text:
    M. REICHMAN & SON, INCORPORATED, PLAINTIFF-RESPONDENT, v. PUBLIC SERVICE TRANSPORTATION COMPANY, DEFENDANT-APPELLANT.
    Submitted January term, 1928
    Decided June 21, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the respondent, Edwards & Smith and Raymond Dawson.

    For the appellant, Henry H. Fryling.

   Per Curiam.

This suit was brought to recover damages to a White truck. The truck of the plaintiff on the 14th of March, 1925, was being operated in a southerly direction on Halsey street near its intersection with Central avenue, in the city of Newark. The defendant’s automobile bus was being operated in an easterly direction on Central avenue near its intersection with Halsey street. A collision took place between the automobile bus of the defendant and the truck of the plaintiff, causing the damages sued for.

The trial resulted in a verdict for the plaintiff for $2,-327.44. The defendant appeals and files six grounds of appeal. The fourth and fifth grounds are alleged error by the trial court in refusing to nonsuit the plaintiff or direct a verdict in favor of the defendant. Not so. Cases of collision on highways almost invariably involve questions of concurrent negligence on the part of both actors, and in these cases the questions are in a peculiar sense questions for a jury. 1 Thomp. Negl., § 1322, cited with approval in Fox v. Great Atlantic, &c., Co., 84 N. J. L. 728. So, a motion for a non-suit admits the truth of the plaintiff’s evidence and of every inference of fact that can be legitimately drawn therefrom, but denies its sufficiency in law. Fox v. Great Atlantic, &c., Co., Ibid. 726; Jones v. Public Service Railway Co., 86 Id. 646.

The sixth ground' — criticism aimed at a detached portion of the charge relating to contributory negligence is not error, particularly when read in connection with the whole charge on that subject. A charge must be construed in its entirety. Veader v. Veader, 89 N. J. L. 727.

The second ground is abandoned in the brief of the appellant. The first and third grounds, the only remaining ones, refer to the testimony of a witness Arthur J. Eeichman in reference to the charge to the plaintiff for the use of a truck for fifty days; the third refers to the same subject, the court’s refusal to strike out such testimony. We find no error here. Finding no error in the record, the judgment of the Essex County Court of Common Pleas is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CATHERINE O’CONNOR, ADMINISTRATRIX OF JOHN O’CONNOR, PLAINTIFF-APPELLANT, v. WILLIAM J. BLACKER, ADMINISTRATOR OF ANNIE O’CONNOR, DEFENDANT-RESPONDENT.
    Submitted January term, 1928
    Decided June 21, 1928.

      Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, Alexander Simpson.

    For the defendant, Daniel P. Byrnes.

   Per Curiam.

This suit was brought by the daughter and administratrix of John O’Connor, deceased, to recover $10,000 alleged to be in the possession of William J. Blacker, who is the administrator of the estate of Annie O’Connor, deceased. She was the widow of John O’Connor. John O’Connor died in 1915. His wife, Annie O’Connor, died December 18th, 1924.

The trial resulted in a directed verdict in favor of the defendant. The plaintiff appeals and files as a ground of error the direction by the court of a verdict in favor of the defendant. The judgment of the Hudson County Court of Common Pleas must be affirmed for two reasons — 1st, because the proofs submitted by the plaintiff fail to show a cause of action against the defendant; 2d, because the Orphans Court of Hudson county, on August 21st, 1925, ordered that all creditors of the estate of Annie O’Connor, deceased, who had not brought in their claims within, the time in the order directed, should be barred from any action therefor against the defendant. 3 Comp. Stat., p. 3835, § 70. Under that order the plaintiff is barred from having or maintaining the above action against the defendant. This was set up as a defense in the answer. Newbold v. Fenimore, 53 N. J. L. 307; Hackensack Trust Co. v. Van Den Berg, 92 Id. 412.

The judgment of the Hudson County Court of Common Pleas is affirmed.


text:
    MARIE OPENHYM ET AL., PLAINTIFFS, v. HARRY W. FOELLER ET UX., DEFENDANTS.
    Submitted January term, 1928
    Decided June 21, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiffs, Feder & Rinzler.

    For the defendants, Edwards & Smith.

   Per Curiam.

This suit was brought to recover damages for personal injuries to the plaintiff Marie Openhym, and incidental damages to her husband, Sam Openhym. On April 20th, 1926, the plaintiff Marie Openhym, while walking along the sidewalk- in front of the defendants’ land, located on Garden street, in the borough of East Rutherford, New Jersey, tripped over a flagstone and fell, with the result that she was injured. Negligence is alleged in the complaint.

The trial resulted in a verdict in favor of the plaintiff Marie Openhym for $2,000 and a verdict in favor of the plaintiff Sam Openhym for $500 against both defendants.

The defendants obtained a rule to show cause why the verdict should not be set aside and assign as a reason for granting a new trial; that the verdict is contrary to the weight of the evidence. Our reading of the testimony leads us to the conclusion that this point is not tenable. The case in its legal aspect is controlled by the case of Braelow v. Klein, 100 N. J. L. 156. The rule to show cause is discharged.


text:
    FRED S. EVERETT, RELATOR, v. FIRST BAPTIST CHURCH OF SUSSEX, NEW JERSEY, RESPONDENT.
    Submitted May 10, 1928
    Decided June 22, 1928.
    Before Justices Minturn, Black and Campbell.
    For the relator, King & Vogt.

    For the respondent, Levi H. Morris.

   Per Curiam.

Eelator was a member and a deacon of the respondent church, a corporation of this state, and not a member of or affiliated with any organization of Baptist churches having jurisdiction over it, and from whose acts' and proceedings there is no appeal to any higher ecclesiastical tribunal.

At a church meeting held on December 9th, 1925, relator’s name was stricken from the rolls of the church and he now has a rule to show cause why an alternative or peremptory writ of mandamus should not issue requiring the respondent to reinstate him.

Courts of law will interpose to control the proceedings of ecclesiastical bodies where a right of property is involved, but with respect to the spiritual and temporal acts of the church, not affecting the civil rights of individuals or the property of the corporation, the ecclesiastical courts and governing bodies of the religious society have exclusive jurisdiction and their decisions are final. Livington v. Trinity Church, 45 N. J. L. 230; Jennings v. Scarborough, 56 Id. 401; Nance v. Busby, 91 Tenn. 303; 15 L. R. A. 801.

In the matter before ns, no civil right or right of property-being involved, the action of the respondent should not be interfered with, and, therefore, the writ of mandamus is denied and the rule to show cause is discharged.


text:
    WILLIAM BOWER v. TOWNSHIP COMMITTEE OF THE TOWNSHIP OF LITTLE FALLS ET AL.
    Argued May term, 1928
    Decided June 21, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Reuben H. Reiffin.

    For the defendant, Gustav A. Hunziker.

   Per Curiam.

This writ brings up for review the proceedings resulting in the award of a contract for the removal of garbage by defendant township to one De Roo Brothers, whose bid was $3,946, whereas the prosecutor’s bid was $3,380.

The specifications, as advertised, contained this provision:

“Contractor must provide his own dumping ground, and shall state the place where such garbage would be dumped [which must be approved by the township committee], and bids shall be accompanied by the consent in writing of the owner of such ground to the dumping of ashes and garbage thereon by the contractor during the term of this contract.”

De Eoo Brothers, to whom the contract was awarded, submitted a bid some $500 higher than the prosecutor, and specified as a dumping ground a place within the township of Little Falls, together with the consent of the owner thereto.

The prosecutor submitted with his bid the consent of three persons to the dumping of garbage upon their tracts which were located outside the limits of the township. After an inspection of the proposed dumping sites, the defendant township required as a condition precedent to their approval of the dumping places of the prosecutor, that he obtain the consent of the governing bodies and boards of health of the municipalities in which his available dumping grounds were located for the dumping of garbage from Little Falls within those limits. Upon the assurance from the prosecutor that he would obtain such consents, the matter was laid over to January 9th, at which time the prosecutor produced the consent of Wayne township committee, but not the consent of the board of health of said township; nor did he present the consent of either the governing body or the board of health of West Paterson. Under the circumstances the respondents adopted a resolution disapproving the dumping places proposed by the prosecutor and awarded the contract to De Eoo Brothers, which is the resolution here contested.

It was stipulated that there were no ordinances of the governing body or board of health of West Paterson requiring permits for dumping of garbage within its limits. The good faith of the respondents in making the award is not questioned. ,

We think the specifications were properly advertised so as to inform all bidders of the requirements, and that like opportunities to bid were offered to all bidders. We also think the prosecutor was afforded a reasonable time within which to produce the necessary permits for dumping, and that his failure so to do presented a reasonable basis for the rejection of his bid.

The writ will be dismissed and the resolution affirmed.


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    CATHERINE FISHER, PLAINTIFF, v. PATERSON MILK AND CREAM COMPANY ET AL., DEFENDANTS.
    Argued January 18, 1928
    Decided June 21, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd. .
    For the plaintiff, John Pomfret and Benjamin L. Stein.

    For the defendant Paterson Milk and Cream Company, Mendelsohn & Mendelsohn.

    For the defendant White & Shauger, John A. Matthews.

   Per Curiam.

The plaintiff, Catherine Fisher, was injured on December 5th, 1924, while standing or walking on the sidewalk on the northwest corner of Summer and Clay streets, in the city of Paterson, caused by a collision of the two trucks of the defendants. Negligence is charged against both defendants and the proofs justify the finding of the jury on that issue.

The trial resulted in a verdict against both defendants and in favor of the plaintiff, Catherine Fisher, for $20,000. Buie to show cause why the verdict should not be set aside and a new trial granted were obtained by each of the defendants. The reasons alleged for a new trial are identical in each ease. There is no merit in any of them except the third, viz., the verdict is excessive. This we think is so. If the plaintiff will accept $15,000 the rules will be discharged, otherwise they will be made absolute.


