor the respondents, Frank F. Neutze and Joseph Varbalow.

   Pee Ctteiam.

These are appeals from judgments for the plaintiffs in three actions tried together in the Camden County Court of Common Pleas. The cases arise out of an accident at a grade crossing on Thirty-sixth street Camden, at four A. M. on June 18th, 1928. A truck owned by the plaintiff Prank Layton, driven by the plaintiff Albert Hall, was struck by a train of the defendant, damaging the truck, injuring Hall and killing a passenger in the truck, Arnold Miller, for whose death suit is brought by the third plaintiff, Mollie Zelitch, administratrix of his estate. No complaint is made concerning the bringing of suit by Mollie Zelitch as general administratrix rather than as administratrix ad prosequendum.

The trials resulted in verdicts for all the plaintiffs. Buies to show cause were allowed and discharged, after argument, by the trial judge. The eases are here upon exceptions reserved in the rules to show cause.

The contention of the plaintiffs was that the warning bell at the crossing was not ringing; that no signal by bell or whistle was given of the train’s approach; and that the headlight on the train was not properly lighted. The evidence was conflicting. The defendant contended that the plaintiffs were guilty of contributory negligence. Pour points are argued on this appeal, all directed to the charge of the trial judge.

The first point is that the trial judge refused to charge defendant’s first request, which was as follows:

“1. Plaintiffs, on approaching the railroad were required to use their senses, both of hearing and of sight, effectively. That is to say to look and to observe that which was in sight, and to listen and hear that which was within hearing, and if plaintiffs failed in the instant ease to do this, then you verdict should be for the defendant.”

This request was not charged in the language of the request. Nor was the court required to so charge. Geyer v. Public Service Railway Co., 98 N. J. L. 470. The court charged as to the duty of the driver to make investigation, and put the burden on the plaintiffs to establish defendant’s negligence by the greater weight of evidence, and likewise charged “the plaintiff must establish that, and then that the plaintiff must himself be free of contributory negligence,” thus putting the burden on plaintiff to exculpate himself of the charge of negligence.

The request as framed placed upon the invitee of the driver the duty of using the same degree of care as was imposed by law upon the driver of the truck. It has been held that a failure of an invitee to make observations for the approach of a train is not necessarily negligent. Mittelsdorfer v. West Jersey and Seashore Railroad Co., 77 N. J. L. 698. What the invitee was required to do was to do such things as one so situated would do in the exercise of reasonable care to avoid the collision. Schroeder v. Public Service, 118 Atl. Rep. 337. The request in question imposed a greater duty upon the decedent than might reasonably be'required of him under the circumstances.

The second point urged for reversal is the failure of the trial judge to charge defendant’s third request to charge, in the following language:

“3. Because I have charged you on the question of damages it does not mean that you should find a verdict for the plaintiffs, but you must determine first that the plaintiffs have borne the burden of proof showing the defendant to have been guilty of negligence, and you must further find that the plaintiffs were in no way guilty of any act or omission which helped to bring about, the accident, and unless you do find the accident was caused through the sole negligence of the defendant, then ycmr verdict should be one of no cause of action.”

This request was properly refused because it contained a statement that decedent’s plaintiff could not recover unless the collision occurred solely by reason of defendant’s negligence. This is not the law of the case. If decedent was an invitee and was free of negligence under the circumstances, and the defendant was guilty of negligence, decedent’s plaintiff would be entitled to recover, notwithstanding the negligonce of the driver. Mittlesdorfer v. West Jersey and Seashore Railroad Co., supra.

The third point urged is that it was error to admit testimony tending to show that, although it was dark, the engine was running without a headlight. In view of the insistence of defendant that plaintiffs were guilty of negligence in failing to see the approaching engine, it was proper to show all of the conditions present which may have relation to such failure to observe the approach of the engine.

The fourth ground of appeal is directed to the use by the trial judge in his charge of the word “heirs” instead “of next of kin,” in speaking of the persons to be compensated.

The exception taken did not point out to the court the precise objection to the charge. It was in the following language: “May I have an exception to that portion of the charge in which your honor charged that the damage to which the plaintiff Zelitch would be entitled, or rather where you said that his heirs are entitled to, and the balance of that.” The only objectionable language used in the whole portion of the charge referred to was the inadvertent use of the word “heirs” instead of “next of kin.” The exception noted did not bring this to the attention of the trial judge or he might have corrected the slip. In Mittlesdorfer v. West Jersey and Seashore Railroad Co., 11 N. J. L. 702, it was said: “The doctrine is founded upon the inflexible rule that the party who objects in the course of a trial must bring his objection to the mind of the trial judge, so that the judge may correct erroneous expressions or explain what would otherwise miselad.”

To the same effect is Goldfarb v. Phillipsburg Traction Co., 103 N. J. L. 690.

In addition, we think that if there was technical error in the use of the word “heirs” in this connection, it did no injury to the defendant, because the trial judge otherwise properly instructed the jury with respect to the rule of damages in case of a verdict for the plaintiff administratrix ad prosequendum. Practice act, Parnph. L. 1912, p. 382, § 27.

The judgments under review will be affirmed.


text:
    IRVING KOHN, PLAINTIFF, v. MARGARET LAZARUS, DEFENDANT.
    Argued May 6, 1931
    Decided June 11, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the rule, Alfred Brenner.

    Contra, Abraham Levitan.

   Pee Cueiam.

This is an application to open a judgment entered upon a verdict rendered in a trial of an issue in the absence of the defendant and her attorney.

It is before us upon a rule to show cause allowed by a justice of this court and the plaintiff below asserts that it is not property here because, the issue being one joined in the Supreme Court, and referred to the Circuit for trial and having under such reference been heard by a Circuit Court judge the application should have been made to him for such rule, and further that such rule was not allowed within six days after verdict rendered as required by the rules of this court.

We are of the opinion that these objections are based upon a misconception of the grounds of the application. This is not a rule to show cause why a new trial should be granted.

As far as the defendant is concerned she did not have her day in court. She asserts that her answer sets up a legal defense which she did not, but in good conscience should have had the opportunity, to present. She, therefore, asks that the judgment entered against her be opened and set aside to the end that she may have her day and present her defense.

The ordinary rule to show cause for new trial presents no such ground or reason, nor can it.

The matter could have been brought on upon notice but we are unable to see any difference between that method and the one here employed. The effect and result is the same and the plaintiff is in nowise disadvantaged.

Upon the merits we conclude that the rule should be made absolute and that the judgment should be opened and that there should be a trial of the issue at Circuit in which the defendant shall have the opportunity to present and establish, if she can, the defense set up by her answer.

Having reached this result, the stipulation of counsel, made at the time of the oral argument, will become effective, and the execution issued and levy made thereunder will be set aside and vacated upon condition that the defendant enter into a surety company bond to the plaintiff in the sum of $13,000, conditioned for the payment by the defendant to the plaintiff of any judgment and costs that may result from such trial; such bond to be approved as to form, conditions and sufficiency by Charles E. Hendrickson, Esquire, a commissioner of this court.

An order may be taken in accord therewith.


text:
    IN THE MATTER OF THE ELECTION OF DIRECTORS OF P. LORILLARD COMPANY.
    Argued May 6, 1931
    Decided June 12, 1931.
    Before Justices Campbell, Lloyd and Bodine.
    Eor the motion, Merritt Lane and Sheldon Pitney.

    Contra, McCarter & English.

   Pee Cueiam.

