text:
    AMERICAN SHOPS, INC., PLAINTIFF-RESPONDENT, v. AMERICAN FASHION SHOPS OF JOURNAL SQUARE, INC., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 23, 1951
    Decided May 8, 1951.

      Before Judges MoGeeiian, Jayne and Wm. J. Brennan, Je.

      Mr. Isadora Glauberman argued the cause for appellant.

      Mr. Thomas J. Brogan argued the cause for respondent (Mr. Louis Dworetz, attorney).
   The opinion of the court was delivered by

Jayne, J. A. D.

A lecturer on the subject which is identified in the law as “Unfair Competition” once asked a student for his conception of the subject. The student replied: “Well, it seems to mo that the courts try to stop people from playing dirty tricks.” It is difficult to discover in the. many adjudications a definition more satisfactory. The theme is said to exemplify the embodiment in the law of the ancient rule of the playground—-“Play fair.” There is the expression: “The law will not permit the trespasser to take the crop away from the sower.”

More specifically, Lord Chancellor Ualsbury remarked: “Nobody has any right to represent his goods as the goods of somebody else.” The English nicknames, “passing off” or its equivalent “palming off,” although expressive of the rationale of the early cases, are no more definitive today than our name “unfair competition.” The American Law Institute has preferred to employ the appellation “unfair trade practices.” However, it becomes apparent that there is no fetish in the word “competition.” The invocation of equitable relief rests vitally upon the element of unfairness. It is at once acknowledged that a detriment to one’s business which is wholly incidental to fair and lawful competition is damnum absque injuria.

Relatively few cases implicating acts which would now be considered as actionable under the rules of unfair competition were decided in England or in America prior to 1850. Since then, due partly to the flexibility of equitable relief and partly to the changes in business methods and standards of commercial morality, the scope of this field of litigation has constantly expanded.

No catalogue exists of all acts which constitute unfair competition. No prophet has undertaken to foretell what acts will be held to constitute unfair competition in the future, because equity broadly concerns itself with the suppression of injurious deception and fraud whatever the means by which they are wrongfully accomplished. It must be realized that injunctive relief is not confined to the protection of those having trade-marks and trade-names. It reaches beyond to encompass all cases in which it is evident that fraud and deception are practiced by one in disparaging or capturing the trade of a competitor. The ingenuity of the unfair competitor thus eludes classification but not always the restraint of a court of equity.

Gradually the list of adjudicated unfair acts grows; gradually the legal concept of fairness becomes more elastic, for as Lord Holt forewarned, “if men will multiply injuries, actions must lie multiplied too. * * *”

Assuredly the most common form of unfair competition is the imitation of a trade-name, trade symbol or device by a competitor. It is emphasized by counsel for the appellant that this is not a trade-mark ease. An examination of the decisional law in its development during the past half-century discloses that trade-mark infringement' and unfair competition have been almost amalgamated. The similarity between them in many instances is obvious. In both, the defendant is likely passing off his goods as the plaintiff’s goods by the use of a symbol. Deceit may be noticed to drip out of both kinds of imitation. And so, Mr. Justice Pitney in Hanover Star Milling Co. v. Metcalf, 240 U. S. 403, 412 (1916) stated: “This essential element is the same in trademark cases as in cases of unfair competition unaccompanied with trademark infringement. In fact, the common law of trademarks is but a part of the broader law of unfair competition.”

True, the struggles of some judges and lawyers to magnify a distinction between technical trade-marks and devices which were protected for their secondary meaning are discernible in the reported cases, but it is also observable that for the most part the difference has made no difference. ' Whatever the tort was named, the judicial protection afforded against it was substantially the same.

It is so, that' the distinction between descriptive and non-descriptive words is recognized. The criterion of whether a given brand is a trade-mark or trade-name is after all etymological. A trade-mark must be fanciful, arbitrary, unique, distinctive, non-descriptive, whereas words descriptive of qualities or attributes, generic designations, personal, partnership, and corporate names, geographical terms, and the like are trade-names. Trade-marks are protected in a suit for infringement, trade-names in an action to restrain “passing off,” “palming off,” or other more modern forms of unfair competition. Although the decisions are not unanimous, it may now be confidently stated that the trade-name cases tend so closely to approximate the trade-mark cases that the supposedly sharp line of demarcation is being substantially extinguished except with regard to the scope of the protection accorded. In a non-teehnical sense the trade-name is the trade-mark augmented by secondary meaning.

The issue of free competition is sometimes raised where the protection of fair competition requires restrictions on someone’s use of a word in an unusual sense which is not literally descriptive. The use of such words may nevertheless in proper circumstances be protected from a deceitful use in competitive trades. Eor example, Ivory soap is not made of ivory. There is no gold in Gold Dust washing powder, or in Gold Medal flour. Old Crow whiskey is not distilled from old crows. There is no bull in Bull Durham tobacco. White Rock is in fact water.

It 'is now the established law that such a word or associated words may by usage and popular acceptance acquire a secondary, special or, shall we say, trade meaning, as indicative of the identification of the goods, business, or services of the user and therefore entitle such person or corporation to protection against an unfair and deceptive usage by another. 1 Nims, Unfair Competition and Trade-marks, ch. IV, p. 152; 52 Am. Jur., Trade-Marks, Trade Names, Sc., 554, sec. 72.