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    BERTHA CORNICOFF, BY NEXT FRIEND, ET AL., PLAINTIFFS, v. SAUL HOFFMAN AND ISAAC LEVINE, DEFENDANTS.
    Submitted January term, 1928
    Decided June 21, 1928.
    Before G-ummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiffs, Aaron L. Simon.

    For the defendants, Alexander M. MacLeod.

   Per Curiam.

These two suits were tried together. They were brought to recover damages for personal injuries caused to the plaintiff Bertha Cornicoff while riding in the automobile of the defendant Saul Hoffman, on the 8th day of August, 1925, and incidental damages to her father, Max Cornicoff.

The trial resulted in a verdict of $25 against each defendant in favor of the father, Max Cornicoff, and a verdict of six cents in favor of the daughter, Bertha Cornicoff, against each defendant, as stated in the brief of the plaintiff, the verdict of the jury is not printed in the paper book. Eules to show cause were obtained by the plaintiff why a new trial should not be granted, alleging that the damages assessed by the jury were inadequate.

We think the rule in each case should be made absolute, and such is the order of the court.


text:
    LEONORA F. BURKART, PLAINTIFF, v. HOWARD ELLIOTT, DEFENDANT.
    Submitted January term, 1928
    Decided June 21, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, Autenrieth, Gannon & Wortendyke.

    For the defendant, Jerome J. Dunn.

   Per Curiam.

This suit was an action in the nature of deceit to recover the sum of $1,500, with interest, from November, 1922. The allegation in the complaint is, that the plaintiff gave the defendant the money to be invested in short term first real estate mortgage or mortgages, but, instead of so doing, the defendant appropriated the money to other uses, to wit, $800 was loaned on a promissory note without security and $700 was used by the defendant for the business purposes of the Howard Elliott Corporation, a corporation of which the defendant was president. The trial resulted in a verdict for the plaintiff for $1,948.25. The defendant obtained a rule to show cause on the grounds that the verdict is contrary to the weight of the evidence and contrary to the charge of the court. Our examination of the case leads us to the conclusion that neither of these grounds for a new trial are tenable. The rule to show cause is therefore discharged, with costs.


text:
    ELIZABETH JOHNSON ET AL., PLAINTIFFS, v. PUBLIC SERVICE TRANSPORTATION COMPANY, DEFENDANT.
    Submitted January term, 1928
    Decided June 21, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiffs, Samuel L. Hirschberg.

    For the defendant, Henry H. Fryling.

   Per Curiam.

The plaintiff Elizabeth Johnson, on September 16th, 1926, was a passenger in an automobile bus operated by the defendant company. The bus collided with a Eord automobile proceeding in the same direction. The bus ran into the rear of an automobile truck parked on the right side of the street, as a result of 'which the plaintiff Elizabeth Johnson was injured.

The trial resulted in a verdict for the defendant. The plaintiff obtained a rule to show cause why the verdict should not be set aside, on the ground that the verdict is against the great weight of the evidence. Our examination of the case leads us to the conclusion that the rule to show cause should be made absolute, on the ground that the verdict is against the weight of the evidence.


text:
    GEORGE HERBERT v. NEWARK HARDWARE AND SUPPLY COMPANY.
    Argued May term, 1928
    Decided June 21, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Joseph, C. Paul.

    For the defendant, Sara M. Lewitt.

   Per Curiam.

By this writ an employer seeks to review a judgment in a workmen’s compensation case for $490 entered in favor of the workman by the commissioner, and affirmed in the Essex Common Pleas.

The workman was ruptured while lifting a heavy stove when his fellow-worker, who was assisting him in placing the stove on a truck, let go his end, thereby throwing the entire weight of the stove upon the petitioner.

The petitioner testified that some two and one-half years previously, while working for the same employer, he was ruptured, as he' says, “not so bad” on the same side; he did not submit to any operation for that injury, but wore a truss for a year, and he says “it didn’t bother me.” He continued working under that condition until the time of the accident now under review. He was treated for the first injury by his employer’s doctor, who was not called, as a witness in this case.

The petitioner’s doctor testified that a hernia could only be cured by an operation; he also testified in explanation of the fact that the petitioner worked even after discarding the truss, that “the intestine will go back up itself and will only come down again under a strain.”

The employer contends that since the petitioner admitted that he had a hernia two and a half years ago, and never submitted to an operation therefor, he still had it on the date of this accident, and could not then have sustained another and distinct injury.

We think the medical testimony leads to a different conclusion, from which it may be legally inferred that the petitioner’s present condition is the result of the injury he received under the circumstances stated. The result is that the judgment of the Common Pleas will be affirmed.


text:
    ALFRED ANGELO, PROSECUTOR, v. CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY ET AL., DEFENDANTS.
    Argued May term, 1928
    Decided June 21, 1928.
    Before Justices Minturn, Black and Campbell.
    For the commission, Ernest L. Quackenbush, and Edward L. Katzenbach, attorney-general.
    For the city of Newark, Jerome T. Congleton.

   Per Curiam.

This writ reviews the proceedings of the civil service commission of the state in sustaining the dismissal of the prosecutor from the position of chauffeur of the department of parks and public property of the city of Newark, on the ground that the position had been abolished.

Por abont eighteen months the prosecutor had served as chauffeur to a car assigned to Commissioner Gillen of that city. The prosecutor’s evidence was that on Eebruary 18th, 1927, he drove the commissioner to the tube station where he was told to place the car in a garage and go home; he placed the car in a garage which was in the rear of the commissioner’s home, when Mrs. Gillen asked him to wait in order to perform some household service; he waited an hour and a half and then left. The next morning he was upbraided by Mrs. Gillen for his conduct and was informed by the commissioner that if he desired to retain his place he would be obliged to take orders from the commissioner’s wife. Upon reaching the city hall with the commissioner he was ordered by him to surrender the keys and was informed that he would be transferred to another department; an attempt was made to effect such a transfer, but the prosecutor refused to accept the position of driver of a garbage truck, and in this refusal he was upheld by the civil service commission on March 27th. On April 5th a resolution was passed abolishing the position he had occupied.

The car continued in service thereafter, and was operated by different city employes, and chiefly by one McMahon and one Bontellite, both employes of the shade tree division. McMahon was not appointed to the place until six weeks after the resolution was passed. There was no evidence that the salaries paid these drafted employes was less than that received by the prosecutor.

The commissioner denied any request from, or complaint of, his wife regarding the prosecutor, and based his action on grounds of economy in the public service, in that the prosecutor, as chauffeur, was idle practically all day on many occasions. This was admitted by the prosecutor, who contends that inasmuch as the automobile is still used in the city service the position he occupied has not in fact been abolished. He fails, however, to distinguish between the use of the automobile by the city and the service incident to the position of chauffeur, which presents the real test of the legality of his discharge. Paddock v. Hudson County Board, &c., 82 N. J. L. 360.

An applicable case is that of Burney v. Paterson, 3 N. J. Mis. R. 1197. The same general topic is dealt with in 20 Anno. Cas. 247.

Our conclusion is that the judgment of the civil service commission must be affirmed.


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    ELEANOR ROTENBURY, PLAINTIFF, v. JAMES HUNT, DEFENDANT.
    Submitted January term, 1928
    Decided June 21, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, Patrick H. Harding.

    For the defendant, Howard L. Miller.

   Per Curiam.

The defendant obtained a rule to show cause why the verdict rendered in this case in favor of the plaintiff for $5,000 for personal injuries and against the defendant should not be set aside and a new trial granted.

We think none of the reasons alleged for a new trial are tenable. The rule to show cause is discharged, with costs.


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    JOHN STIHOWSKY, ADMINISTRATOR AD PROSEQUENDUM, PLAINTIFF, v. JOHN SEMPOMKIEWICZ, DEFENDANT.
    Submitted January term, 1928
    Decided June 21, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, Feder & Rinzler.

    For the defendant, Thomas J. Kennedy.

   Per Curiam.

This suit was brought to recover damages under the Death act. The complaint alleges and the proofs support the allegations in the complaint, that Mary Stihowsky, the plaintiff’s intestate, was a tenant of the defendant, on the second floor of an apartment house, No. 20 Jackson street, in the city of Passaic, New Jersey, and on the 9th of September, 1924, she fell from the porch. The porch rails and poles thereof had become rotten and faulty. She fell twenty feet, causing her death. Negligence of the defendant in the respects above stated being alleged.

The trial resulted in a verdict for the plaintiff for $2,916. The defendant obtained a rule to show cause why the verdict should not be set aside and a new trial granted. The defendant writes down three reasons in support of the rule — first, the verdict is against the weight of the evidence; second, the verdict is excessive; third, error in refusing to nonsuit the plaintiff.

We find no merit in any of these reasons. The case is controlled by the case of Charney v. Cohen, 94 N. J. L. 381; affirmed, 95 Id. 538.

The rule to show cause is discharged, with costs.


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    MARY KLUCZNIK, ADMINISTRATRIX AD PROSEUENDUM, PLAINTIFF, v. FRANK SHAIKOFSKY ET AL., DEFENDANTS.
    Argued January 18, 1928
    Decided June 21, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiff, Edmund A. Hayes.

    For the defendant Jacob Rutkowski, William E. Holmwood.

    For the defendants Frank Shaikofsky and Alex. Gawrillow, George L. Burton.

   Per Curiam.

This suit was brought to recover damages under the Death act. The plaintiff^ intestate, Philip Klueznik, was killed on the night of December 4th, 1926, while crossing Whitehead avenue, in the borough of South River, by being struck by the automobile of the defendants and operated by the defendant Erank Shaikofsky.

The trial resulted in a verdict for $15,000 in favor of the plaintiff and against the defendants Erank Shaikofsky and Jacob Rutkowski. The defendant Jacob Rutkowski obtained a rule to show cause why the verdict should not be set aside and a new trial granted. He writes down eight reasons in support of the rule. These call for no extended discussion. The controverted points in issue were all questions of fact. So, as to the credibility of the witnesses. It is elementary learning that on conflicting evidence the facts and inferences to be drawn therefrom are for the jury to determine.