The proceeding is under section 42 of the Corporation act and was initiated by a rule to show cause granted by Mr. Justice Campbell on March 28th, 1931, and returnable at the opening of the present, May term, of this court.

The proceeding before us is not in furtherance or prosecution of such rule to show cause but, on the contrary, a,n attack upon it as a proper proceeding and a demand for its discharge.

The Lorillard company has noticed the holders of the rule of an application for the discharge thereof upon three grounds—■

1. That the rule is not authorized under the Corporation act respecting the matter sought to be reviewed.

2. Because the proceedings has not been pursued with reasonable diligence; and

3. The proceeding is without merit, in fact.

We feel constrained not to pass upon either the first or third grounds except to remark that as to the first we see no legal impropriety in the procedure as to the third, although presently not fully before us, at least a serious question is presented.

As to the second ground we are not in doubt.

A question of this character should at all times be brought to a conclusion with all reasonable expedition and dispatch so that corporate affairs of the company involved will not be interrupted and placed in a state of suspense and uncertainty.

The court judicially takes notice of the excitment in, and suspense of, business activities to the extent that such conditions now existing are more readily, and easily, excited to a point of injury than under normal business conditions.

We are quite unable to find any reason, and particularly a legally excusable one, why the holders of this rule should not have placed themselves in a position, from the time they obtained it, March 28th, 1931, until the opening of this term, May 5th, 1931, when it was returnable, to present to this court the meritorious question involved, if there was one.

We are unable to find that anything approaching due diligence has been shown, and we conclude that the rule to show cause must be dismissed, with costs.


author: Brown, J.

text:
    Hudson County Circuit Court.
    RUBBER AND CELLULOID PRODUCTS COMPANY, A CORPORATION, TRADING AS RUBBERSET COMPANY, PLAINTIFF, v. HERMAN SOBEL, DEFENDANT.
    Decided June 9, 1931.
    Eor the plaintiff, Insley, Vreeland & Deckers.

    Eor the defendant and pro se, Joseph M. Schoenberg.

   Brown, J.

The plaintiff obtained a rule directed to the defendant and his attorney to show cause “why they and each of them should not be held in contempt of court for the nonpayment of * * * fees due to an officer of this court.” The question presented for determination arose out of an action at law brought by the plaintiff against the defendant to recover money alleged to be due for the sale of merchandise. The defendant denied the debt and counter-claimed for an amount larger than claimed by the plaintiff. The issues being matters of accounting were referred to a referee who reported in favor of the plaintiff and against the defendant. The accounts being- involved and numerous required several days to take the testimony and as a result a stenographer’s bill of $122 was incurred and also referee’s allowanees in the sum of $150. The order of reference provided that the costs of reference would abide the determination of the suit. The referee’s report was confirmed and the defendant was ordered to pay the stenographer’s and referee’s fees. Upon judgment being entered the defendant was adjudged a bankrupt and refused to pay the fees and costs incurred in the hearings before the referee. Upon the argument of the rule to show cause the plaintiff now seeks to hold not only the defendant in contempt of court for the non-payment of the fees in question but also the attorney of the defendant.

The order of reference was entered in accordance with section 157 of the Practice act (3 Comp. Stat. 1910, p. 4103), which provides:

“The court or justice referring the action shall by the rule make just allowance to the referee for his services to be paid in the manner and by the party in said rule directed.”

Section 10, Pamph. L. 1911, ch. 366, p. 761, provides for disbursements to be included in bills of costs, among other things, as follows:

“A party to whom costs are awarded or allowed by law in an action, motion or other proceeding, is entitled to include in his bill of costs his necessary disbursements, as follows:

“The legal fees of witnesses, referees, commissioners and other officers;

“The fees for taking depositions as provided by law;

“Such other reasonable and necessary expenses as are taxable according to the course and practice of the court or by express provision of law.”

On the argument of the rule the reasonableness of the fees of the master and stenographer were not questioned nor is any point made of the fact that they were included as part of the taxed costs. The sole purpose of the rule was to hold the defendant and his attorney in contempt for the nonpayment of those fees.

The plaintiff relies chiefly upon Rule No. 205 of the Supreme Court to hold the defendant’s attorney of record responsible for the fees. This rule provides:

“The attorney of record in every cause in this court respectively shall be answerable to the officer thereof for all lawful fees.”

Under this rule the attorney for a party in a suit is rendered responsible for fees that are commonly known as filing fees and costs incurred with the clerk of the court for the filing of papers by an attorney on behalf of his client and does not include costs of the nature of those in dispute.

Another reason why the attorney for the defendant cannot be held in contempt for the failure of his client to pay the costs referred to is the fact that the attorney has not been ordered by the court to pay the costs and if the attorney were so ordered it is beyond the power of the court to hold him for contempt for the reason that article 1 of the state constitution, paragraph Vi, forbids imprisonment of any person for a debt in any action or in any judgment founded on contract except in cases of fraud. This constitutional protection inures to the benefit of an attorney as well as his client.

In the case of Aspinwall v. Aspinwall, 53 N. J. Eq. 684, it was held that where costs are directed to be paid by an interlocutory order, which cannot be enforced by execution, the payment may be compelled by attachment for contempt; but where they are awarded as an incident to the final decree in the cause, their payment can only be enforced by those methods which the law designates for the enforcement of the decree itself. Also, in the case of Ritter v. Kunkle, 39 N. J. L. 618, it was held that where there is an order or rule to pay costs or money, which cannot be enforced by execution, a writ of attachment may issue; but where costs are allowed by an order of the court, as an incident to a common law judgment, the ordinary process of execution must be used for collection.

In the instant case the costs in dispute were allowed as an incident of the judgment obtained and falls clearly within the rule of the cases last cited; consequently, it follows that the rule to show cause should be discharged as against the defendant and his attorney.


author: Melnikee, J.

text:
    Bayonne District Court.
    E. W. HAMLIN, PLAINTIFF, v. WILLIAM COPPEL, DEFENDANT.
    For the plaintiff, Feinberg & Feinberg.

    For the defendant, Kwalick & Toker.

   Melnikee, J.

In this case, the summons dated May 4th, 1931, was served on the defendant on the same day. On its face it was returnable on April 30th—four days before it was served. The back of the summons is endorsed in the usual way with the name of the court, the title of the cause, the amount of the claim, costs, &c., and the words “Eeturnable May 14th, 1931.”

The defendant appeared specially by counsel on May 14th and moved to quash the summons on the ground that it was served after the return day named therein. The plaintiff moved to amend the summons by changing the return day from April 30th to May 14th to conform with the date on the endorsement.

The question presented on these cross-motions is whether the defendant, having been actually served, the court has the power to amend the summons, so as to make the return day on the face of the summons conform to the date endorsed on the back thereof. It is urged that the motion to amend be granted because the defendant had actual notice of the true return day of the summons, even though the face of the summons explicitly directed him to appear on a date prior to the date of service.

In the absence of the endorsement on the back of the summons, there could be little doubt that such service was defective. A summons commanding a defendant to appear on an impossible date is no summons at all and is absolutely void and of no effect. If the defendant had failed to appear altogether and judgment had been entered against him, it would on application have been vacated. Bradley v. Hall, 30 N. J. L. 122.

The endorsement cannot avail the plaintiff as it has been held that the endorsement of a return day on a writ is no part of its command. Gondas v. Gondas, 99 N. J. Eq. 473.