So also where a geographical name has become the generic designation of a business or product, the courts have been alert to recognize the circumstances of the particular case and have not hesitated to grant often times precisely the same relief that would be conferred in trade-mark cases. American Waltham Watch Co. v. United States Watch Co., 173 Mass. 85, 53 N. E. 141 (Sup. Jud. Ct. 1899), is in this respect intructive. Cf. Polackoff v. Sunkin, 115 N. J. Eq. 134 (E. & A. 1934), anent the use of the trade-names “New Jersey Malt Supply” and “New Jersey Malt Products Co.” See, too, American Automobile Association v. Automobile Association of New Jersey, 142 N. J. Eq. 673 (E. & A. 1948). The word “American” was also implicated in the following decisions: American Clay Mfg. Co. v. American Clay Mfg. Co. of N. J., 47 A. 936 (Sup. Ct. Pa. 1901); Hamilton Shoe Co. v. Wolf Brothers, 240 U. S. 251 (1916)—“American Girl”; American Radio Stores, Inc., v. American Radio & Television Stores Corporation, 150 A. 180 (Del. Ch. 1930); R. W. Eldridge Co., Inc., v. Southern Handkerchief Mfg. Co.,, 23 Fed. Supp. 179 (U. S. D. C. T. 1938)—“All American”; American Oil Co. v. Norkus, 57 A. 2d 868 (Sup. Ct. Pa. 1948).

In eases in which the usage of descriptive words ordinarily freely afloat in the public domain is alleged to incite unfair competition, the inquiry envelops the question whether the plaintiff’s commercial employment of the words in the territory of his business has also infused them with a so-called secondary meaning.

Certainly, the words of our language are normally public property. The control of equity over words arises from the use which is made of them. They may be lifted from the public domain when their use has come to denote to the purchasing public the particular manufacturer or vendor.

Although universality of recognition of such an artificial trade-name is not required, its protection is largely governed by the area of its popularity which may be the selling zone or the advertisement or reputation zone.

Good-will is an intangible value. As an economic phenomenon it more or less fixes the competitive position of a business in the market; as a matter of accounting and appraisal it is an element of the valuation of a.business;. legally it represents a pecuniary interest recognized as a property right and, as such, entitled to protection. We wonder if it is not reasonable to state that while a business may attain various types of good-will depending upon the divergent spheres within which its reputation is established, its good-will after all inheres in how favorable the business is regarded by others. And so the intangible good-will has its origin and its existence largely in the visible symbols such as trade-marks, trade-names, and distinctive advertising, which constitute the attractive agency which brings in custom. Good-will, however, has no independent existence. It is necessarily attached to a business. What business ?

Perhaps there never was a time when good-will, so called in the language of the market place, has played a more important part in the theatre of commerce than it plays today. There never was a time when the means of advertising designed to create a good will were so various and highly developed as today. There probably never was a time when there were so many temptations to motivate the trade pirate to endeavor to purloin the good-will of others for his own profit.

At the root of it all is the fact that the law emancipates and, indeed, encourages fair, open, and honest competition. It endeavors to suppress and eradicate evil practices. Among such it interdicts a merchant from taking a fraudulent advantage of his competitors and of the purchasing public by dealing under false colors and thereby vending his own goods for those of his rivals. “That is not fair competition; it is closer akin to piracy,” said Justice Knapp in Miller Tobacco Manufactory v. Commerce, 45 N. J. L. 18, 24 (Sup. Ct. 1883).

Our attention has been invited by the briefs in the present appeal to numerous decisions of the federal courts. It will be recalled that since the decision of the Supreme Court in Erie v. Tompkins, 304 U. S. 64, in 1937, in which it was held that in cases which do not arise and implicate the Federal Constitution or federal statutory law, the federal courts must follow the local law, the reponsibility for the development of the fundamental principles applicable to unfair competition has been largely delegated to the state courts. The discussion will accordingly be resumed on our home grounds.

No one, we think, now doubts the power of a court of equity to restrain the deceptive and fraudulent use of a trade-name. Indeed, our former Court of Chancery has declared that where one knowingly adopts an existing trade-name which is actually misleading, the intention to mislead, in the absence of explanation, will be presumed. Eureka Fire Hose Co. v. Eureka Rubber Manufacturing Co., 69 N. J. Eq. 159 (Ch. 1905), affirmed 71 N. J. Eq. 300 (E. & A. 1906).

Vice-Chancellor Lane said, “Expressed briefly, I think the rule is that ‘unfair competition’ is ‘fraudulent conduct.’ ” Hilton v. Hilton, 89 N. J. Eq. 149, 154 (Ch. 1917), modified Id. 182 (E. & A. 1918).

However, the injunctive relief does not necessarily depend upon proof that one who uses a trade-name or slogan which interferes with another’s prior use of it, did so with a premeditated intent to injure his competitor or to deceive the public. The consequences of his act predominate over the quality of his motive in the determination of the court. Polackoff v. Sunkin, supra.