The rule to show cause is discharged.


text:
    MAX ECKERT AND MARGARET ECKERT v. MORRIS DEUTSCH.
    Decided June 22, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Alfred A. Stein.

    Contra, Emil J. Hoos.

   Per Curiam.

This suit was brought by a husband and wife to recover compensation for alleged criminal assaults attempted to be made by the defendant upon the body of the female plaintiff on several different occasions. The trial resulted in a verdict in favor of Mrs. Eckert, the jury awarding nothing to the husband.

The principal reason specified for making this rule abso-lute is that it is contrary to the weight of the evidence. Our examination of the proofs sent up with the rule to show cause not only satisfies us that this is so, but that the verdict is in the face of the overwhelming weight of the testimony. Eor this reason we conclude that it should be set aside, notwithstanding the fact that the record of the cause shows that this verdict was rendered upon a second trial of the issue.

The rule to show cause will be made absolute.


text:
    THE UNION COUNTY PARK COMMISSION, RELATOR, v. THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF UNION ET AL., RESPONDENTS.
    Submitted May 10, 1928
    Decided June 22, 1928.
    Before Justices Minturn, Black and Campbell.
    For the relator, David Armstrong.

    For the respondent, Francis J. Blatz.

   Per Curiam.

Under Pamph. L. 1898, p. 19 (3 Comp. Stat., p. 4180, § 97, &e.) the relator made demand upon the respondent the board of chosen freeholders of the county of Union to issue and sell $500,000 of bonds for county park purposes.

On November 19th, 1936, bonds were sold in the principal sum of $484,000, bringing a premium of $16,017.01, making the total gross proceeds $500,017.01. The expenses and costs were $1,047.19, leaving the net proceeds at the sum of $498,-963.82. The proceeds of the sale were deposited in banks on November 19th, 1926, and interest upon such deposits was paid by the banks to the county. On December 3d, 1926, the county treasurer paid to the relator $200,000, and on December 6th, 1926, $298,962.82. This was in full of the sale price of the bonds less expenses and costs, but did not include the interest payments by the banks in which the funds had been deposited.

Such interest is the sole basis of the controversy between the parties.

The relator contends that this interest forms a part of the proceeds of the sale of the bonds and the respondents claim that it does not. The payment of such interest by the bank depositories was a proper and economic requirement which should have been and was required and exacted by the respondents, and, in our judgment, was properly a part of the proceeds of the sale of such bonds. Had interest accrued upon such bonds from their date until taken up and paid for by the successful bidders, such interest admittedly, we think, would have become a part of the proceeds of the sale, and we are unable to distinguish between such a situation and the condition now before us.

A peremptory writ of mandamus may issue, directed to the respondents, requiring the payment to relators of the amount of interest paid to the former upon such bank deposits.


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    FLORENCE S. SCULL ET AL., PROSECUTORS, v. CITY OF OCEAN CITY ET AL., RESPONDENTS.
    Submitted May 10, 1928
    Decided June 22, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutors, Bourgeois & Coulomb.

    For the respondents, F. Stanley Kreps, Robert K. Bell and Andrew C. Boswell.

   Per Curiam.

This writ was allowed after the appointment of commissioners to condemn lands for the purpose of erecting thereon an incinerating plant for Ocean City.

The land in question is known as “Finger Island,” and the whole question involved is whether this land is within the boundaries of Ocean City or within Upper township in Cape May county. If it lies within the latter municipality then it may not be used for the purpose contemplated by Ocean City without the consent of the governing body of Upper township and its board of health. Pamph. L. 1917, p. 410.

This restriction is admitted, and, further, that such consents have not been obtained.

The prosecutor Florence S. Scull is the owner of the land in question and has paid taxes upon it in both Ocean City and Upper township for the same years.

The whole difficulty arises from the description in the legislative act creating Ocean City {Pamph. L. 1897, p. 107), and particularly in locating the second course — “thence northeasterly along said Beach thoroughfare to the most easterly channel of Peck’s bay.”

The pertinent factual inquiry is, What is and where is located “the most easterly channel of Peck’s bay?”

From all the proofs the most persuasive, and to us controlling, is the testimony of several bay men who have spent their lives upon the waters about Ocean City. Their testimony is that there were and are channels in Peck’s bay, and that the most easterly thereof extends from the southerly end of the bay along the easterly shore thereof into the mouth of Back thoroughfare, and thence along the Back thoroughfare and Beach thoroughfare to the main channel between Atlantic and Cape May counties in Great Egg Harbor bay. This would place “Finger Island” in Upper township, and we so find.

The proceedings in condemnation under review will therefore be set aside, with costs.


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    CHARLES E. KNOBLE, PROSECUTOR, v. THE BOROUGH OF HAWTHORNE, IN THE COUNTY OF PASSAIC, ET AL., RESPONDENTS.
    Submitted May 10, 1928
    Decided June 22, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Rosenkrans & Rosenkrans.

    For the respondents, no appearance.
   Per Curiam.

The writ in this ease brings up for review resolutions of the commissioners of the borough of Hawthorne adopted December 9th, 1927, designating Peter Mason as the director of the department of public affairs and the department of public safety in the place and stead of the prosecutor.

The whole question here is whether or not chapter 330, Pamph. L. 1927, authorized such action. That act is a supplement to the Walsh act (Pamph. L. 1911, ch. 221), and was adopted as the result of the finding of the Court of Errors and Appeals in Oliver v. Daly et al., 4 N. J. Adv. R. 1833.

Such legislation permits and authorizes the action taken as evidenced by the resolution under review. The result is that such action and the resolutions are affirmed and the writ of certiorari is dismissed, with costs.


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    PAULINE DeLAMARTINERE v. ELSIE O. CROSTHWAITE ET AL.
    Decided June 22, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, John A. Laird.

      Contra, Frank G. Turner.

   Per Curiam.

This is a rule allowed to the plaintiff to test the validity of a verdict rendered in favor of the defendants. The suit arose out of a collision between an automobile in which the plaintiff was riding and a car belonging to the defendant Elsie Crosthwaite, and driven by her son, John, the other defendant. The plaintiff’s claim was that the accident resulted solely from the carelessness of John and was not contributed to by the carelessness of her own chauffeur. Our examination of the testimony satisfies us that the jury was justified in finding that the collision was partly, if not wholly, the result of the-negligence of the plaintiff’s own chauffeur.

The rule to show cause will be discharged.


text:
    DOURTE & IRELAN, INCORPORATED, v. PENNSYLVANIA RAILROAD COMPANY.
    Decided June 22, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Bourgeois & Coulomb.

    Contra, Charles W. Letzgus.

   Per Curiam.

The plaintiff sued to recover compensation for damages done to its truck, which was struck by a train of the defendant company while crossing over the latter’s tracks, in the county of Burlington. The contention of the plaintiff was that the accident happened because of the failure of the railroad company to install a crossing bell or to have any other protection in the way of a warning located at the crossing; and, further, that no bell was rung or whistle blown as the train approached. Assuming all of these facts to be satisfactorily proved, it seems to us that the verdict in favor of the plaintiff cannot be justified. It conclusively appeared that there was an unobstructed view down the track in the direction from which the train was approaching for more than a quarter of a mile. The driver of the truck testified that he failed to observe the approach of the train because from the place in which he was sitting in the truck it was impossible for him to see in that direction, and that, consequently, he did not know that the train was approaching until he was partly across the track. According to his own story, his conduct was very largely the cause of the accident. If he could not see in the direction from which the train was approaching from the place where he was sitting in the truck, it was his duty, not only for his own protection, but for the protection of his master’s property, to change his position to one from which he could see, or, if it was impossible to observe the approach of a train from any place in the truck, then it was his duty to get out of that vehicle and go forward and make the observation necessary for his own protection and that of his master.

We conclude that, for the reason indicated, the rule to show cause should be made absolute.


text:
    ALFRED WOLF v. PUBLIC SERVICE RAILWAY COMPANY.
    Decided June 22, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Henry H. Fryling.

    Contra, Charles W. Letzgus.

   Per Curiam.

About eleven o’clock in the morning of May 24th, 1924, the plaintiff, while driving out of a private lane leading from the home of one Howey to a public highway, known as Mantua Pike, in Deptford township, Gloucester county, collided with a trolley car of the defendant company, which was being operated upon said highway. He brought suit for the injuries received by him in the collision, and for the damage done to his wagon and harness and one of the horses which he was driving. The jury rendered a verdict in his favor.

The principal contention on the part of the defendant is that the verdict of the jury in imposing liability for the accident upon the driver of the trolley car was contrary to the great weight of the evidence. We think this contention well founded. As the plaintiff was coming out of the lane the trolley car was approaching from his left. His story upon the witness-stand was that when he got about within ten feet of the track he stopped his team, and looked both to his right and to his left, but saw no trolley car approaching in either direction. He further testified that, before and when he reached the point where he stopped, his view toward the left was obstructed by a sand bank and some bushes and trees. The great weight of the evidence is contradictory of his statement as to his inability to see the approaching trolley car. Among other witnesses testifying on this point was Mr. Howey, the owner of the premises which the plaintiff was leaving, and who was called by him as a witness. Howe}" testified that this bank which the plaintiff said obstructed his view when he stopped to look was at its highest point about six feet, but that it came down to the level of the ground around it about thirty or forty feet from the railroad track, and that there was nothing from that point to the public road in the shape of bushes or trees or anything else to obstruct a clear view to the left. The testimony above referred to clearly indicates that the collision was largely the result of the plaintiff’s own negligence.

Eor this reason the rule to show cause will be made absolute.


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    CAROLINE QUARDT ET AL. v. PUBLIC SERVICE TRANSPORTATION COMPANY AND HENRY MARTIN TRANSPORT COMPANY.
    Decided June 22, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, John A. Matthews.

      Contra, Peter J. McGinnis.

   Per Curiam.