Furthermore, the plaintiff is confronted with this additional difficulty. If the return of the sergeant-at-arms that service was made by “reading” the summons to the defendant and delivering a copy to him is correct, then manifestly the defendant was told to áppear on April 30th, which is, of course, an absurdity. If the summons was not read to the defendant, as the statute requires, then the defendant was not properly served, and it cannot fairly be said in the absence of proof to the contrary, that he was apprised of the true return date.

Nor does the appearance of counsel for the defendant specially on this motion help the plaintiff’s situation. Such appearance puts the plaintiff in no better position than he would have been in if there had been no appearance at all for the defendant. In such a case, if a judgment had been entered against him, the court would have been obliged to vacate it. A special appearance on a motion to quash* cannot improve the plaintiff’s position.

The defect seems to be one beyond the power of the court to correct by amendment. The summons will, therefore, be quashed.


author: Pee Curiam.

text:
    DANIEL FENCHEL, PLAINTIFF-APPELLEE, v. STANISLAW WOJTOWICZ, DEFENDANT-APPELLANT.
    Argued May 5, 1931
    Decided June 16, 1931.
    Before Justices Lloyd, Campbell and Bodine.
    For the defendant-appellant, Seclow & Nessanbaum.

    For the plaintiff-appellee, I. Faerber Goldenhorn.

   Pee Curiam.

The appeal in this case brings up a judgment of the Second District Court of Jersey City in favor of the plaintiff in the sum of $500.

Plaintiff, a real estate broker, sued to recover commissions on the sale of defendant’s property at No. 561 Avenue A, Bayonne. There was no contract in writing and plaintiff’s recovery can only be justified under the provisions of chapter 273, Pamph. L. 1918.

The proofs indicate that on March 26th, 1928, a conversation took place between the parties respecting the sale of the premises referred to. The plaintiff prepared a written notice dated March 31st, 1928, which purports to conform with the statute, and procured its service upon the defendant, who admitted receipt thereof, April 2d. This is the only proof on the point; hence, there is no basis for the finding that the notice was served within the statutory period.

The judgment, however, must be reversed, if for no other reason because the proof shows that on March 29th, 1928, before any notice whatever was served, the defendant had entered into a binding contract for the sale of the premises in question.

The Court of Errors and Appeals said in Polow v. Silverman, 105 N. J. L. 426: “The written notice 'to be given by the broker must antedate, in its service, the sale or exchange of the property for, unless that is done, of course, it would be impossible for the owner, after receiving this notice, to repudiate or terminate the oral agreement prior to the actual sale or exchange of the property.”

The judgment below is reversed, with costs.


author: Per Curiam.

text:
    RICHARD D. DONNELLY, PLAINTIFF-RESPONDENT, v. PARAMOUNT ORGANIZATION, INCORPORATED, A CORPORATION, DEFENDANT-APPELLANT.
    Argued May 5, 1931
    Decided June 16, 1931.
    Before Justices Lloyd, Campbell and Bodine.
    For the defendant-appellant, Samuel S. Ferster.

    For the plaintiff-respondent, Alexander T. Scheneh.

   Per Curiam.

The appeal'in this case brings up a judgment of $239.69-entered in the First District Court of Newark in favor of the plaintiff. The error assigned was the direction of a verdict in favor of the plaintiff'after the opening-of counsel for both parties. “The trial judge, in the exercise of sound discretion, may in a proper case direct the verdict. And it is the duty of the court to do so when the facts warrant it, although statutes require issues of fact to be submitted to the jury. Such action does not deprive the party against whom the verdict is directed of his constitutional right to a jury trial, nor is this power in any'way affected by the fact that statutes expressly confer on the parties the right to demur to the evidence.” 38 Cyc. 1563.

The'action was brought to recover the deposit money paid upon an application to purchase a Packard automobile. The application contained the following clause: “This application, with deposit, is made with the understanding that you will send me your usual signed purchase order and that if any feature of such purchase contract be objectionable to me or not according to my understanding, you will upon my written request cancel this application and promptly return to me the above-mentioned deposit.”

The defendant’s attorney stated in his opening that he relied upon the written contract containing 'the above provision. He admitted that no purchase order was sent forward, and that the plaintiff had requested in writing a cancellation. He 'sought to go to the jury on the theory that he could show by parol that the defendant had offered to cancel the application if plaintiff would purchase other goods with the deposit money. This it is to 'be noted was quite apart from tire right of the parties to stand upon the written contract.

The action of the trial judge was proper. The provisions of the written instrument were clear and definite. The defendant had admitted every material fact upon proof of which the plaintiff would be entitled to a verdict. The mere circumstance that the defendant sought to alter the terms of the contract could, in no sense, change the legal results. The learned trial judge merely found that there was no offer to prove any fact or circumstance which might bar plaintiff’s recovery. Baldwin v. Shannon, 43 N. J. L. 596, 602. The suggestion by defendant’s counsel that he would prove an offer to make a new and distinct contract certainly was of no avail in a court of law.

The judgment will be affirmed, with costs.


text:
    JEAN SEVENAIR AND ALBERT SEVENAIR, PLAINTIFFS, v. GRASSELLI CHEMICAL COMPANY ET AL., DEFENDANTS.
    Submitted January 30, 1931
    Decided June 19, 1931.
    Before Justices Case, Daly and Donges.-
    Por the rule, Heine & Laird.

    Contra, Joseph H. Gaudiello.

   Pee Cueiam.

This is defendants’ rule to show cause why the verdicts should not be set aside as excessive. The plaintiff wife has a verdict for $11,000, and plaintiff husband has a verdict for $4,000.

We conclude that the verdict for the plaintiff wife, Jean Sevenair, is excessive.

If plaintiff Jean Sevenair will, within twenty days from the entry of an order hereunder, consent to a reduction of her verdict'to $9,000, the present rule will be discharged, otherwise the rule will be made absolute as to her, and a new trial granted as to damages only. The rule to show cause will be' discharged as to plaintiff Albert Sevenair.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HARRY WILLIAMS ET AL., PLAINTIFFS IN ERROR,
    Argued January 22, 1931
    Decided June 19, 1931.
    Before Justices Case, Daly and Donges.
    For the plaintiffs in error, Braelow & Tepper.

    For the defendant in error, Louis A. Bepetto, prosecutor of the pleas.
   Per Curiam.

This case is before this court on a writ of error sued out by plaintiffs in error to review their conviction in the Atlantic County Court of Quarter Sessions of the charge of atrocious assault and battery.

On October 22d, 1930, at seven o’clock in the morning, one Jack Greenberger was assaulted and badly beaten at the corner of New Jersey avenue and Oriental avenue in Atlantic City. Two men did the beating and a third urged them on from across the street and held in his hand a revolver. After the assault Greenberger pursued the two men, saw them enter a house, and caused their arrest. The third man with the gun was followed by a passerby, one Minniek, and arrested after he entered the Breakers Hotel. All three were identified by Minnick and G-reenberger.

Points I and I-A. These points have to do with the refusal of the trial judge to grant an adjournment of the trial at the request of the defendants. The assault took place as stated on October 22d. Plaintiffs in error were arrested the same day, arraigned on the 23d, indicted on the 24th, and October 30th was set for the trial. On behalf of all three defendants, application was made for a writ of habeas corpus in an effort to obtain a reduction of bail. Argument on the writ was heard October 28th. When the defendants appeared for trial on the 30th, Williams was represented by separate counsel who claims to have been retained the night before, the 29th. It is, therefore, urged that plaintiffs in error were prejudiced because they had no adequate opportunity to prepare their defense and that the refusal of the court to grant an adjournment was an abuse of discretion.