Our reports are alive with decisions relative to actions for alleged unfair competition. The following are representative: Wirtz v. Eagle Bottling Co., 50 N. J. Eq. 164 (Ch. 1892); International Silver Co. v. William H. Rogers Corp., 67 N. J. Eq. 646 (E. & A. 1905); Eureka Fire Hose Co. v. Eureka Rubber Mfg. Co., supra; Busch v. Gross, 71 N. J. Eq. 508 (Ch. 1906); O’Grady v. McDonald, 72 N. J. Eq. 805 (Ch. 1907); Rubber, &c., Co. v. Rubber-Bound Brush Co., 81 N. J. Eq. 419 (Ch. 1912), affirmed, 81 N. J. Eq. 519 (E. & A. 1913); Cape May Yacht Club v. Cape May Yacht and Country Club, 81 N. J. Eq. 454 (Ch. 1913); National Biscuit Co. v. Pacific Coast Biscuit Co., 83 N. J. Eq. 369 (Ch. 1914); Robert H. Ingersoll & Brother v. Hahne & Co., 89 N. J. Eq. 332 (Ch. 1918); Hilton v. Hilton, 90 N. J. Eq. 564 (E. & A. 1919); Bayuk Cigars, Inc., v. Fine, 112 N. J. Eq. 166 (Ch. 1933), affirmed, 114 N. J. Eq. 83 (E. & A. 1933); A. Hollander, &c., Inc., v. Philip A. Singer, &c., Inc., 119 N. J. Eq. 52 (Ch. 1935), affirmed, 120 N. J. Eq. 76 (E. & A. 1936); J. B. Liebman & Co., Inc., v. Leibman, 135 N. J. Eq. 288 (Ch. 1944); Weiss v. The Stork & Gift Shop, 137 N. J. Eq. 475 (Ch. 1946) ; Goldscheider v. Schnitzer, 3 N. J. Super. 425 (Ch. 1949).

We borrow from them a few apt quotations: “The jurisdiction of courts of equity to prevent injury from infringement of trade-names has been liberally exercised and applied in all circumstances whenever it appeared that the name was 'an established, distinctive and valuable adjunct to an undertaking, whether used to distinguish manufactured articles, a place of business, or a corporation, commercial, or one formed not for pecuniary gain. All that is required to bring into activity the injunctive powers of the court, is to inform it that the complainant’s trade is in danger of harm from the use of its name, by the defendant, in such a way, as is calculated to deceive the public into the belief that the defendant’s affairs, in the respect complained of, are those of the complainant.” Cape May Yacht Club v. Cape May Yacht and Country Club, supra.

Erom Weiss v. The Stork & Gift Shop, supra, we appropriate : “Rival merchants have no right, by imitative devices, to mislead prospective purchasers into buying their merchandise under the impression that they are buying that of their competitors, and the use of such devices or means may be enjoined. The law guards the trade name and good-will of a merchant, and thereby the public; against unlawful injury.

[T3] “One may not lawfully use a trade name as near the established name of another as to lead customers and the public to suppose that the establishment of the user is the establishment of the other or that the product sold is the product of the other.”

It is upon the aforementioned substructure that we proceed to construct our determination of the present appeal. Our examination of the evidence, however, is pursued with due regard “to the opportunity of the trial court to judge of the credibility of the witnesses.” Rules 1:2-20; 4:2-6.

The learned and experienced trial judge submitted two concordant memoranda of his conclusions. In the first he expressed in general his findings of fact: “The evidence in this case discloses that the plaintiff, American Shops, Inc., incorporated in 1932 and since that time has engaged in the sale at retail of men’s clothing and accessories. Its sole store is now and has been, during the period from 1932, located at 800 Broad Street, Newark. At this location, a large sign was erected, which prominently displayed the words ‘American’ in sizeable letters and the word ‘Shops’ in smaller letters.

“During the past ton years, plaintiff has advertised extensively in newspapers circulating in northern New Jersey, including Newark and Jersey City, and throughout Hudson and Bergen County communities. Likewise, it engaged in advertising by radio and television throughout the same area and in metropolitan New York.

“In all the advertising media, plaintiff stressed the name American Shops and the theme that stars of radio, moving pictures, the theatre and particularly of the sports world, wore and admired its type suits and clothes. Over the ten-year period referred to, in excess of $300,000 was expended on such advertising.

“As an incident of the emphasis on stars of stage, screen, radio and sports, and their interest in the clothes of American Shops, at times, down at least through 1948, in the advertisements, the ‘i’ in ‘American’ was dotted with a star, and stars dotted the advertisements themselves. In one copy used in 1947-1948, not only do stars appear but near the bottom of the advertisement a moving picture camera and a cameraman appear.

“Plaintiff’s store featured a rather distinctive, open-type front, with large glass windows and some palm trees that seemed to come from the base of the windows and extend at an angle toward the ceiling of the entranceway.

“The testimony indicates also that plaintiff had developed a mailing list of some 47,000 customers, and the estimate was given by its president that 8,000 of these customers were from Hudson County. The entire list was made up of persons who had made purchases at the store during the last seven years. How many times each person had purchased was not given.

“In 1944, plaintiff had in its employ one Murray Siegel as a salesman. His relations with plaintiff were severed in May 1944. On November 30, 1944, Siegel and Samuel Leyner filed a trade name certificate in the Hudson County Clerk’s Office, indicating that they intended to conduct the business of men’s and boys’ clothing at 339 Jackson Avenue, Jersey City, under the name American Eashion Shops.

“Prior to this time, Leyner had been operating the same type business in Jersey City under the name Eashion Outfitters.

“The Jackson Avenue shop began operation at the end of 1944, and has operated there ever since.

“On December 22, 1949, Siegel, Leyner and two others organized the defendant corporation under the name 'American Eashion Shops of Journal Square, Inc.’ and set forth that its purpose was to engage in the retail sale of men’s and boys’ clothing and accessories. Leyner became its President and Siegel, Vice-President.

“On March 8, 1950, the defendant corporation opened a store for such retail business at 2847 Hudson Boulevard, Jersey City, at Journal Square, which the testimony shows is one of the busiest sections of Jersey and which describes it as the 'hub of Hudson County.’ The opening of the store was preceded by a full-page advertisement in the Jersey Journal, which reported the ‘Grand Hollywood opening’ of ‘American’ in large script type, with a star over the ‘i’ in ‘American.’ Underneath this, in smaller block type appeared ‘Fashion Shops of Journal Square.’ Although this is part of the corporate title, which ends with ‘Inc.’, no ‘Inc.’ appeared in the advertisement to indicate that the reference was to the corporate title as distinguished from mere advertising matter.