The plaintiff, while riding as a passenger in a bus belonging to the Public Service Transportation Company, which was proceeding on Toto'wa avenue, in the borough of Totowa, was injured in a collision between the bus and a truck belonging to the Martin Transport Company. The trial resulted in the rendition of a verdict against both defendants, the award to Mrs. Quardt being $7,875 and to her husband $5,000. The present rule was allowed to the defendant Martin Transport Company.

The principal claim of the Martin company is that the verdict against it is contrary to the weight of the evidence, the proofs clearly showing that the accident was solely the result of the negligence of the driver of the public service bus. Our examination of the testimony sent up with the rule leads us to the opposite conclusion, namely, that the collision was largely the result of the carelessness of the driver of the defendant’s truck.

The only other contention on the part of this defendant is that the award of the jury was excessive. We are not impressed with this contention. The accident occurred on October 5th, 1926, and Mrs. Quardt was very seriously injured. Her legs are paralyzed and she is unable to walk. The case was tried in October, 1927, two years after the accident occurred, and her physical condition at that time was such that she had to be brought into court upon a stretcher. Whether she will ever be restored to the full use of her legs is at least very doubtful. As to the award to the husband: The jury was justified in concluding from the proofs that he had already expended as a result of his wife’s injuries something in the neighborhood of $3,000 for medical treatment to her and for the increased cost of keeping his house by employing a woman to do the work which his wife prior to that time had always taken care of. The jury was further justified in concluding that this condition will go on indefinitely, and that the husband will probably be required to expend more hereafter than the balance left from the award as a direct result of the injuries received by his wife.

The rule to show cause will be discharged.


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    MORRIS FREIHON, ADMINISTRATOR, ETC., v. PUBLIC SERVICE RAILROAD COMPANY.
    Decided June 22, 1928.

      Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Henry H. Fryling.

      Contra, Maxwell A. Kraemer and Harry Heher.

   Per Curiam.

Joseph Freihon, the plaintiff’s decedent, a young man twenty-two years of age, while driving a Ford delivery truck along a street in the township of Hamilton, in Mercer county, attempted to cross over the right of way of the defendant company at its intersection with that street. A trolley car was approaching the intersection and collided with the truck as the decedent was in the act of crossing the track. The collision resulted in the instant death of the decedent. The jury rendered a verdict in favor of the plaintiff, awarding him $8,000.

The first contention on the part of the defendant is that the court erroneously permitted the plaintiff to amend his complaint at the trial. A consideration of the argument in support of this contention leads us to the conclusion that it is without merit.

It is further argued that the verdict should be set aside because the evidence conclusively established the fact that the plaintiff’s decedent was guilty of contributory negligence in failing to accord the trolley car a right to pass first over the crossing. The argument is that the defendant company was operating its road under a steam railroad charter, and that, this being so, it had the same rights in crossing over this public road as the operator of a steam railroad train would have. In other words, that the failure of the decedent to recognize the defendant’s superior right at this crossing was negligence on his part. The difficulty with this contention is that, so far as the proof indicates, the defendant company never took any of the steps required by the general railroad law to notify the public that it was operating under a steam railroad charter, and absolutely failed in the performance of the duties imposed upon railroad companies so operating at highway crossings. In the absence of such notice the decedent was justified in assuming what appearances indicated, viz., that the tracks he was about to cross were those of an ordinary street railway company.

The only other contention is that the damages awarded by the jury are excessive. Our examination of the testimony bearing upon this point leads us to the conclusion that it is well founded. If the plaintiff will consent to reduce the verdict to $5,000 he may enter judgment for that amount. Otherwise, the rule to show cause will be made absolute.


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    JAMES L. DOUGHERTY, EXECUTOR, ETC., v. ROBERT H. HUGHES.
    Decided June 22, 1928.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the rule, Howard L. Miller.

    Contra, Albert S. Woodruff.

   Per Curiam.

This is a death case brought by the executor of G. Eaymond Eichman, deceased, who was killed while riding in a car on the White Horse pike between Egg Harbor and Absecon, the car being driven by one Loeliger. The death was the result of a collision between that car and a truck owned by the defendant. The trial resulted in a verdict for $30,000 in favor of the plaintiff.

The first ground upon which we are asked to make this rule absolute is that the verdict in favor of the plaintiff was against the weight of the evidence, both on the question of the negligence of the driver of the truck and of the contributory negligence of the decedent. Our examination of the proofs in the case satisfies us that the finding of the jury was entirely justified on each one of these points.

The next contention is that the proofs show that at the time of the collision the truck was not being used in the service of the defendant, and that, therefore, he was not responsible for the negligence of the driver. We think this point also without merit. The driver was in his employ and he was operating the truck for the benefit of a friend of the defendant’s and in accordance with the instruction of the defendant. The relationship of master and servant still existed bétween the defendant and the truck driver, and, that being so, the defendant is responsible for the latter’s carelessness.

Lastly, it is contended that the verdict is excessive. Our reading of the testimony leads us to the conclusion that this contention is well founded. If the plaintiff will consent to have the verdict reduced to $20,000, he may enter judgment for that amount. Otherwise, the rule to show cause will be made absolute.


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    A. FISHMAN HAT COMPANY, INCORPORATED, PROSECUTOR, v. JACOB ROSEN ET AL., RESPONDENTS.
    Submitted May 10, 1928
    Decided June 22, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Emil Neblo.

    For the respondents, Kraemer, Siegler & Siegler.

   Per Curiam.

Jacob Eosen filed a petition with the New Jersey department of labor, workmen’s compensation bureau, for compensation for disability resulting from mercury poison contracted during his employment with the prosecutor. 'After answer' filed and hearing the compensation bureau made an order awarding compensation. Upon appeal to the Essex Common Pleas Court that tribunal affirmed such order, and this writ brings up for review such order and proceedings.

The first reason for reversal is that the supplement to the original Compensation act of 1911, chapter 95 (Pamph. L. 1924, ch. 124) is unconstitutional, because the original act applies to accidents only, and the supplement of 1924 applies to occupational diseases without change or amendment of the title of the act.

We find this to be without legal substance or merit.

The original act, by its title, related to “injuries” not “accidents.” Injuries, we think, is sufficiently broad to cover disability from accident as well as occupational disease. The cases cited by prosecutor are not applicable because either their title or context limit the recovery to injury through accident.

The second reason is that the act of 1924, supra, is unconstitutional because it attempts to amend the original act of 1911, supra, without reciting in full the sections attempted to be amended.

But this is not so. The act of 1924 is not an amendment of any part of the original act, but by its title and context is, in fact, a supplement thereto, adding a right of recovery for occupational diseases.

• The third reason is that, assuming that the act of 1924 is an independent piece of legislation, then the compensation bureau was without jurisdiction because such act makes no provision therefor.

Such assumption, however, is without any legal foundation, because as we have before found the act of 1924 is not a separate and independent act, but a supplement to the original act of 1911.

The fourth reason is that the petition charges an “accident” and the allowance was for an occupational disease.

The answer is that these proceedings are informal, and such misstatement is cured by the answer filed by the prosecutor and by the fact that the cause was heard by the deputy commissioner and by the Common Pleas Court upon the theory of disability caused by occupational disease.

The fifth reason is that there was no evidence upon which to base a finding that the disease grew out of and arose in the course of employment.

We find, however, that there was such evidence. The prosecutor argues that it did not use lead or mercury in its factory, but there was proof that a large percentage of the stock from which it manufactured hats required the use of mercury or quicksilver in their production and preparation.

The sixth reason is that the finding and judgment are not sufficiently specific.

We find no legal or factual merit therein. The final reason is that there was a failure of notice to the prosecutor as employer.

The proofs show that there was notice from the examining physician which, in our judgment, was sufficient to satisfy the requirements of the statute.

The proceedings and judgments under review are affirmed and the writ of certiorari dismissed, with costs.


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    JOHN M. DE MOL, PROSECUTOR, v. MAYOR AND COMMON COUNCIL OF CLIFTON ET AL., RESPONDENTS.
    Submitted May 10, 1928
    Decided June 22, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Rosenkrans & Rosenkrans.

    For the respondents, Frederick S. Ranzenhofer.

   Per Curiam.

This writ brings up for review the appointment of Garrett H. DeVies, as sealer of weights and measures, by the mayor of the city of Clifton, on January 2d, 1928, and the resolution of the city council confirming such appointment.

The question as to whether certiorari or quo warranto is the proper proceeding seems not to be raised.

On December 9th, 1925, an ordinance was adopted creating the office in question and fixing the term of the first appointee, who was the prosecutor, as extending to and expiring on December 31st, 1937, and fixing the term thereafter at two years. This ordinance took effect January 1st, 1936, when the prosecutor was appointed and qualified and undertook and did perform the duties of such office.

This ordinance was, undoubtedly, adopted under the authority of “An act to establish a uniform standard of weights and measures in this state, to establish a department of weights and measures, and to provide penalties for the use of other than standard or legal weights and measures.” Pamph. L. 1911, ch. 301, p. 414.

This act seems to fix no term for municipal superintendents although respondent asserts that it fixes the term at five years. As a matter of fact such term fixed by the statute applies only to the state superintendent.

However, the supplement to the original act (Pamph. L. 1913, ch. 119, p. 168) fixes the terms of county and municipal superintendents for the period “during good behavior * * *.” This was amended (Pamph. L. 1930, ch. 310, p. 406) so as to include “the secretaries and assistant superintendents.”

It appears certain, therefore, that at the time of the adoption of the ordinance of the city of Clifton the term fixed by statute was “during good behavior,” and the fixing of any other term was beyond the power and authority of the city.

It seems to us, therefore, that the prosecutor cannot successfuly contend that the action of the respondents in appointing DeVies was improper, for either one or both of two reasons—

1. Because the attempt to appoint prosecutor for a fixed term until December 31st, 1937, was a nullity, in that it was an attempt to appoint him for a lesser or greater term than that fixed by statute, and comes under the rule in Salter v. Burke, 83 N. J. L. 152; Nicolini v. Ubertino, 96 Id. 306, and Cafiero v. Peterson, 135 Atl. Rep. 783.