With respect to Cohen and Spinelli, they do not point out in what way they were prejudiced. There is no claim that they could with more time have presented any evidence of any kind. They did not take the stand and relied entirely on the alleged weakness of the state’s case.

As to Williams it is claimed that a woman with whom he was registered at the Breakers Hotel (later claimed to be his wife) was a material witness and necessary to his defense. Counsel refused to state in what way her testimony was material on the ground that he' did not care to disclose his defense. Williams on cross-examination said he had tried once during the intervening week to get in touch with her. He did not state just what his effort was. There is nothing more than a statement of counsel to show that she could be located and brought into the jurisdiction if an adjournment were granted.

With no more of a showing than this, it cannot be said that there was an abuse of discretion.

II. It is urged that the trial court erred in its charge to the jury in asserting as a proven fact an essential element of the state’s case, the existence of which should have been left to the jury to find. This concerns the following statement:

“By the testimony that has been produced by the state, they have shown that two of these defendants were on one side of the street, and the other defendant, Williams, was on the other side of the street.”

It is contended that this was equivalent to a direction of a verdict of guilty. While the choice of language was perhaps not the happiest, still the interpretation contended for is not the natural one to be placed on the charge. It seems that it was merely comment in the nature of a review of the state’s version of the occurrence. In the next paragraph the court said: “In the case now before you, if these three defendants were there aiding and abetting each other, &c.” He further •said the jury might find the defendants not guilty. There was no harm in the portion of the charge complained of.

III. This point has to do with what the court said about reasonabhUdoubt, as follows:

“The state is required under our system of the law to prove the guilt of a defendant beyond a reasonable doubt, and that .simply means that the state must satisfy you to a point where 3'ou have an abiding conviction to a moral certainty of the guilt of the defendant. If the state has so satisfied you, it becomes your duty, of course, to find the defendants guilty. * * * On the other hand, if there exists in your minds a reasonable doubt, that is, a doubt existing for a reason, as to whether or not the defendants are guilty as charged m the indictment, the law requires you to resolve such reasonable doubt, if it exists, in your minds, in favor of the defendants and acquit them.”

The argument is that this is tantamount to a direction to ignore the evidence of the defense in determining the absence of a reasonable doubt. This construction of the meaning of the language is strained and entirely unwarranted. When the court said that the state must satisfy the jury beyond a reasonable doubt, he meant of course satisfy them despite the evidence of the defense, State v. Bailey, 3 N. J. Mis. R. 210; 127 Atl. Rep. 589.

IY. This point urges that the. trial court erroneously defined atrocious assault and batterjg and failed to define all the elements of an atrocious assault and battery.

The court said: “Atrocious assault and battery is the maiming or wounding of the body of one person by another.”

This is correct as far as it goes. The complaint seems to be that the court did not charge with reference to a simple assault, assault and battery, and atrocious assault and battery. However, no request was made in this respect. There was no injury done to defendants, in any event. The offense committed in this case was, as clearly shown by the evidence, an atrocious assault and battery. There is no merit in this point.

Y. The next point is that the trial court erred in its charge to the jury in stating that the defendants might be found guilty of an assault or an atrocious -assault and battery without charging that they might have been found guilty of assault and battery. No request was made to charge on this point. In fact, counsel took exception to the charge that the defendants could be convicted of simple assault, thereby indicating a desire to stand on the charge of atrocious assault and battery alone. The assault was an atrocious one, consisting of maiming and wounding with a cold chisel.

VI. It is urged that the trial court erred in its refusal to permit counsel for Williams to ask one of the state’s witnesses on cross-examination questions tending to show that this particular state’s witness had a motive for himself committing the crime charged. The question was “are you friendly towards organized labor?” This was clearly improper cross-examination.

VII. It is further urged that the trial court erred in charging the jury that they could convict one or all three of these defendants. The argument of the plaintiffs in error on this point is not very clear, but the complaint seems to be that the court did not go on and say that the jury could acquit one or more of the accused. This idea is included in the statement made and the contention is entirely without merit.

VIII. Plaintiffs in error urge that the verdict was against the weight of the evidence. The verdict was amply supported by the evidence.

Upon the whole case it appears that defendants were not prejudiced in the submission of their defense upon the merits, and that they had a trial in which no harmful error was committed by the trial judge.

The judgments of conviction are affirmed.


author: Pee Cukiam.

text:
    RAGNA SCHONEMAN, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. EMILY MULLER AND GEORGE STTLLSON, DEFENDANTS.
    Submitted January 30, 1931
    Decided June 19, 1931.
    Before Justices Case, Daly and Donges.
    Eor the rule, McDermott, Enright & Carpenter.

    Contra, Charles A. Rooney.

   Pee Cukiam.

This case is before this court on defendants’ rule to show cause why the verdict in favor of plaintiff and against defendants for $12,500 should not be set aside on'the grounds' (1) that it is against the weight of the evidence and (2) that it is excessive. The suit arose out of a collision between a motorcycle driven by the plaintiff’s decedent and an automobile owned by defendant Emily Muller and driven by defendant George Stillson.

The accident occurred at a sharp curve on Palisade avenue in the borough of Cliffside. The automobile of defendant was traveling south down a steep grade. The curve was to its left. The motorcycle was going north and the curve was to its right. There is a white line painted in the street sixteen feet from the easterly side and twenty-four feet from the westerly side. There was conflicting testimony as to whether it was the automobile or the motorcycle that was being driven on the wrong side of the line at the time of the collision.

We conclude that the verdict is not so clearly against the weight of the evidence upon the question of negligence as to-require it to he set aside for that reason.

We are of the opinion that, in view of the testimony on the question of damages, the verdict is excessive. Therefore, if plaintiff will, within twenty days after the entry of an order hereunder, consent to a reduction of her verdict to $7,000, the rule will be discharged, otherwise the rule will be made absolute and a venire de novo awarded.


author: Pee Cueiam.;

text:
    ALBERT SHOTKIN, PLAINTIFF-RESPONDENT, v. ARROW SANITARY LAUNDRY, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted January 30, 1931
    Decided June 19, 1931.
    Before Justices Case, Daly and ’Donges.
    For the appellant, Thomas Brunetto.

    For the respondent, Corn & Silverman.

   Pee Cueiam.;

This is an appeal from a judgment of the District Court of the Second Judicial District of Essex county in favor of the plaintiff, against the defendant,'in an action to recover-for damages to plaintiff’s taxicab sustained in a collision with the defendant’s truck. The accident occurred at the intersection of Sixth avenue and'Eoseville avenue in the city of Newark. Plaintiff was traveling north on Eoseville avenue approaching Sixth avenue. When he arrived at the intersection he says he saw defendant’s truck'one hundred to one hundred and fifty feet away coming south on Eoseville avenue. Plaintiff signaled for a left-hand turn and proceeded to turn left into Sixth avenue. Before he cleared the intersection he was struck by the truck. When he was struck his front wheels had reached the westerly curb line, lie was going slowly. The street was slippery; there was snow and ice on the ground. Plaintiff had skid chains on his car. Defendant’s witness claimed that plaintiff swerved to avoid a collision with another car and‘ran into the truck.