“The advertisement further featured stars and invited the public to meet movie figures, models and sport celebrities at the opening. And it showed a moving picture camera and cameraman in the foreground. After this opening night, the defendant asserted that it never again advertised personal appearance of celebrities at its store. * * *

“Prior to the opening of the Journal Square store, defendant caused to be constructed a sign over and running the full width of the store, on which the word ‘American’ with a star fiver the ‘i’ occupied all but a small portion of the space. About on the same line as ‘American’ but in smaller block type appeared the word ‘Shops.’ Above ‘Shops,’ running obliquely from left to right as one faces the sign, the word ‘Fashion’ is set out, also in much smaller block letters and with three stars alongside it.

% ❖ :jc sH ❖ # ❖ sH

“Plaintiff seeks an injunction restraining the defendant from using the words ‘American Shops, Inc.’ as part of its title in its advertising or dealings wdth the public. It alleges that such use constitutes unfair and unlawful competition and an unlawful infringement upon its corporate name.

“In support of its claim for injunction, it has produced evidence from some of its Hudson County customers that the arrangement of defendant’s store sign, in conjunction with the design of the store, the type clothes carried, the ‘decor’ of the store as some of them put it, pictures of some celebrities in the store, and the tree or plants there, led them to believe that the defendant’s store was a branch of plaintiff’s store in Newark. Some witnesses merely noticed ‘American’ over the store and some, ‘American Shops.’ Others bought articles thinking they were dealing with plaintiff in a branch store. One person bought a coat in plaintiff’s store in Newark. Later, being in Jersey City when it was necessary to have a button replaced, he saw defendant’s sign and store, and believing the store to be a branch of the plaintiff company, he went in to see if the repair could be made there. Although he advised defendant’s sales-person of the fact of the purchase at the Newark store, no clarifying advice was offered. Instead, he was told that a set of buttons would be ordered for him. Another witness remarked to a salesman of defendant in the store that it was nice having a branch in Jersey City so the people did not have to go to Newark. To this the salesman made no reply.

“Proof' was also adduced to indicate that the confusion which plaintiff claims would and does take place in the mind of an ordinary member of the public because of the defendant’s conduct, exists in the trade itself. It appeared that a men’s costume jewelry manufacturer, with which both plaintiff and defendant do business, in filling plaintiff’s order, sent cuff links and tie clasps in jewelry boxes on one occasion, which had stamped inside ‘American Pashion Shops of Journal Square,’ and on another occasion, ‘American Pashion Shops of Newark.’

“The evidence showed further that Newton Steinberg, another former employee of plaintiff, opened a similar shop in Bayonne under the name ‘American Hollywood Shop.’ This man, who now has resumed employment with plaintiff, asserted that after he opened the shop, Siegel and Leyner protested against his use of the name. This occurred before the opening of the Journal Square store. Steinberg and his partner visited the Jackson Avenue place and discussed the matter with them. On this occasion, Siegel asked why they were using his firm name and Steinberg’s partner replied in effect that Siegel and Leyner were using a name similar to the plaintiff’s and if they could ‘get away with it,’ why couldn’t his shop. •

“The conclusion is inescapable that the format of the sign resulted from a desire to emphasize ‘American3 and ‘Shops.3 This conclusion is strengthened when it is recalled that the script writing of ‘American3 with the star dotting the ‘i3 was used by the plaintiff in its advertising in 1948 and prior thereto.

“Prom my own examination of the pictures of defendant’s sign, I am satisfied that an ordinary buyer of plaintiff’s goods might well be deceived into believing that defendant’s store was connected with the plaintiff.

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“Further, I am convinced that when the defendant decided to open, and did open, its Journal Square store, it embarked upon a course of wilful deception, the most glaring example of which was the store sign. By this sign, the preliminary advertising campaign and its disingenuousness in dealing with inquisitive customers and by other means, it sought to make the public bcieve that its store was a part of, or a branch of, the plaintiff’s Newark store. Plainly, the purpose was to take, what some of the literature in the field of unfair competition and trade regulation calls, a ‘free ride3 on plaintiff’s newspaper, radio and television advertising program.

“These conclusions warrant injunctive relief.”

We concur that there was abundant evidence with its productive inferences to justify those conclusions of fact.

The masquerade so cunningly contrived by the defendant clearly called for equitable intervention. Indeed, our statute, R. S. 14:2-3, ordains that “The (corporate) name shall not be one already in use by another existing corporation of this state, or so similar thereto as to lead to uncertainty or confusion.” Glucose Sugar Refining Co. v. American Glucose Sugar Refining Co., 56 A. 861 (Ch. 1899); Edison Storage Battery Co. v. Edison Automobile Co., 67 N. J. Eq. 44 (Ch. 1904); Eureka Fire Hose Co. v. Eureka Rubber Mfg. Co., supra.

The suggestion of laches as a bar to injunctive relief against the proposed continuance of acts of unfair ■ competition in the future is untenable in a case of this nature. Blue Goose Auto, &c., v. Blue Goose Super, &c., 110 N. J. Eq. 547 (E. & A. 1932); A. Hollander & Sons, Inc., v. Jos. Hollander, Inc., 117 N. J. Eq. 306 (Ch. 1934), modified 118 N. J. Eq. 262 (E. & A. 1935).