3. Or considering that the statutory provision “during good behavior” is not a fixed and definite term, then prosecutor, under the ordinance, took for a fixed term, and such act of taking and accepting amounted to a contract with the city within the rule laid down in Hardy v. Orange, 61 N. J. L. 620; Biddel v. Atlantic City, 91 Id. 679.

The prosecutor contends that the language of his appointment “for the term prescribed by law” means and must be construed as meaning the term, during good behavior, fixed by the statutes of 1912 and 1920, supra, but such appointment taking place immediately upon the ordinance in question becoming effective, fixing the term as ending December 21st, 1927, leaves this contention without merit.

The proceedings under review are affirmed and the writ of certiorari is dismissed, with costs.


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    GEORGE W. SHANER & SONS, PLAINTIFFS, v. THE BOARD OF EDUCATION OF THE CITY OF MILLVILLE ET AL., DEFENDANTS.
    Argued January 19, 1927
    Decided June 21, 1928.
    Before Justices Kalisch and Katzenbach.
    For the motion, Bleakly, Stockwell & Burling.

      Contra, Louis H. Miller.

   Per Curiam.

This is a motion to vacate an order made by the Supreme Court on October 21st, 1926. The order permitted the city of Millville, Irwin W. Kirk, director of revenue and finance of said city, and Irwin W. Kirk, as a resident in and taxpayer of said city, to intervene and defend the above action or prosecute any counter-claim therein, as they may be advised, in the name of the board of education of the city of Millville, in the county of Cumberland, the defendant in said action. This order was made ex parte and without notice to the plaintiffs or to their attorneys, and without any knowledge on their part that an application for such an order was to be made. Immediately after making the order of intervention an answer was filed by the intervenors. This motion affords the plaintiffs their first opportunity to present to this court their side of the controversy as to the making of said order.

It appears that the board of education of the city of Mill-ville entered into a contract for the erection of a high school. The contract contained provisions for a penalty to be paid by the contractor for failure to complete the same on time. The school building was not completed on time but was completed within such a time as enabled the pupils who were to attend school in such building to commence their work on time. The delay was not occasioned solely by the plaintiffs but in part by reason of the default of other contractors. The city of Millville was desirous that the full penalty should be exacted rather than that the matter should be left in the hands of the board of education of the city of Millville, which was the party that entered into the contract with the plaintiffs for adjustment.

Under the School law (Comp. Siat., p. 4140) it is provided, under section 45 of article 6, that “a board of education in a city school district shall be a body corporate and shall be known as and called The board of education of , in the county of , and shall adopt an official seal.”’ Under section 94 of article 1 of said law it is provided as follows:

“A board of education may, in its corporate capacity, sue and be sued, complain and defend in any court of law and equity, and employ counsel therefor, and the amount of the expense incurred by said board in conducting or defending any such suit shall be certified to the assessor by the president and district clerk of such board, and said amount shall be' assessed and collected in the next annual tax levy.”

Erom these sections it is our opinion that the School law makes the board of education a corporation, by which it is empowered to enter into contracts for the erection of schools, &c., and that matters growing out of such contracts are within the sole control of the board of education, and a municipal corporation has no standing to interfere with such action as the board of education may propose to take in the matter of adjusting differences under a contract for the erection of a school building.

It is only in certain classes of cases that a taxpayer may intervene. These provisions are found in sections 44 and 45 of the Practice act of 1903. Neither as a taxpaper nor as director of revenue and finance has the intervenor, Mr. Irwin W. Kirk, any standing in this action. Neither has the city of Millville. To countenance such an intervention is to transfer the power given to a board of education to the municipal government. This is not the scheme of the legislature. It would subordinate the board of education, which is an independent corporation, to the municipal body. It would make the members of the board of education manikins to be controlled by the action of the city. This, we do not think, as we have intimated, was the scheme of the legislature appertaining to a board of education. In many instances the members of board of education are elected. The law certainly does not mean that they are elected to be mere figureheads of the municipal government without the power to exercise discretion in matters appertaining to the government of schools. The mere fact that the principal and interest of bonds issued for school purposes has to be met by the city affords no sufficient grounds to subordinate a board of education to the whim or pleasure of the municipal government.

This is the view entertained by the United States District Court for the District of New Jersey in another action growing out of the erection of the same building instituted against the board of education of the city of Millville by one J. Howard Hutchinson.

The order of intervention, dated October 21st, 1926, will be vacated, with costs.


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    HENRIETTA WILHELMI, PETITIONER-RESPONDENT, v. AMERICAN RAILWAY EXPRESS COMPANY, DEFENDANT-PROSECUTOR.
    Submitted May term, 1928
    Decided June 27, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Harley, Cox & Walburg.

    For the respondent, O’Brien & Tartalsky.

   Per Curiam.

This is a workmen’s compensation case. The certiorari was allowed to review a judgment reversing an order made in the workmen’s compensation bureau dismissing the petitioner’s petition. The basis of that order was, as found by the deputy commissioner, that there was no legal evidence of an accident arising out of and in the course of the decedent’s employment. The Court of Common Pleas of Hudson county found there was such evidence. With that finding of fact by the court we are satisfied. The judgment must be affirmed.

The prosecutor files four reasons for reversing the judgment of the Court of Common Pleas. They all may be included in one, viz., the Court of Common Pleas entered judgment without evidence.

The controverted question is the finding by the Court of Common Pleas that on the 14th day of August, 1925, the petitioner’s decedent, Erederick Wilhelmi, while in the course of his employment and engaged in the work of a harness maker, suffered and sustained injuries to the umbillicus, a carcinoma of the umbillicus, as the result of an accident; that the said accident arose out of and in the course of decedent’s employment, and, as the result thereof, the said Frederick Wilhelmi died on the 1st da,y of October, 1925.

To prove the case the petitioner relied upon the testimony of Dr. Harry Greenstein (Record, p. 22); Dr. Ludwig R. Von Roeder (Record, p. 26); Dr. James Coughan (Record, p. 32). These physicians were all consulted for treatment by the decedent. Dr. Greenstein on the 4th day of August, 1925, the day of the alleged injury; Dr. Van Roeder on September 12th, 1925, and Dr. Coughan on September 23d, 1925. The decedent died October 1st, 1925. The testimony of these physicians was competent and legal evidence under the case of Koske v. Delaware, &c., Railroad Co., 6 N. J. Adv. R. 844.

It would serve no useful purpose to review the testimony set out in the record. It is rather fully set out in the brief of the respondent. The judgment of the Hudson County Court of Common Pleas is affirmed.


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    JOHN SONZOGNI, INDIVIDUALLY, ETC., PROSECUTOR, v. SAMUEL SANSEVERE, BY NEXT FRIEND, ETC., ET AL., DEFENDANTS.
    Submitted May term, 1928
    Decided June 27, 1928.
    Before Justices Minturn, Black and Campbell.

      For the prosecutor, Autenrieth, Gannon & Wortendyke.

    For the defendants, George E. Cutley.

   Per Curiam.

This is an application for a writ of certiorari to review an order made in the Hudson County Court of Common Pleas, in an accident case, why a new trial should not be granted on the ground of inadequacy of damages. The rule was made absolute on the question of damages only. In other words, the prosecutor applies for a writ of certiorari to review the order granting the new trial as to damages only. The writ of certiorari cannot be allowed for two substantial reasons— first, because the granting or refusing to grant a rule to show cause is a matter addressed to the discretion of the trial court. It is not reviewable upon appeal. Hickman v. Powell, 99 N. J. L. 274; Albert v. Hart, 44 Id. 366. Second, what was said by Mr. Justice Dixon in the case of Taylor Provision Co. v. Adams Express Co., 72 Id. 220, is applicable to the facts of this case, viz., the Circuit Court is a constitutional court of record, having general jurisdiction over common law actions, inter-parties, and proceedings therein according to the course of the common law. As such, its orders are reviewable, not by certiorari, but by writ of error (now appeal), 'and only after final judgment. So is the Court of Common Pleas, which is a constitutional court proceeding according to the course of the common law.

The order to show cause, dated April 3d, 1928, is discharged and the writ of certiorari applied for refused.


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    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, RESPONDENT, v. THE COLLEGE OF MECCA OF CHIROPRACTIC, INCORPORATED, PROSECUTOR.
    Submitted May term, 1928
    Decided June 27, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, J. Raymond Tiffany.

    For the respondent, Edward L. Katzenbach, attorney-general.
   Per Curiam.

The problem in this case to he solved, as we see it, is a simple one, although the solution is not quite so easy. The question is was the prosecutor required to take out a license under the act {Pamph. L. 1924, p. 395) entitled “An act for the licensing of schools and colleges conducted for the purpose of training or qualifying students to practice medicine, surgery or any method for the treatment of disease or any abnormal physical condition.”

The prosecutor’s charter provides for the maintaining and operating a school or schools in which students may obtain a technical or general education in the science, art and philosophy of chiropractic, and, especially, a thorough education in the studies of anatomy, physiology, pathology, etiology, biology, nerve tracing, &c. The title of the act is broad and most comprehensive, indicating a clear purpose, to include within its scope all schools and colleges maintained for the class of students designated. Section 1 follows closely the title, but adds to the words to practice medicine or surgery the words, or any branch thereof. It doubtless will be conceded, as it must be conceded, if the prosecutor is within the scope and meaning of the statute, the state has the clear power and right to impose a condition for doing business in the state, viz., the requirement that it shall first obtain a license under the statute, before conducting a school or college in the state. Ferguson v. Tuttle, 95 N. J. L. 374; State v. New Jersey Indemnity Co., Ibid. 308; State v. Chapman, 69 Id. 464; affirmed, 70 Id. 339.

The defendant was convicted in the Eirst District Court of Newark and fined $500 under the statute. Pamph. L. 1924, p. 395. This writ reviews the proceedings in that court.