Point 1 is that the court erred in denying a nonsuit because there was no evidence of negligence and because plaintiff was guilty 'of contributory negligence. The testimony that the truck was one hundred and fifty feet away when plaintiff started to turn presents some evidence of negligence and will support the trial judge’s finding of fact on the question. Contributory negligence was also a question of fact.

Point 2 deals with four grounds of reversal, the purport of' which seems to be that the court erred in finding for the plaintiff instead of for the defendant. A question of fact was presented by the evidence and the trial court will not be reversed when there is any evidence to support the finding.

In addition, defendant had a rule for new trial, on which he argued the question of the weight of the evidence. He is precluded from raising questions on appeal that relate to motions for nonsuit, &c. Exceptions were reserved, but no trial errors are urged on this appeal.

Point 3 assigns error in the action of the District Court judge in not making absolute the rule to show cause allowed defendant. The consideration of the rule to show cause 'was a discretionary matter and not appealable. There is no abuse of discretion shown.

The judgment is affirmed, with costs.


author: Pee Oubiam.

text:
    ELY MEISLER, ADMINISTRATOR AD PROSEQUENDUM, PLAINTIFF-APPELLANT, v. RAIKEN MONUMENT WORKS, INCORPORATED, DEFENDANT-RESPONDENT.
    Submitted January 30, 1931
    Decided June 19, 1931.
    Before Justices Case, Daly and Donges.
    For the appellant, Herman B. J. Weclcstein.

    For the respondent, Schneider & Schneider.

   Pee Oubiam.

This is an appeal from a judgment of the Essex County Circuit Court in favor of the defendant in an action under the Death act for damages resulting from the alleged 'wrongful killing of Benjamin Meisler, seventeen years of age, by collision with a truck owned by defendant and operated by its servant. Decedent was crossing Frelinghuysen avenue, Newark, at or near the intersection of Emerson Place. He passed in front of a car driven by one Feltman and was struck by defendant’s truck which was passing Feltman’s car and going in the same direction.

Plaintiff-appellant argues eight grounds of appeal.

1. That it is error in instructing the jury to unduly emphasize issues, theories or defenses, whether by repetition or by singling them out and making them unduly prominent. The language complained of is as follows:

“You may find, in considering the testimony of the plaintiff, that almost the entire case of the plaintiff depends on what credence you are going to place on the testimony of this man, Eeltman, how much of his story you will believe and how much you will ignore.”

This statement was entirely true and furthermore it is not pointed out in what respect it was harmful to the plaintiff. The court did not express any doubt as to the truthfulness of the witness and clearly left it to the jury to pass upon the credibility of his testimony. The exception taken was in this language: “Also to the statement made by your honor that almost all the testimony of the plaintiff depends on the witness Eeltman.” The court did not say this. He said: “You may find * * * that almost the entire case depends, &c.” This was a correct statement, and did not exclude consideration of the other testimony. Eeltman was the only witness to the collision who testified.

2. This point deals with what the court said with respect to the equal rights of members of the public to use the highway and the correlative duty to respect the rights of others. The complaint seems to be that the court should have charged that a pedestrian has a superior right at a crosswalk. However, plaintiff’s own witness, Eeltman, said that the decedent was off the crosswalk when struck. There was no error in what the court said.

3. That it is the duty of the court to charge only what is now the law, and not what was the law in the past. The court said that at common law there was no remedy for wrongful death. There could not possibly be any harm to plaintiff in this because the court .went on to state the right of plaintiff to recover and submitted the ease to the jury under the Death act.

4. That the court erred in commenting that there was no testimony as to future expectation when, as a matter of fact, the testimony contained full facts as to this subject. This deals with the matter of damages and did not harm plaintiff because the jury apparently did not reach a consideration of that subject.

5. That the court should have charged plaintiff’s request: “Any action of death for pedestrian from being struck by automobile while crossing street, deceased is presumed to have exercised due care.” The court did charge that the bur-. den of proving contributory negligence was on the defendant, and this sufficiently covered the subject.

6. That the court erred in refusing to charge: “Defendant was under a duty to observe the condition which existed at the crosswalk, and if his view of the crosswalk was obstructed by any other vehicle, he should have had his automobile under such control as to avoid any pedestrian who was about to cross the street at such crosswalk.” This request assumes that the decedent was crossing on the designated crosswalk, but there was testimony to the contrary from plaintiff’s own eye witness. Since there was a conflict upon this point which the jury was free to decide, the request was improperly framed. Eurther, there does not appear to be testimony that, at the place of the accident, the houses are less on the average than one hundred feet apart.

' 7. This point deals with request No. 4 which the court declined to charge. The request had to do with the same subject, namely, the respective rights of a pedestrian and vehicle at an intersection. It is open to the same criticism as the one last considered, that is, it assumes that the plaintiff was crossing on the crosswalk when struck.

8. That the verdict was contrary to the weight of evidence. This raises no legal point and will not be considered.

The judgment will be affirmed, with costs.


text:
    PATRICK TOBIN, PLAINTIFF-RESPONDENT, v. HARRY M. VOGEL, DEFENDANT-APPELLANT.
    Submitted January 30, 1931
    Decided June 19, 1931.
    Before Justices Case, Daly and Donges.
    Por the appellant, E. A. & W. A. Schilling.

    Por the respondent, William, J. McCormack.

   Per Curiam.

This is an appeal from the Orange District Court in a replevin suit in which the plaintiff seeks to recover possession of four horses and damages for the unlawful detention. The writ was served and no bond was given by the plaintiff and possession of the property was not demanded. The case was litigated, the defendant filing a counter-claim, and on the trial the judge, sitting without a jury, gave the plaintiff judgment in the amount of $222.50. Objection is made that there was no evidence to support the judgment of the District 'Court. A reading of the state of case would seem to support the defendant’s claim that the plaintiff had delivered the horses to defendant and had given him a written statement to that effect, marked Exhibit D-1. However, there is testimony that might support the finding of the judge and therefore it cannot be disturbed on that ground.

A more serious objection is that the judge gave a money judgment instead of a judgment for possession, and this seems to be sustained by the state of the case. Under the statute, where the property is not delivered and there is no counter-claim by the defendant and posting of a bond to retain possession, the practice would appear to be to give judgment for possession and not for the value of the property. See section 143 of the District Court act. Section 1ST of the District Court act provides that where the defendant claims and gives bond and retains possession, the value of the property shall be ascertained, as is the ease under section 10 of the Replevin act.

We conclude, therefore, that the judgment is improperly entered and should be reversed.


author: Pee Ctjbiam.

text:
    JOHN HUSS, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT.
    Submitted January 30, 1931
    Decided June 19, 1931.
    Before Justices Case, Daly and Donges.
    For the rule, Francis A. Gordon and William F. Holmwood.

      Contra, Henry H. Fryling.

   Pee Ctjbiam.

This is plaintiff’s rule to show cause why a new trial should not be granted on the ground that the verdict is inadequate. The verdict was in favor of plaintiff and against the defendant in the sum of $600.

We think it cannot be said, in view of all of the testimony, that the verdict is inadequate. The jury might very well have declined to accept plaintiff’s testimony as to the extent of his loss of earnings. The injuries were not serious.

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


text:
    ANNA E. JORDAN, PLAINTIFF-APPELLEE, v. JOSEPH E. BERNSTEIN, DEFENDANT-APPELLANT.
    Submitted January 30, 1931
    Decided June 19, 1931.
    Before Justices Case, Daly and Donges.
    Eor the appellant, G. Earl Brugler and Victor G. L. Hanson.