Nor has the plaintiff in the present action indulged in laches which disentitles it to an accounting for profits resulting from the deception. Although an account of profits will not ordinarily be taken where the wrongful use of the trade-name has been merely accidental, or without any actual wrongful intent to defraud a plaintiff or deceive the public, yet in no just sense can this defendant be said to have acted innocently or in ignorance of the plaintiff’s rights.

The mandatory provision in the judgment relative to the removal of the store sign is modified to conform more literally with the conclusions of the trial judge to read: “the defendant shall remove from its store sign the word ‘American’ now in use,” and so forth.

In all other respects the judgment is affirmed.


source: Caselaw Access Project

author: Dobtges, J. S. C.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM C. ELLIOTT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 30, 1951
    Decided May 10, 1951.

      Before Judges Ereu.\d, Dodges and Proctor.

      Mr. George A. Gray argued the cause for respondent (Mr. J. Victor Carton> Monmouth County Prosecutor, attorney).

      Mr. Edward W. Currie argued the cause for appellant.
   The opinion of the court was delivered by

Dobtges, J. S. C.

This is an appeal from a judgment of conviction entered in the Monmouth County Court.

The defendant was charged with two violations: operating a motor vehicle while under the influence of intoxicating liquor and knowingly leaving the scene of an .accident. He was originally tried before the recorder of Matawan Borough and found guilty on both charges. A fine of $200 and a 90-day jail sentence were imposed on the former offense and $100 fine and 30 days in jail upon the latter charge. An appeal was taken to the Monmouth County Court and a trial de novo was had. The trial court found defendant guilty of the drunken driving charge, but dismissed the other charge. He imposed a $500 fine and a 90-day jail sentence on defendant.

Defendant alleges that the evidence concerning his operation of the vehicle was not legally sufficient to support the conviction. He also urges that the sentence was unreasonable and unlawful.

The important facts of the case are substantially as follows: Between 4:20 and 4:30 p. m. on the day in question the defendant was in John’s Bar and Grill. Because of defendant’s condition the proprietor refused to serve him any intoxicating beverages. Thereafter, between 4:30 and 4:40 p. m., one Charles Ellison, Jr. observed a black car on the road in question, swerving from one side of the road to the other, and on two occasions it nearly went into the ditch. Ellison permitted the car to pass and noted the license number to be “ELK 42 B.” This was latex found to be defendant’s automobile license number. A short distance ahead, around a curve, Ellison found a dead child. One Ered Howard also saw a black car “zig-zagging” on the same road, within a few minutes of the time testified to by Mr. Ellison. Another witness for the State was a Mr. Heyer. lie testified that he saw a black V-8 Ford going “at a fast clip” pull into the defendant’s rear yard. There was one person in the car and he almost hit Heyer’s car. Officer McGowan testified that shortly thereafter, found the defendant drunk and slumped over the wheel of the car bearing the registration number which Ellison noted. The defendant was examined by a physician and found intoxicated and unfit to drive a motor vehicle.

It is, of course, necessary to a conviction of drunken driving, under B. 8. 39 :4-50, that there be sufficient evidence that the defendant was operating the motor vehicle at the time and place charged. While it is true that no one actually saw the defendant driving, it is clear by the chain of circumstances that the defendant was the operator. He was seen in an intoxicated condition, and subsequently his car was seen “zig-zagging” at the time and place charged and, thereafter, he was found drunk and slumped over the wheel with the motor running. This was shortly after the car was seen running into defendant’s rear yard “at a fast clip.” From a consideration of all the testimony, one cannot escape the logical conclusion to be drawn therefrom, to wit: that defendant was operating the automobile at the time and place charged. There is no question in this appeal as to defendant’s intoxication. The defendant did not see fit to take the stand and deny the testimony of the witnesses. There is no doubt that the State bore the burden of proving defendant’s guilt beyond a reasonable doubt.

With respect to the sentence imposed, we find it unnecessary to rule upon the State’s contention that this court is without jurisdiction to review the reasonableness of the sentence imposed below. Suffice it to say that on a trial de novo the court has the right to impose any sentence which the trial magistrate could impose. The sentence imposed was a legal sentence and the trial court properly exercised its discretion in imposing said sentence.

The judgment under review is affirmed.


author: Pee, Cubiaim:.

text:
    JOHN F. DONNELLY, PLAINTIFF-APPELLANT, v. SUSAN J. DONNELLY, DEFENDANT-COUNTERCLAIMANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 30, 1951
    Decided May 11, 1951.

      Before Judges McGeet-tan, Jayne and Wm. J. Beennan, Je.

      Air. Louis O. Friedman argued the cause for plaintiff-appellant {Messrs. Ward A Friedman, attorneys).

      Mr. Samuel A. Gennel argued the cause for defendantcounterclaimant-respondenf.
   Pee, Cubiaim:.

The husband sued for divorce on the ground of desertion and the wife counterclaimed for divorce on the same ground. The judgment of the Superior Court, Chancery Division, under appeal, dismissed the husband’s complaint and granted the wife’s counterclaim for divorce; awarded the custody of the infant child of the marriage to the wife, with visitation rights to the husband; ordered the husband to pay $10 per week to the wife for the support of the child; and ordered the husband to furnish a bond in the sum of $4,000 “conditioned upon the faithful performance of plaintiff’s obligations” under the judgment.