The complaint alleged and the evidence supported a violation of the act by the prosecutor.

The prosecutor is a corporation organized in Delaware in 1916; certificate of authorization filed in New Jersey in 1919; it conducted its business in this state before the passage of the act requiring a license. Pamph. L. 1924, p. 395.

Prosecutor contends that the act violates its charter rights; that it constitutes an illegal regulation of a lawful business; that it imposes unreasonable -and unnecessary restrictions upon a private business.

Paragraph 1 of the act provides:

“No school or college shall, after September 1st, 1924, be conducted within this state for the purpose of training or qualifying its students to practice medicine or surgery or any branch thereof or any method for the treatment of disease or any abnormal physical condition without first securing from the state board of medical examiners of this state a license authorizing it so to do.”

Paragraph 3 provides:

“Said board shall issue its license to every school or college applying therefor which complies in all respects with the requirements adopted by the state board of medical examiners of New Jersey for class A medical colleges in force at the time such application shall be made.”

Section 8 provides: “Nothing in this act contained shall be construed as applying to any school conducted for the sole purpose of training persons to practice midwifery or chiropody.”

The secretary of the board of medical examiners testified that he knew of no resolution adopted fixing requirements of a class A medical college, but that the grading for such medical college, which is accepted by the board, is the one promulgated by the committee of education of the American Medical Association.

The prosecutor contends that prosecution under the act would not lie until requirements for class A medical college were formally adopted.

No doubt the legislature has the right to license medical schools and colleges and to make compliance with given standards of instruction a condition precedent to granting of license. But the prosecutor argues, inasmuch as the legislature has seen fit to provide for the licensing of chiropractors (practitioners in a limited branch of medical practice) without requiring of them a knowledge of all branches of the medical practice, it is an unreasonable and arbitrary regulation to demand, that a college for the education and training of students, in order to qualify them to become chiropractors, should be required to teach all branches of medical practice. Such a requirement, it is argued, is not regulatory but unreasonable. This is an argument properly addressed to the legislature and not to the courts.

Where that which is directed to be done is within the sphere of legislation, and the terms used clearly express the intent, all reasoning derived from the supposed inconvenience, or even absurdity of the result, is out of place. Douglass v. Freeholders of Essex County, 38 N. J. L. 216.

To use the words in the attorney-general’s brief:

The act of 1924, page 395, seeks to establish an educational standard for those schools or colleges proposing to train and qualify students to practice medicine and surgery or any branch thereof. The act, therefore, directly affects the qualifications and fitness of those who treat any physical ailment, regardless of the method advocated or used. This applies to those who practice chiropractic. They should be required to meet the educational standard adopted by the legislature, and thus protect the public from incompetent and unfit persons in the use of this particular method of treatment.

The requirements of the act of 1924 are therefore just and reasonable regulations. They in no way prohibit the prosecutor from conducting its business in this state. It merely imposes certain conditions which the prosecutor, in the conduct of its school, must comply with.

This the legislature had a legal right to do, and the act, therefore, does not offend against any constitutional provision.

The conviction of the defendant is proper and should be sustained.

The judgment of the First District Court of Newark is therefore affirmed.


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    BESSIE FLORIANO, RESPONDENT AND PETITIONER, v. ENDICOTT SUPPLY COMPANY, PROSECUTOR AND DEFENDANT.
    Submitted May term, 1928
    Decided June 27, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Bleakly, Stockwell & Burling.

    For the respondent, Thomas G. Tuso.

   Per Curiam.

This is a certiorari to review a judgment entered in the Cumberland County Court of Common Pleas, in a workmen’s compensation case, reversing an order in the workmen’s compensation bureau dismissing the petitioner’s petition. As we view the record only a factual question is involved. The reasons assigned for a reversal of the judgment are: The judgment is not supported by evidence and the death of petitioner’s decedent was not the result of an injury caused by an accident arising out of and in the course of the employment. No so. The petitioner or any of the alleged dependents were not partially dependent upon the decedent at the time of the alleged accident or death. Not so. Judge Bartlett’s review of the facts of the case in the Cumberland Court of Common Pleas is quite satisfactory. It would serve no useful purpose to make any further' or extended review of the facts. The judgment of the Cumberland County Court of Common Pleas is affirmed, with costs.


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    STATE BOARD OF MEDICAL EXAMINERS OF NEW JERSEY, COMPLAINANT-RESPONDENT, v. RICHARD BLECHSCHMIDT, DEFENDANT-PROSECUTOR.
    Submitted May term, 1928
    Decided June 27, 1928.
    Before Justices Minturn, Black and Campbell.
    For the prosecutor, Elmer W. Romine.

    For the respondent, Grover O. Richman and Edward L. Katzenbach, attorney-general.
   Per Curiam.

The defendant, Eichard Blechsehmidt, a licensed chiropractor, was convicted before the First District Court of Jersey City of a violation of Pamph. L. 1921, p. 702, § 10, of the practice of medicine and surgery without a license. The penalty of $200 was imposed. The acts complained of done by the defendant are not in dispute. In fact, they are admitted by the defendant as true. The only problem, therefor, for solution is, whether the defendant, as a licensed chiropractor, has the legal right by virtue of his license to commit the acts complained of by the complainant. Pamph. L. 1920, ck. 4, p. 15, defines the practice of chiropractic. By the terms of that statute the practice of chiropractic is limited to the manipulation of the body and spinal column by hand. The acts done by the defendant, speaking generally, were the use of a machine called a concusser, light to shine in the eye, which was connected with an electric current.

The question involved in this case has been substantially decided by this court in several cases. So far, in this court, it is not an open question, but is controlled by such cases as State Board of Medical Examiners of New Jersey v. De Young, 6 N. J. Mis. R. 231, and the State Board of Medical Examiners v. Livesey, Ibid. 177, now on appeal in the Court of Errors and Appeals, May term, 1928.

The judgment of the First District Court of New Jersey is affirmed.


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    SOHO PARK AND LAND COMPANY, PROSECUTOR, v. TOWN OF BELLEVILLE ET AL., RESPONDENTS.
    Submitted January 27, 1928
    Decided June 29, 1928.
    Before Justices Tkenchaed, Kalisch and Katzenbach.
    For the prosecutor, Whiting & Moore.

    For the respondents, John B. Brown.

   Per Curiam.

This case is before this court on a writ of certiorari. The writ is directed to the board of commissioners of the town of Belleville, in the county of Essex. It brings up the action of the board taken on October 4th, 1927, by which it instructed the building inspector of the town not to issue a building permit for the erection of a factory on property of the prosecutor in the town of Belleville, notwithstanding the board of adjustment of the town of Belleville held that a permit should be granted for the erection of a proposed industrial plant for the National Harris Wire Company. The prosecutor, Soho Park and Land Company, is the owner of the tract of land upon which it is proposed to erect a plant for the National Harris Wire Company (hereinafter called the National Company). The tract, which is in a section known as the Bellewood park section, was originally zoned for industrial purposes. In April, 1927, an amendment to the zoning ordinance was enacted which placed the tract in a residential zone. In May, 1927, the prosecutor applied to the building inspector for a permit to erect upon this tract of land a building for use as a wire factory. The inspector of buildings refused to award the permit, assigning as his reason that the zoning ordinance as amended placed the tract of land in a residential zone. The town of Belleville had created a board of adjustment under the act of 1924 (Pamph. L. 1924, p. 324), and the act of 1926. Pamph. L. 1926, p. 526. A hearing was had before the board of adjustment. It was shown that the prosecutor intended to sell the tract to the National Company provided a building permit could be obtained.' The National Company was to erect and use the building as a wire factory. The tract of land upon which it was proposed to erect the factory was suitable only for industrial purposes, for which, as has been stated, it was first zoned. On September 30th, 1927, the board of adjustment rendered its decision. The board ordered that a permit be granted. This permit was to be accompanied by certain conditions which will be referred to in a companion case.

This action of the board of adjustment appears to have been displeasing to the board of commissioners. The result was the passing of a resolution by the board of commissioners instructing the building inspector not to grant the building permit notwithstanding the action of the board of adjustment. This action was taken against the advice of the solicitor for the town of Belleville. One of the commissioners at the meeting of the board of commissioners stated that he had not expected such an opinion from the town attorney as in all other cases where parties had tried to vary the requirements of the zoning ordinance the board had instructed the attorney to fight in court. This had been done in many cases, knowing ahead of time that the town had little chance of winning, but always endeavoring to prolong the decision of these cases. He further stated that he was in favor of fighting the present case in the courts and compelling the National Company to go to court to get its permit. The purpose of the present writ of certiorari is to set aside this action of the board of commissioners in directing the building inspector to defy the order of the board of adjustment.

The board of adjustment acted entirely within the provisions of the law respecting such tribunals. Its action was gwasi-judicial. It considered the entire question. It believed that the prosecutor’s land was only fit for industrial purposes. It had been so zoned up to a month before the time of the prosecutor’s application for a permit to erect the factory for the National Company. The land was fit for industrial purposes. It was not fit for residences. The board of adjustment, it seems to us, took a sensible and rational view of the situation. A factory would he a benefit to the town. To refuse such a use for land suitable only for industrial purposes would amount to a practical confiscation of the land. The law placed the matter within the control of the board of adjustment. It was a board recognized by the statutes mentioned. It had jurisdiction over the subject-matter. Its action could not he set aside by the hoard of commissioners of the town. The statutes gave no power to the hoard of commissioners to reverse the finding and action of the board of adjustment.

The action of the board of commissioners was also taken without notice to the prosecutor, and, consequently, without an opportunity for the prosecutor to he heard before the action was taken. This vitiates the action taken.

The resolution passed by the board of commissioners was illegal and void. It is set aside, with costs. This opens the way for the issuance of a building permit.