    Eor the appellee, Sigmund Auerbach.

   Pee Cueiam.

This appeal brings up a judgment of the Second District Court of Jersey City, in favor of the plaintiff against the defendant in a suit brought to recover damages for injuries sustained by the giving away of a porch and railing, precipitating plaintiff to the ground. The state of demand alleges that the defendant was the owner of the premises and that the plaintiff was an invitee; that the defendant so carelessly and negligently constructed and maintained the stoop, stairs and railing that the railing gave away and fell off, causing plaintiff to be thrown to the ground and injured.

It appears that the premises are a one-story dwelling house occupied by a single family; that plaintiff was a domestic in the service of the tenant, Moss; that about two months prior to the occurrence “after certain repairs or painting work to the floors and walls had been done in the kitchen in the basement by the defendant’s agent, Mrs. Moss, in the presence of the plaintiff, notified the defendant’s agent, who had supervised and arranged for the aforesaid repairs or painting work in the kitchen, that the steps, porch and railing around same were in a defective and dangerous condition. The defendant’s agent agreed to have the steps, porch and railing repaired and placecl in a proper and safe condition.”

In view of the fact that there was no obligation on the landlord in the circumstances shown to make repairs, to make him liable on the theory of an assumption of such duty, it must appear either that he undertook the repairs and did them in a faulty manner, or that he specifically agreed to make the repairs and failed to do so. In this case, unless the person to whom the statement alleged to have been made by Mrs. Moss was made, was the agent for the purpose of the owner, he would not be bound by it. It does not appear who this person was, or that it was ever communicated to the owner, or that the owner had knowledge of the condition complained of, or was under any duty to know about it. The mere fact that the owner may have made repairs on one occasion would not be sufficient to charge him with the duty of making other repairs. Bolitho v. Mintz, 106 N. J. L. 449.

The judgment is reversed, with costs.


author: Pek Cuuiam.

text:
    FRANK BARTKOWSKI, ADMINISTRATOR AD PROSEQUENDUM, ETC., PLAINTIFF, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, DEFENDANT.
    Submitted January 30, 1931
    Decided June 22, 1931.
    Before Justices Case, Daly and Donges.
    Por the rule, Ilenry II. Fryling.

      Gontra, Gongleton, Stallman & Hoover.

   Pek Cuuiam.

This is defendant’s rule to show cause in an action for recovery by plaintiff from defendant for two deaths caused by the negligence of defendant. Defendant submitted no testimony at the trial, and now urges as the only ground for setting the plaintiff’s verdicts aside, that they are excessive.

The suits were brought by Prank Bartkowski, as administrator ad prosequendum of John Bartkowski, deceased; by the same plaintiff as administrator ad prosequendum of Joseph Bartkowski, deceased; and by the same plaintiff as general administrator of Joseph Bartkowski, deecased. The deceased, children of plaintiff, were killed by coming into contact with a high tension wire owned and controlled by defendant, John Bartkowski was killed outright and Joseph Bartkowski died after about eleven weeks’ confinement in a hospital.

WTien the jury first returned to deliver verdicts, they found the defendant guilty of “gross negligence” and rendered a lump sum verdict in the three cases of $30,000. Upon the trial judge commenting that the verdict was generous, but that it was necessary to separate it and apportion it to the plaintiff in his various capacities, the jury retired and returned with verdicts aggregating $40,000, as follows: for the plaintiff as administrator ad prosequendum of Joseph, $18,000; as administrator ad prosequendum of John, $12,000, and as general administrator of Joseph, $10,000.

Joseph was fourteen years of age and in his second year at high school; John was thirteen years of age and in the seventh grade. Joseph was severely burned and his arm was amputated in an effort to save his life. The medical testimony was that he did not suffer much pain as he was kept constantly under opiates.

The action of the jury in first finding $30,000 as an appropriate amount, which amount in our view was grossly excessive, and then, without any reason, increasing the awards to an aggregate of $40,000, displays such evidence of a lack of considered judgment in assessing damages as to require a new trial upon this question. It is apparent that the jury did not act upon the instructions of the court to assess compensatory damages, but was moved by a desire to visit punishment upon defendant.

The rule to show cause will be made absolute and a new trial granted as to damages only.


author: Pee Cüeiam.

text:
    JAMES MANLEY, PLAINTIFF, v. JOHN KAUFFMAN, DEFENDANT.
    Submitted January 30, 1931
    Decided June 19, 1931.
    Before Justices Case, Daly and Donges.
    Eor the rule, Freeman Woodbridge.

      Contra, J. Jerome Kaplon.

   Pee Cüeiam.

This is a plaintiff’s rule to show cause why a verdict should not be set aside, as inadequate, and a new trial awarded as to damages. The suit arose out of a collision between cars owned and driven by the parties to the suit near Somerville on November 20th, 1929. The plaintiff sought to recover for damage to his ear, loss of earnings, medical expenses and pain and suffering. The defendant counter-claimed for damage to and loss of use o£ his car. The jury found for the plaintiff in the sum of $350 and against defendant on the counterclaim.

Plaintiff worked by day as a guard in a bank and by night as a boxing instructor at Rutgers. He lost no money at the bank but ivas unable to work at the college for seven weeks. Por this work he was paid $45 per week. This would amount to $315. The repairs to his car cost him $446.40. He paid a doctor bill of $24. This makes a total loss of $787.40, in addition to which he was entitled to be compensated for the pain and suffering endured.

The verdict of $350 is clearly inadequate, and the rule to show cause is made absolute and a new trial awarded as to damages.


text:
    EMMA C. APGAR, ADMINISTRATRIX, ETC., PLAINTIFF-APPELLANT, v. ERWIN S. COOLEY, DEFENDANT-RESPONDENT.
    Submitted January 20, 1931
    Decided June 19, 1931.
    Before Justices Case, Daly and Donges.
    Eor the appellant, Earl R. Merrill.

    Eor the respondent, Charles W. Weelcs.

   Pee Cukiam.

This appeal brings up a judgment of nonsuit entered in the Plainfield District Court in a suit by the plaintiff administratrix to recover damages for injuries to the automobile of her decedent. The facts are that the suit was begun and service made, and after several adjournments the case proceeded in the absence of the defendant and judgment was entered for the plaintiff. Thereafter a rule to show cause was allowed and upon the return of that rule, upon depositions taken, the court entered' an order on September 10th, 1931, in which it was “ordered that said judgment be opened and a new trial held on the 24th day of September, 1930.”

On September 24th, 1930, the parties appeared and the plaintiff objected to the proceeding by which the court had opened the judgment and ordered a new trial, asserting irregularity, and then declined to submit any testimony in support of plaintiff's claim, but asserted that the record theretofore made was before the court. Despite the statement of the judge that the proceeding was a trial de novo, plaintiff declined to submit any evidence and took the position that ail the court had done was to afford the defendant an opportunity to interpose a defense.

In this situation, there being no evidence before the court and the plaintiff’s counsel declining to submit any proofs, a nonsuit was granted on motion.

There was no error in this action. The matter of granting a new trial was in the discretion of the trial judge and it does not appear that there was any abuse of discretion. The order clearly opens the judgment and grants a new trial. This means a trial de novo. Upon the refusal of the plaintiff to submit proof, there was no proof to support plaintiff’s claim and the trial judge was clearly required to nonsuit.