The first contention is that the court erred in failing to find that the wife deserted the husband. Examination of the record discloses that there was conflict in the evidence as to who was the deserter; indeed, this conflict is admitted by the plaintiff. While this court is authorized to make new or amended findings of fact, we are required to give due regard to the opportunity of the trial court to judge of the credibility of the witnesses. Bules 1:2-20 and 4:2-6. We are satisfied that there was sufficient evidence to support the trial court’s finding that the husband deserted the wife, and see no justification for disturbing it.

The next contention is that the wife’s counterclaim should be dismissed because there was no corroboration of her testimony. We find, as did the trial court, ample corroboration in the testimony of other witnesses and in the surrounding circumstances.

The provision of the judgment which orders the husband to furnish a $4,000 bond must be reversed. The Superior Court may, in its discretion, require reasonable security for the due observance of its order for the support of the child. R. S. 2:50-37, as amended, L. 1948, c. 320, § 25. Here, no application for security was- made. However, the court may, on its own motion, require reasonable security when the circumstances of the case warrant it. Cf. McDonald v. McDonald, 6 N. J. Super. 11 (App. Div. 1949). But we find no support in the record for a finding that security is reasonably necessary at this time, and no support for a finding that the amount of security required is reasonable.

The order requiring security is reversed and the judgment, as so modified, is affirmed.


author: Javnb, J. A. D.

text:
    HANS LEVY, PLAINTIFF-APPELLANT, v. KIDDE MANUFACTURING COMPANY. INC., DEPENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued May 7, 1951
    Decided May 15, 1951.

      Before Judges McG-eehan, Jayne and Wm. J. Beennan, Je.

      Mr. Edward 8. Miller argued the cause for appellant (Mr. Harry Adler, attorney). '

      Mr. William Gt. Bischof argued the cause for respondent (Messrs. Carroll, Taylor <& Bischof, attorneys).
   Tlie opinion of the court was delivered by

Javnb, J. A. D.

The controversial question engaging our consideration in the present appeal arises from the insistence of counsel for the plaintiff-appellant that the doctrine of res ipsa loquitur operated to raise an inference of the defendant’s negligence, thus presenting a factual issue which should have been submitted to the jury for determination. At the conclusion of the introduction of evidence at the trial, which occurred on November 30, 1950, the judge in the instant case directed the jury to render a verdict of no cause for action. But see Buie 3:50, amended November 10, 1949. Pursuant to the direction the verdict was rendered and a judgment entered for the defendant.

In its basic relationship to the point now debated, the factual-narrative derived from the evidence adduced on behalf of the plaintiff is interesting.

Sometime between the years 1940 and 1945 a merchant conducting a store in the city of Bridgeton, Cumberland County, for the sale at retail of hardware, housewares, and sporting goods, purchased from a distributor a carbonating vessel known as a “Soda King Syphon,” a product manufactured by the defendant. The merchant testified that upon its receipt he unpacked and examined it, and finding that it appeared to be in “perfect condition,” he placed it in a conspicuous position on one of the shelves in his store where it remained unused and uninjured until its sale with the associated package of carbon dioxide cartridges to the plaintiff on May 28, 1949.

In its external aspects the device resembles in size and shape the general appearance of a thermos bottle. It consists of two major parts. The bottom is designed to be filled with liquid. The top provides for the insertion of the charging-cartridge in a cylinder located inside. The syphon is completely assembled by engaging the threads of the top and bottom parts and by turning the top downward one and one-half revolutions. Accompanying the article were the following instructions for its use:

“How To Operate Your Soda King
1— Unscrew head of Syphon and fill bottle to the top with cold water—the colder the better.
2— Drop in four or five ice cubes. No more than five.
3'—Unscrew cap on charge holder inside of the head of the Syphon. (See figure B.)
4— Place a SODA KING Super-Charger in the charge holder with small end pointing out (see figure C). (CAUTION Use only SODA KING Super-Chargers.) Then screw back cap of charge holder. Do not use force; it is not necessary to screw cap on tightly.
5— Screw Syphon head on the bottle snugly so that both parts come together but do not use force. Do this with bottle standing on table or sink to avoid spilling. . ■
6— To puncture Super-Charger and to charge the Syphon push down charging button (marked A in figure D) with heel of hand (see figure E) ; or give button a tap with palm of hand. Some people find it easier to push charging button against edge, of kitchen sink or table. (See figure F.)
NOTE:—Charging does not start until pressure on button is released. You will then hear carbonating gas entering water which indicates that Super-Charger has been punctured..
7— Shake Syphon vigorously for 30 seconds so that carbonating gas and water are thoroughly mixed. THE SYPHON IS NOAV CHARGED.”

On the same day of its purchase the plaintiff upon returning home first carefully read the instructions and then “followed them to the letter.” The plaintiff testified that he screwed the top part and the bottom part “together tight.” With the syphon resting on the table, he pushed the button to puncture the cartridge, and almost immediately thereafter the top part of the syphon was suddenly expelled, striking the plaintiff in the face.

The plaintiff in May of 1950 presented the syphon in its condition existing immediately after the mishap to an expert for a critical examination. Called as a witness by the plaintiff, the expert testified: “When I received this soda cartridge and this syphon bottle I made a cursory examination and it appeared to me as an engineer that it had not suffered any damage at the time I got it.” He expressed the opinion that the syphon was well designed and stated that he did not discover any defect or imperfection in its construction. The threads bjr which the top and bottom of the container are attached were not distorted or deformed.

The expert then explained that he subjected the syphon to a series of tests. He ascertained that it required one and 8/16 oí a turn to engage completely the two parts of the syphon. He appropriately placed a scale around the syphon and pursued his tests by successively having the top and bottom parts in each instance 1/16 of a turn further apart, and it was not until the parts were 15/16 of a turn from tight that the top and bottom separated.