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    SOHO PARK AND LAND COMPANY, PROSECUTOR, v. THE BOARD OF ADJUSTMENT OF THE TOWN OF BELLEVILLE ET AL., RESPONDENTS.
    Submitted January 27, 1928
    Decided June 29, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Whiting & Moore.

    For the respondents, John B. Brown.

   Per Curiam.

This case is before this court on a writ of certiorari bringing up for review an order of the board of adjustment of the town of Belleville made on September 20th, 192?. This order directed the issue of a permit by the inspector of buildings of the town of Belleville. The prosecutor had been denied an application for a permit to erect a one-story concrete block building to be used for a wire factory. The tract of land upon which it was proposed to erect the building had been zoned for industrial purposes. It was fit only for such purposes. For some reason the zoning ordinance had been amended about a month prior to the application of the prosecutor for a building permit to erect a factory building so that the tract of land was included in a residential zone. Upon appeal to the board of adjustment the board of adjustment granted the permit. Annexed to the grant of the permit certain conditions were imposed upon the prosecutor. The purpose of the proceeding in the present case is to consider whether or not the imposition of these conditions was within the power of the board of adjustment. The prosecutor contends that the conditions are either impossible for it to perform or are unreasonable, and, hence, void, and should be exscinded from the permit. These conditions are as follows :

"1. That the building specified in the application and any subsequent buildings to be erected on the plot to be occupied only by the National Harris Wire Company and be used solely as a wire factory.

“2. That the north, east and west facades of the proposed building to be of face brick with stone trimming, elevation drawings of same to be submitted 'to the board of adjustment for approval; the elevation drawings of any subsequent buildings on this plot to be submitted to the board of adjustment for approval.

“3. That large trees be planted along the north lot line of the plot, the number and type of trees to be approved by the board of adjustment.

“4. That the plot of ground within one hundred feet radius of the Belwood park station be retained in the B residence zone, in which no factory buildings will be erected.”

It would seem upon first thought that the prosecutor was not entitled to the relief which it seeks and that it would have to take the permit with the conditions imposed. Upon further consideration, however, we have reached the conclusion that this court has the power to exscind such conditions from the order as we think unreasonable. Dubelbeiss v. West Hoboken, 82 N. J. L. 683.

The first of the above conditions is a restraint upon alienation. No one can foresee whether a business is going to be successful or not. If the business of the wire company was not successful it might be necessary that the property be sold. The condition imposed would affect its value. We think the condition unreasonable and that it should be exscinded.

The second condition is one imposed for aesthetic purposes. A board of adjustment, in our opinion, has no power to impose such a condition. It is unreasonable and this provision should be exscinded.

This is likewise true of the third condition relative to the planting of large trees on the north line of the lot. We deem this condition unreasonable and it should be exscinded.

The fourth condition is a roundabout method of creating a park at the expense of the prosecutor. We deem this likewise unreasonable and this condition should be exscinded.

With those modifications the order of the board of adjustment is affirmed. No costs will be awarded to the prosecutor.


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    GEORGE GROSSMAN, RELATOR, v. MAYOR AND ALDERMEN OF JERSEY CITY, RESPONDENTS.
    Submitted January 27, 1928
    Decided June 29, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Levitan, Levitan & Auerbach.

    For the respondents, Thomas J. Brogan.

   Per Curiam.

This case is presented on a rule to show cause why a peremptory or alternative writ of mandamus should not issue directing the issuance of a permit to the relator to construct a building in the city of Jersey City. On May 17th, 1927, the relator made application for the erection of a building for an automobile salesroom and garage near the corner of Bergen and Highland avenues, in the city of Jersey City. On May 24th, 1927, a resolution was introduced at a meeting of the board of commissioners of the city °of Jersey City granting the permit upon the condition that the plans for the said structure comply with all the requirements of the building laws of Jersey City. This resolution was adopted. Between May 24th, 1927, and July 5th, 1927, the relator entered into obligations for the tearing down of the old and unoccupied buildings upon the tract of land and for the erection of the new building to the amount of $70,000. On July 5th, 1927, the resolution granting the permit was rescinded by the board of commissioners of Jersey City. The ground of rescission was that property owners on Highland avenue upon further investigation had learned that the building was to be used for the storage of automobiles. The rescinding resolution recited that the board of commissioners found as a fact that the erection of the structure would increase the fire hazard in the community and would otherwise be detrimental to the general welfare of the community in that neighborhood. No question of zoning was raised. The proposed building seems not to be prohibited by the zoning ordinance of Jersey City.

The relator insists that after one is granted a permit and has acted upon the same and incurred obligations thereunder, the permit cannot be revoked, citing the case of Peerless Oil Co. v. Hague, 4 N. J. Mis. R. 147, 148, and the case of Montefiore Cemetery Co. v. Newark, 3 Id. 1104. We have reached the opinion that there is sufficient merit in this contention to warrant the allowance to the relator of an alternative writ of mandamus. While depositions have been taken, under the rule, there are some matters which seem to remain as yet in dispute and upon which further testimony can be taken. For this reason a peremptory writ will not be awarded.

An alternative writ of mandamus is, accordingly, awarded to the relator. Costs will abide the determination of the case.


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    LOUIS C. LEHMANN, Jr., RELATOR, v. WILLIAM T. KALTENBACH, BUILDING INSPECTOR, RESPONDENT.
    Submitted January 27, 1928
    Decided June 29, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relator, Martin P. O’Connor.

    For the respondent, Edward Nugent.

   Per Curiam.

This case is before this court on a rule to show cause why a writ of mandamus should not issue directing the building inspector of Elizabeth to issue a permit to the relator for the erection of a frame building with stucco finish, one story in height, to be used for store purposes, upon a lot located at No. 25 Chilton street, in the city of Elizabeth. It is a zoning case. The zoning ordinance of Elizabeth prohibits stores in residence B district, which is the district in which the relator’s property is located. After the refusal of the building inspector to grant the permit an appeal was taken by the relator to the board of adjustment. The board of adjustment refused to issue a permit. The relator then applied for and was granted a writ of certiorari to review the proceedings of the board of adjustment. This case was presented to this court and is number 269 of the January term, 1928. In that case the action of the board of adjustment in refusing to issue the permit has been held to be proper.

This decision is a.bar to the prosecution of the mandamus proceedings instituted in the present case. The proper remedy to review the action of the board of adjustment was by certiorari. This case having been disposed of adversely to the contention of the relator in the present case, the rule to show cause allowed in the present case will be discharged, with costs.


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    LOUIS C. LEHMANN, Jr., PROSECUTOR, v. EDWARD HERSH ET AL., RESPONDENTS.
    Submitted January 27, 1928
    Decided June 29, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Martin P. O’Connor.

    For the respondents, Edward Nugent.

   Per Curiam.

This case is before this court upon a writ of certiorari. The writ brings up for review the action of the board of adjustment of the city of Elizabeth with reference to an application made by the prosecutor to the building inspector of the city of Elizabeth for a permit to erect a building to be used for store purposes in a district zoned as a residential zone. It is a companion ease to number 270 of the January term, 1928, where the facts have been more fully set out.

The prosecutor relies upon the case of Ignaciunas v. Risley, 98 N. J. L. 712, and the cases which followed this case. Since these decisions were rendered the constitutional amendment with reference to zoning has been adopted and the legislature has exercised the power conferred upon it by the constitutional amendment to legislate on this subject. The effect of the constitutional amendment and the legislation enacted in pursuance thereof has been fully considered by this court in the case of Koplin v. Village of South Orange, 6 N. J. Mis. R. 489. There is nothing in the facts in the present case, as set forth in the stipulation contained in the record, which makes the application of the present laws and ordinance unreasonable. The action of the board of adjustment is, accordingly, affirmed, and the writ of certiorari dismissed.


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    WILLIAM A. McALLISTER ET AL., RELATOR, v. FRANK B. MOFFETT, BUILDING INSPECTOR, ET AL., RESPONDENTS.
    Submitted January 27, 1928
    Decided June 29, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the relators, Earl A. Merrill.

    For the respondents, Paul Q. Oliver.

   Per Curiam.

This case is before this court upon a rule to show cause why a peremptory or alternative writ of mandamus should not issue out of this court directing the respondents to issue to the relator a permit for the alteration of a dwelling house located at 141 Harrison avenue, in the town of Westfield. The relator applied to the building inspector for a permit to alter the dwelling house. The building inspector refused to grant the permit on the ground that he could not see any good reason for the proposed change except to change the building from a one-family house into a two-family house. The tract of land upon which the building is erected is in a residence district known as class “A” in which a dwelling for •one family only can be used. The zoning ordinance does not prohibit any particular construction. It goes to use only. Because a dwelling house by reason of alterations might be made use of as a two-family dwelling house is not, in our opinion, sufficient ground for the refusal of a permit. The refusal infers that an unlawful use is intended. It might be that a perfectly lawful use is intended. If, after the alteration was made, there was an attempt to use the property as a two-family house in violation of the zoning ordinance, such a use could be prevented by appropriate procedure.

The respondents claim that this is a zoning case and that the remedy of the relator is to apply to the board of adjustment of Westfield. We do not take this view. The functions of a board of adjustment are to modify the application of the provisions of a zoning ordinance where the clear intention is to erect upon a tract of land something forbidden under the provisions of the zoning ordinance. This the relator contends he does not propose to do. Unless it is conclusive^ shown, which it is not in the present case, that the zoning ordinance is to be violated by the erection of the proposed building, then the board of adjustment has no jurisdiction.

All of the facts relating to the controversy seem to be included in the record presented to us. There appears to be no need of further elucidation of the facts. A peremptory writ of mandamus is awarded.

If a review of this decision is desired a rule allowing and directing the molding of the pleadings to attain that end is hereby allowed at the instance of the party desiring the review.


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    WILLIAM F. GASTON, PROSECUTOR, v. FRANK I. ACKERMAN ET AL., RESPONDENTS.
    Submitted January 27, 1928
    Decided June 29, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Humphreys & Sumner.

    For the respondents, Ward & McGinnis.