The judgment is affirmed, with costs.


text:
    JOHN B. SARTOR ET AL., PLAINTIFFS-APPELLANTS. v. ENGLEWOOD FINANCE COMPANY, DEFENDANT-APPELLEE.
    Submitted January 21, 1931
    Decided June 19, 1931.
    Before Justices Case, Daly and Donges.
    For the appellants, Joseph, B. Siadtmauer.

    For the appellee, Solomon Goldman.

   Pee Cueiam.

This appeal brings np a judgment of the District Court of the Second Judicial District of Bergen county in favor of defendant. Suit was brought by plaintiffs to recover the amount of $256.17, which they had paid to the defendantappellee on account of a promissory note of $300 executed by appellants to the appellee. The suit was based on an alleged violation of section 5 of chapter 49 of the laws of 1914, as amended by chapter 251 of the laws of 1928.

Two points are raised. First, that the statement given to the appellants by the appellee at the time the loan was made did not have printed on its back in the English language a copy of section 5 as amended by chapter 251 of the laws of 1928. This amendment merelj'' added the words “either directly as maker, or indirectly as endorser or guarantor.” In other respects the language is identical with that of the original act of 1914. The trial court held that the printing of the original section 5 was a substantial compliance with the provisions of the act and was sufficient. With this we agree.

Second, that the statement did not show the date when the loan was due as required by the act. The contract does show the date of the loan and the amount thereof, and the amount paj^able each month so that it is readily ascertainable when the whole loan would be due.


text:
    MADELINE BIEN, PLAINTIFF-RESPONDENT, v. JOSEPH MEYERS AND BROWN AND WHITE CAB, INCORPORATED, DEFENDANTS-APPELLANTS.
    Submitted January 30, 1931
    Decided June 19, 1931.

      Before Justices Case, Daly and. Donges.
    For the appellant Joseph Meyers, Lindabury, Depue <& Faulks.

    For the appellant Brown and White Cab Company, Incorporated, Henry H. Fryling and Elmer W. Bomine.

    For the respondent, Donald B. Munsick.

   Pee Cüeiam.

This is an appeal from a judgment of the Essex County Circuit Court. Plaintiff brought suit against Joseph Meyers and Brown and White Cab, Incorporated, and obtained judgment against both defendants. Both appeal and present their appeals in separate briefs.

Plaintiff was a passenger in a taxicab of defendant cab company on February 26th, 1929, in the evening. She was driven to 182 Shephard avenue, Newark, and the driver of the cab stopped same on the left-hand side of the street and discharged plaintiff at a driveway leading to the house. As she stood in the drive paying her fare, an automobile driven by Meyers backed out of the driveway and struck plaintiff, injuring her.

Defendant cab company argues (1) that there was no negligence shown on its part, and (2) that the trial court should have granted a nonsuit in its favor. These questions involve the same matters and can be considered together. The driver of the cab testified that the driveway was the only place he could stop to discharge plaintiff because the rest of the space along the curb was fenced off. When he stopped he saw the car of Meyers forty feet up the drive but it was not moving. Stopping on the left side of the street was probably not sufficient evidence of negligence under the circumstances to take the case to the jury, but it was for the jury to decide whether or not the defendant’s agent was negligent in discharging a passenger, to whom he owed a high degree of care, at a dangerous place such as a driveway, especially when he saw a cai' in the drive and did not call plaintiff’s attention to it. Plaintiff testified she did not see the car until after it struck her. It was a stormy night and was raining hard. The negligence of this defendant was for the jury.

Defendant Meyers also appeals and urges (1) that there should have been a nonsuit in his favor, and (2) that the court erred in the charge. The negligence of Meyers was clearly for the jury. He backed out of the drive without looking for or seeing the taxi. It was for the jury to decide whether under the circumstances he should have seen it. The evidence was that he failed to stop before emerging onto the street. The statute requires him to do this. There is no merit in this point.

The second ground is that there was error in the following portion of the court’s charge:

“A statute in force at that time provided that a person emerging from an alley, driveway or garage, shall stop such vehicle immediately prior to driving upon the sidewalk; but he did not do that.”

The complaint is that this language permitted the jury to infer that mere failure to stop before crossing the sidewalk was the proximate cause of the accident. A reading of the charge does not justify this construction. The court charged upon the evidence and allegation of negligence as to Meyers and merely mentioned this as one of the elements. It was a proper matter for the jury to consider, because failure to obey the traffic law may be evidence of negligence.

The judgment will be affirmed, with costs.


text:
    ROCOO NAPLES, PLAINTIFF, v. STACY-TRENT GARAGE, DEFENDANT.
    Submitted October term, 1930
    Decided June 24, 1931.
    Eor the rule, William Abbotts, Jr.

      Contra, Harry Holier.

    Before Gummere, Chief Justice, and Justices Tremohard and Lloyd.
   Per Curiam.

In this case there was a verdict for the plaintiff in the sum of $8,000 awarded for personal injuries received in a collision between a truck driven by the plaintiff and a truck of the defendant.

The defendant has a rule for new trial and the reasons urged for making the rule absolute are that the damages awarded are excessive in amount, and that there was error in the refusal to charge certain of the defendant’s requests for instruction to the jury.

At the time of the accident plaintiff was sixty years of age, employed in selling and delivering bottled soft drinks. The injuries received were to the back, hip and knee. There was marked pain which in lesser degree still existed at the time of the trial. Since the accident he has been obliged to wear a brace around the body. He has been incapacitated for the employment in which he had been previously engaged, that of handling heavy packages. While before the accident he had been earning from $25 to $40 per week, since the accident lie has been employed part of the time as a watchman at greatly lessened compensation.

It was contended by the defendant that the present condition is due to arthritis and that this was of long standing. That the disease existed was not seriously disputed, but that it was troublesome and disabling was denied. At all events it clearly appeared that before the accident plaintiff was in apparent good health, performing laborious work without difficulty, and that after the accident he was unable to do the same or similar work.

Under the proofs we cannot say that the damages awarded are excessive. Our examination of the requests for instructions and the charge of the court discloses that in so far as the requests were sound presentations of the law they were properly and adequately dealt with in the general charge to the jury. ■

The rule is discharged.


author: Pee. Ouejaji.

text:
    LESTER GROSSMAN, RESPONDENT, v. DAVID NUTKIS, DOING BUSINESS UNDER THE FIRM NAME OF NATIONAL PIANO AND FURNITURE COMPANY, APPELLANT.
    Submitted October term, 1930
    Decided June 24, 1931.
    Before Gummere, Chiee Justice, and Justices Trenchard and Lloyd.
    Eor the appellant, Saul Nemser.

    Eor the respondent, Melvin L. Weisbart (Jacob J. Levy, of counsel).
   Pee. Ouejaji.

This is the defendant’s appeal from a summary judgment entered in the Circuit Court of Hudson county in favor of the plaintiff. The action was by the assignee of W. L. Lincoln, Incorporated, plaintiff, on a judgment obtained in the Supreme Court of New York. The defendant filed an answer denying the truth of the matters set up in the complaint and also filed a counter-claim for damages resulting from an alleged breach of contract. On motion and affidavits the answer and counter-claim were stricken out and judgment entered.

The single ground urged in the appeal is that there was no adequate proof that the plaintiff Grossman held title to the judgment by virtue of an assignment from the plaintiff in the New York judgment. We think the proof on this point were ample. The affidavit of Grossman avers that the judgment was assigned to him on April 5th, 1930, and that the assignment was filed, adding that exemplified copies of the original judgment and assignment would be exhibited to the court on the argument of the motion. These appear to have been presented to the court when the motion was heard. In this situation the answer and counter-claim were properly stricken out.