Then came the transcendent question: “Q. You did find out, did you, Mr. Sturges, when this bottle was operated in accordance with the instructions which were enclosed in it that it operated properly, is that correct ? A. Y es, sir.”

The evidence introduced by the defendant was confined to the fact that it had manufactured that type of syphon during the years from 1939 to 1941, 110,000 of them in all.

Counsel for the appellant relies heavily upon our decision in Alston v. J. L. Prescott Co., 10 N. J. Super. 116 (App. Div. 1950),. in which we discussed at some length the so-called doctrine of res ipsa loquitur. The factual backgrounds revealed by the evidence in that case and in the present one are significantly dissimilar.

It must be immediately recognized that it requires more than proof of the mere occurrence of an accident to set the rule of res ipsa loquitur in operation. Does the proof presented on behalf of the plaintiff in the present case do more than that?

The phrase res ipsa loquitur means “the thing itself speaks,” but what does the “thing” say? Somewhat broadly stated, the “thing” which speaks is the unusual occurrence, but it must “speak” of the reasonable probability that the injury sustained by the plaintiff was in all the circumstances due to a dereliction of duty on the part of the defendant. Bahr v. Lombard, Ayres & Co., 53 N. J. L. 233 (E. & A. 1890); Noonan v. Great Atlantic, &c., Tea Co., 104 N. J. L. 136 (E. & A. 1927); Dunn v. Hoffman Beverage Co., 126 N. J. L. 556 (E. & A. 1941); Kramer v. R. M. Hollingshead Corp., 5 N. J. 386, 392 (1950).

We must view the illustration of the present case as it was portrayed by the evidence offered on behalf of the'plaintiff. The representations are that the syphon was well designed and constructed. It was in perfect condition when received by the merchant at some time between 1940 and 1945. It remained in the charge and custody of the merchant until May 28, 1949. But moreover, no defects, structural weaknesses or deficiencies in its manufacture were discoverable in it after the accident. When used in conformity with the accompanying instructions of the manufacturer it operated properly.

Oddly we here face a case in which the plaintiff submitted uncontradicted evidence which excluded any reasonable inference that the defendant had.been negligent in the manufacture of the article and left only the inference that the accident was caused by the manner in which the plaintiff' himself prepared the contents of the syphon and assembled its parts.

In the Alston case we remarked {supra, at p. 124) : “Resipsa loquitur is certainly in all jurisdictions a common sense appraisal of the probative value of circumstantial evidence,, and it is true that circumstantial evidence is ineffectual where the circumstances are equally consistent with freedom-from wrong, and fail to reveal at least the probability that the particular injurious mishap would not have occurred without the culpable carelessness of the defendant. Vide, Galbraith v. Busch, 267 N. Y. 230, 234, 196 N. E. 36 (Ct. of A. 1935).”

Assuredly the creation of a mere opportunity to guess-the cause of the mishap is an insufficient basis for the invocation of the rule.

Moreover our courts have over a span of years uniformly said: “This principle is that when through any instrumentality or agency under the management or control of a defendant or his servants there is an occurrence, injurious. to the plaintiff, which, in the ordinary course of things, would not take place if the person in control were exercising due care, the occurrence itself, in the absence of explanation by the defendant, affords prim,a facie evidence that there was want of due care.” Mumma v. Easton and Amboy R. R. Co., 73 N. J. L. 653, 65 A. 208 (E. & A. 1906).

Again in the Alston case we stated: “The pivotal question appertains to whether in the present case the bottle continued to be under the management or control of the defendant at the time of the accident within the modernly expanded scope of the rule of res ipsa loquitur.”

While we recognized that “the progressive technological developments in modern times are introducing many new devices and operational methods which were unknown to past generations, thus broadening the field to which the applicability of the so-called doctrine is to be determined,” we also realized that the element of the defendant’s control over the instrumentality certainly at the time of the defendant’s inferential negligent act or omission must continue to be regarded as indispensable.

We conclude that the proofs in the present case fail to reveal at least the probability that the particular injurious mishap would not have occurred without the culpable carelessness of the defendant.

Judgment affirmed.


author: Per Curiam.

text:
    MURIEL BRYER DANDREA, PLAINTIFF-RESPONDENT, v. NATALE CENTOFANTE AND SUSIE CENTOFANTE, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued April 16, 1951
    Decided April 19, 1951.

      Before Judges MoGeehan, Jayne and Wit. J. Brennan, Jr.

      Mr. Dominick F. Pachella argued the cause for appellants (Mr. J. Chester Massinger, attorney).

      Mr. John F. Selser argued the cause for respondent (Messrs. Selser <& Shenierj attorneys).
   The opinion of the court was delivered

Per Curiam.

The plaintiff-respondent in conformity with the verdict of the jury has a judgment against the appellants in the sum of $15,000 awarded to her for the bodily injuries, consequential losses sustained,, and expenses incurred by her as a result of an automobile collision which occurred shortly after 12 o’clock on the morning of November 21, 1949, at the intersection of Knickerbocker Boad and Hudson Avenue in the City of Englewood, Bergen County.

The application of the defendants for a new trial was denied by the trial judge, and the only question introduced for consideration by the present appeal pertains to the alleged excessiveness of the damages awarded to the respondent by the jury. Her pecuniary losses and expenses amounting in the aggregate to $1,750 are not in controversy, although there is some proof that the total losses of earnings and expenses amounted to $2,027.