   Per Curiam.

This ease is before this court on a writ of certiorari. The writ brings up the proceedings before the board of appeals (also referred to as the board of adjustment) of the city of Passaic, respecting the issuance of a permit to one Louis Stein, to erect an apartment house on Lexington avenue, in the city of Passaic. The prosecutor is the owner of property situated on the northeast corner of Lexington avenue and Harrison street, in the city of Passaic, upon which there is erected a one-family dwelling. Adjoining the prosecutor’s property is the property of Anna E. Gaston, located on the easterly side of Lexington'avenue. The property has a frontage of fifty feet and there is erected thereon a one-family dwelling house. Adjoining the property of Anna E. Gaston on the north are the premises owned by Louis Stein.

On September 15th, 1927, Louis Stein made an application to the supervisor of buildings of the city of Passaic for a permit to erect a four-story apartment house with accommodations for forty-five families and a janitor. The application was refused by the supervisor of buildings on the ground that the zoning ordinance of the city of Passaic prohibited anything but buildings two and one-half stories in height and used for a one housekeeping unit to be built upon the property of Stein. On the day of the refusal to grant this permit Stein applied to the board of appeals or board of adjustment. This board then granted the application of Stein. The prosecutor then applied for and obtained the 'present writ of certiorari for the purpose of reviewing the action of the board.

The record shows that when Stein made his appeal the case was referred to a committee. Objections to granting the permit were filed. A hearing on the appeal was had at which evidence was submitted. No determination was then made, but the matter was adjourned from time to time until December 6th, 1927. At a meeting held on this date there were present three of the five members of the board. Two were absent. A resolution was introduced which, after certain recitals, resolved that the appeal of Stein be approved. This resolution was signed by all the members of the board. Two added before their names the word “no” and three added before their names the word “yes.” The ordinance under which the meeting was held provided that a quorum shall consist of four members. There was, therefore, no quorum present at the time the resolution was adopted. After the adoption of the resolution a permit was issued. The roll call showed three voting for the permit and two members absent.

The first contention of the prosecutor is that the action of the board of adjustment was illegal because no quorum was present. We think this position well taken. In order to constitute a legal meeting it was necessary _ that four members be present. Four members were not present, and, although a majority of the full membership voted for the resolution, yet a valid resolution could not be passed at a meeting which was not legal for lack of a quorum.

We think it unnecessary to consider the other point raised and argued, namely, as to whether a decision not rendered within sixty days from the time of the notice of appeal as required by chapter 203 of the laws of 1927 is valid. For the reason to which we have referred the action of the board of adjustment in granting the permit will be set aside, with costs.


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    WILLIAM F. GASTON, PROSECUTOR, v. FRANK I. ACKERMAN ET AL., RESPONDENTS.
    Submitted January 27, 1928
    Decided June 29, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the motion, Ward & McGinnis.

    Contra, Humphreys & Sumner.

   Per Curiam.

This is a branch of case number 278 of the January term, 1928. Number 278 was presented to this court upon a writ of certiorari for the purpose of reviewing the action of the board of appeals or board of adjustment of the city of Passaic with reference to the granting of a permit to Louis Stein to erect an apartment house upon a certain tract of land in the city of Passaic zoned for a one-housekeeping unit. The present case is a motion to vacate the allocatur to the writ in case number 278. There are three grounds upon which this motion is based. These in the notice of motion are stated as follows:

"1. That the prosecutor has no personal or property interest in the action or proceedings brought up by the writ so as to entitle him to prosecute the certiorari.

“2. That a review of the decision of the board of adjustment of the city of Passaic brought up by the writ in this case would afford no relief to the prosecutor in view of the issuance of the permit by the building inspector.

“3. Because by the affidavit filed in the cause, the prosecutor does not show that he is entitled to the relief sought.”

We are of the opinion that the first contention is not well founded. The prosecutor owns a tract of land upon which there is a one-family dwelling upon the same street and in the same residence zone as the tract on which it is proposed by Louis Stein to erect the apartment house to accommodate forty-five families and a janitor. We think that the prosecutor has such a property interest as entitles him to raise the question as to the right of the board of appeals, or board of adjustment, to grant to Stein the building permit which it is contended is violative of the provisions of the zoning ordinance of the city of Passaic.

We see no force in the second point upon which this motion is based. If the allocatur were vacated upon this ground it would mean that in every such case in which a permit has been issued there could be no review of the proceedings under which it was issued.

We are of the opinion that the affidavit of the prosecutor shows that he is entitled to have the proceedings of the board of appeals, or board of adjustment, reviewed. In this respect his position has been strengthened by the legislation contained in chapter 274 of the laws of 1928, which is fully considered in the case of Koplin v. South Orange, 6 N. J. Mis. R. 489.

The motion to vacate the allocatur is denied, with costs.


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    NORTHERN NEW JERSEY OIL COMPANY, PROSECUTOR, v. BOARD OF ADJUSTMENT OF THE CITY OF NEWARK AND THE CITY OF NEWARK, RESPONDENTS.
    Submitted January 27, 1928
    Decided June 29, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutors, Thomas Brunetto.

    For the respondents, Jerome T. Congleton and J. Harry Henegan.

   Per Curiam.

This case is presented to this court on a writ of certiorari. The writ brings up for review the action of the board of adjustment of the city of Newark in affirming the refusal of the superintendent of buildings of the city of Newark to grant to the prosecutor a permit for the erection of a gasoline service station in the city of Newark at the southwest corner of Broad street and Lincoln Park, known as Nos. 1075-1079 Broad street. The prosecutor is a lessee of the premises mentioned. It made an application to the superintendent of buildings of the city of Newark for a permit to erect a gasoline service station.. The superintendent denied the application upon the ground that the granting of the permit was forbidden by the zoning ordinance of the city of Newark, adopted December 31st, 1919. Upon the refusal of the superintendent of buildings to grant the permit the prosecutor appealed to the board of adjustment. A hearing was had before that board and a resolution was adopted by the board of adjustment denying the application, and affirming the action of the superintendent of buildings. The prosecutor then applied for and obtained the present writ of certiorari.

The proposed location for this service station is at a point of heavy traffic in the city of Newark. Many automobiles pass and repass the premises making the turn from Broad street west and from Lincoln Park into Broad street. It is a dangerous place. Bus routes terminate there. Lincoln Park is used as a playground for children. These matters undoubtedly were determining factors in the refusal of the superintendent of buildings and of the board of adjustment to grant this permit.

The prosecutor contends that there is no legal warrant by which the action of the board of adjustment can be upheld. We have reached the opposite conclusion. The ordinance in ■question provides that in a business district, and as a matter of fact the location in question is in a buisness district, although technically styled a mixed business and residential district, no building shall be erected which is intended to be used as a garage or group of garages except after public hearing. One of the powers of the board of adjustment is also to hear and decide special exceptions to the terms of the ordinance as follows: “Permit in a business district for the construction, extension, alteration or completion of a building intended for the storage of motor vehicles or motor vehicle service station, or gasoline service station, except as prohibited in section 6a.”

The contention of the prosecutor is that the prohibition against garages does not apply to a gasoline service station. The word garage has been adopted into the English language from the French. It means “a station in which motor cars can be sheltered, stored, repaired and made ready for use.” Until a few years ago the gasoline service station was not known. The service now rendered by it was to be found only at garages. There are different kinds of garages. At some machines can be furnished with gas and oil. At others repairs are made. At others cars can be stored or hired. All those places are referred to as garages. In yiew of the fact that gasoline would be furnished at the building which the prosecutor desires to erect, we deem that it is a garage within the meaning of the ordinance. Upon this ground we think that the action of the board of adjustment should be affirmed.

There are other questions which are raised in the present proceedings. We feel that it is not necessary to decide them. It should, perhaps, be said that the location of the place is such that the action of the superintendent of buildings and the board of adjustment seems warranted in the interest of public safety. The action of the board of adjustment is affirmed and the writ of certiorari dismissed, with costs.


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    BENJAMIN HARRIS, ADMINISTRATOR AD PROSEQUENDUM, PLAINTIFF, v. JOHN A. JOHNSON, DEFENDANT.
    Argued January term, 1928
    Decided July 2, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the plaintiff, John P. Lloyd.

      Contra, Stokes, McDermott & Hartshorne.

   Per Curiam.

The ease was tried in the Monmouth Circuit, and resulted in a verdict for six cents for the plaintiff. The material facts were that the plaintiff’s intestate met her death while riding in an automobile, which was driven off the highway into a tree stump by the defendant.

The only reason assigned for the rule is that the damages are inadequate. The deceased was thirty-one years old. Her husband was forty-one years old, and both enjoyed good health. The deceased had been employed up to the time of her death at a Keyport hotel, and earned $20 weekly. The husband was an oyster opener by trade, and for some months prior to his wife’s death had been employed on Long Island.

The husband paid his own board and sent his wife from $20 to $25 weekly. Together, as tenants by entirety, they owned a home and some lots encumbered by a building and loan mortgage of $3,100. The building and loan dues, as well as some installment payments on the furniture, were paid by the wife from the joint earnings.

The court charged the pertinent parts of the Death act on damages, but also said, “If after examining the evidence you are unable to say how much he has lost in a financial way, by reason of his wife’s death, * * * should you be unable to answer that question intelligently so as to translate it into dallars and cents, then there would be only one thing for you to do, and that would be to return nominal damages, or, as we commonly say, six cents.”

We think the jury may have misconstrued this language, which is substantially correct as a legal statement, and concluded that their verdict should be limited entirely to the record evidence. But the rule is laid down that “the jury must weigh probabilities, and to a large extent form their estimate of damages from conjectures and uncertainties.”

In Miller v. New Amsterdam Gas Co., 94 N. J. L. 508, the Court of Errors and Appeals declared “it is this preponderance of the aggregate probabilities, judicially termed the weight of the evidence, which furnishes the legal standard of proof in civil causes.”

We think the rule should be made absolute as to damages only.