The judgment is affirmed.


text:
    SARAH R. HIXSON AND EDWARD B. HIXSON, PLAINTIFFS, v. JOHN BURNS AND HELEN BURNS, DEFENDANTS.
    Submitted October term, 1930
    Decided June 24, 1931.

      Before Gummere, Chief Justice, and Justices Teen-chard and Lloyd.
    Eor the rule, Collins <£ Corbin (Edward A. Marlcley, of counsel).
    Contra, Francis A. Gordon.

   Per Curiam.

This was an automobile accident case in which the plaintiff recovered a verdict. The defendant has a rule for new trial, and among other things contends that the court erred in its instructions to the jury. The accident occurred at or near the intersection of Westminster avenue and Malden Terrace, in Elizabeth, as Helen Burns, one of the plaintiffs, was making a left-hand turn from Malden Terrace to Westminster avenue, and the learned trial judge instructed the jury as follows: “If you find that the defendant Helen Burns was about to make a left-hand turn—I think she was about to do that—then also according to the provisions of the Traffic act she was required to proceed beyond the center of the intersection before making the contemplated turn.”

The accident occurred on November 33d, 1938, and at that time chapter 381 of the laws of 1938 (page 761), had modified the old law respecting the duty of one in the positiou of the defendant by enacting—

“1. Except as otherwise provided in this article, the driver of a vehicle intending to turn to the right at an intersection, shall approach such intersection in the lane for traffic nearest to the right hand curb or side of the highway, and in turning shall keep as closely as practicable to the right-hand curb or side of the highway until the turn is completed, and when intending to turn to the left shall approach such intersection in the lane for traffic to the right of and nearest to the center line of the highway, and in turning left shall pass immediately to the left of the center of the intersection, passing as closefy as shall be practicable to the left of the center ot the intersection.”

This modification of the law was apparently overlooked by the learned trial judge. There was proof in the case that the defendant was making the shorter turn as distinguished from the earlier statute which provided that the turn should be on the outer line of the circle, and in this situation the jury may well have found that the turn was in direct violation instead of in strict conformity with the law. Such instruction was obviously harmful.

The rule will be made absolute.


text:
    GENEVIEVE DALEY, BY FRANK DALEY, HER NEXT FRIEND, FRANK DALEY AND CATHERINE DALEY, PLAINTIFFS, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT.
    Submitted October term, 1930
    Decided June 24, 1931.
    Before Cummere, Chief Justice, and Justices Tkenottard and Lloyd.
    For the rule, Henry II. Fryling.

    Contra, Francis A. Gordon.

   Per Curiam.

This is defendant’s rule for new trial, and the reasons for making the rule absolute are that the verdicts are excessive in amount and that certain photographs were improperly received in evidence.

The verdict in favor of the woman plaintiff was for $35,000. her father received an award for $1,000 for expenses, and there was a verdict of $500 for the father and mother for the loss of services.

The plaintiff Genevieve Daley was a passenger in a trolley car of the defendant and was injured as the result of a collision between that car and another car of the same company. The injuries, which at the time seemed comparatively slight, later resulted in serious nervous disturbances, causing pronounced tremors of the head and shoulders and adversely affecting her disposition. The accident happened in July, 1928, and at the trial in February, 1930, no substantial improvement seems to have taken place. Her condition was described medically as a psycho-neurosis and there was strong testimony tending to show that litigation in such cases is a contributing cause to the continuance of this condition; that when the litigation is over the mind is relieved and in most cases a marked change for the better takes place. We cannot of course say that in any individual case such a result would follow, but in view of these proofs and upon a fair consideration of the whole case, we deem the verdict of $35,000 in favor of Genevieve Daley grossly excessive.

We cannot say that the awards in favor of her parents were not justified by the proofs.

The only other point raised is that photographs of the plaintiff were improperly received in evidence. The photographs were taken before the injuries were received and one set of them was offered for the purpose of exhibiting her physical appearance, and the other, taken by herself, as indicating the steadiness of the nerves before the accident occurred. We think the point is without merit.

If the plaintiff Genevieve Daley will remit all above the sum of $20,000, the rule in her case will be discharged; otherwise it will be made absolute. The rule otherwise is dscharged.


author: Lawrence, C. C. J.

text:
    JOSEPH F. STEIN AND MILTON M. STEIN, CO-PARTNERS TRADING AS JOSEPH F. AND MILTON M. STEIN, PLAINTIFFS, v. J. T. STOUT COMPANY. INCORPORATED, FABIO MATAZZO AND UNITED STATES FIDELITY AND GUARANTY COMPANY, A CORPORATION, DEFENDANTS.
    Decided June 20, 1931.
    For the plaintiffs, David Goldstein.

    For the defendants, Robert J. Tail Paul.

   Lawrence, C. C. J.

This suit was submitted to the trial judge at the Monmouth Circuit, without a jury, on a stipulation of facts, for determination on the law deemed applicable. The plaintiffs seek judgment against the defendants Matazzo' and the Fidelity and Guaranty Company in the following circumstances: On July 16th, 1929, Matazzo entered into a contract with the state highway commission for the construction of certain Sections of Highway Eoute Ho. 39. He gave bond as required by the state Bonding act (Pamph. L, 1918, p. 203), with the company in question as surety, conditioned, among other things, for the payment of all lawful claims of subcontractors, materialmen and laborers for labor performed and materials furnished in the carrying forward, performance and completion of the contract, as contemplated by the statute. Thereafter Matazzo subcontracted a part of the necessary excavation and fill, required by the general contract, to the J. T. Stout Company. The latter thereupon hired of plaintiffs two trucks with drivers, agreeing to pay therefor the sum of two dollars and fifty cents per hour, less the cost of gasoline and oil. The trucks were not operated by plaintiffs, but were used by the Stout company when and where it desired in carrying on the work to be done under its contract with Matazzo. Before completing it, however, the Stout company defaulted leaving certain unpaid bills in connection with the work, among them a bill of plaintiffs for $877.50, less charges for gas and oil provided for the trucks by the company of $84.90. Alleging to have a lienable claim under the Bonding act, supra, plaintiffs thereupon resorted to the provisions o'f that act and sought payment of the defendant bonding company, which was refused and the present suit brought. The only question presented at the trial was whether the furnishing of the trucks with drivers, in the circumstances stated, was labor performed or materials furnished within the meaning of the statute. It would seem that the answer must be in the negative.

The statute requires the payment of lienable claims only, and, according to judicial interpretation, the rental of an instrumentality, such as the hire of a truck to be operated by the subcontractor, is not within its intent or meaning as labor or material, since it does not involve a contract for transportation to be performed by the owner of such vehicle. Delaware River Quarry and Construction Co. v. Board of Freeholders, 88 N. J. Eq. 506 (where the nature of the engagement is pointed out as important), citing Davis v. Midi, 86 N. J. L. 167. While Hammil v. Commercial Casualty Insurance Co., 5 N. J. Mis. R. 685, is urged as controlling here, the text of that case indicates that a contract for transportation was involved. The result is that a judgment of no cause of action must be entered in favor of defendants and against the plaintiffs. (Note—See, also, Central Railroad of New Jersey v. Gallena-Poole, 107 N. J. Eq. 267.)