The admeasurement of compensatory damages in actions for the injurious consequences of personal torts is not gauged by any established graduated scale. In our procedure the appraisal is entrusted to the sound discretion of the jury. Thus it has long been the practice of our courts io refrain from interfering with a verdict on the mere ground of excessive damages unless the award is manifestly unsupported by the evidence and obviously unjust. Vreeland v. Berry, 21 N. J. L. 183, 187 (Sup. Ct. 1847); Salvato v. N. J. Asphalt & Paving Co., 135 N. J. L. 185, 189 (E. & A. 1947).

And then, too, “In these days of the high cost of living and consequent decrease in the purchasing power of the dollar, one cannot well overlook or ignore the effect of such economic conditions when called upon, to determine, as the jury did here, the amount of damages that would fairly and reasonably compensate one for his pain and suffering and disability proximately caused by another’s negligence.” Nusser v. United Parcel Service of N. Y., Inc., 3 N. J. Super. 64, 69 (App. Div. 1949). Certainly an inordinately exorbitant allowance of damages cannot be permitted to stand.

The injuries suffered by the plaintiff were relatively severe. She received a concussion of the brain of sufficient intensity to render her in a state of semi-consciousness for several days. Plasma was furnished. The fracture of the femur of her right leg was complete and so comminuted as to require an open surgical operation to accomplish its reduction. The use of a metal plate with seven screws was required. The injured limb was encased in a east which extended from her foot to above her waist, immobilizing her body in a supine position until March 2, 1950. .Until the removal of the cast on March 2, 1950, she experienced constant pain in her fractured leg. The concussion as it abated caused a temporary dizziness.

Additionally, some of her teeth were loosened; there were lacerations on the inside of her lower lip and on her head. She was confined in the hospital until December 18, 1949. Eventually she was able at home to move about with the aid of crutches and cane until her substantial recovery on April 20, 1950.

The injurious consequences of a permanent character are some impairment of memory, some atrophy of the muscles of the right leg causing a slight limp and producing an estimated disability of 15 per cent in the normal use of the limb, and the scars resulting from the surgical operation on her leg and from the lacerations of the lip and head. The scars on the head are concealed by her hair. The sear on her leg is approximately eight inches in length. The scar tissue on the inside of her lower lip has taken the form of a lump.

Our independent review of the record has been made with due regard to the denial by the trial judge of the defendants’ motion for a new trial and to the opportunity of the trial court and the jury to pass upon the credibility of the witnesses.

It does not clearly and convincingly appear that the verdict returned by the jury was the result of mistake, partiality, prejudice, or passion. Gelsmine v. Vignale, 11 N. J. Super. 481, 487 (App. Div. 1951).

Affirmed.


author: William J. Brennan, Jr., J. A. D.

text:
    IN THE MATTER. OF THE APPLICATION OF DAVID TIERSON GRAHAM, FOR WRIT OF HABEAS CORPUS.
    Superior Court of New Jersey Appellate Division
    Argued April 23, 1951
    Decided May 2, 1951.

      Before Judges McGeehan, Jayne and Wii. J. Brennan, Jr.

      Mr. Arthur S. Lane argued the cause for appellant, State of New Jersey (Mr. Mario H. Volpe, Prosecutor of Mercer County, and Mr. Theodore D. Parsons, Attorney-General, attorneys; Mr. Eugene T. Urbanialc, Deputy Attorney-General, and Mr. Franlc Lawton, Assistant Prosecutor, on the brief).

      Mr. Robert E. Dietz argued, the cause for petitioner.
   The opinion of the court was delivered by

William J. Brennan, Jr., J. A. D.

The Law Division, on habeas corpus, by order entered November 20, 1950, set aside Graham’s conviction upon an indictment for the high misdemeanor of incestuous conduct, R. 8. 2:139-2, and the State appeals. The petition was brought three years after Graham was convicted and sentenced to the State Prison. Graham did not seek review by writ of error within the one year from the entry of judgment of conviction limited by R. 8. 2:195-5 (cf. the present Rule l:2-5(b)). The Law Division’s order rested upon- the conclusion that the trial court, the former Mercer General Sessions, was without jurisdiction to enter the judgment of conviction because “substantial constitutional rights of the petitioner were violated at the time of his original trial in that, although he was then confined in jail, he was not present in court when the jury returned its verdict of guilty.” See In re Rose, 122 N. J. L. 507 (Sup. Ct. 1939).

The jury’s verdict was taken by the clerk late in the day of September 2.2, 1947, in the absence of the trial judge, although upon his direction given on the authority of R. S. 2:190-14, a practice now superseded by Buie 2:7-9(a). Graham had been returned to jail when the jury retired and was not brought back to the courtroom when the jury came in with its verdict. Graham’s counsel was also absent, but voluntarily. Cf. State v. Simon, 101 N. J. L. 11 (Sup. Ct. 1925).

Prom ancient times, a verdict rendered in the absence of the accused has been deemed a void verdict, but only as to treason, felony and crimes punishable by death or loss of member. “The verdict, whatever may be its effect, must, in all cases of felony and treason, be delivered in the presence of the defendant, in open court, and cannot be either privily given or promulgated while he is absent. And in all cases where the jury are commanded to ‘look on him,’ as in larceny and all accusations subjecting him to any species of mutilation or loss of limb, the same rule applies without exception. In all trials for inferior misdemeanors, however, a privy verdict may be given, and there is no occasion for the presence of the defendant.” Chitty, Crim. Law, vol. 4, p. 37 (1819). “To speak it here, once for all, if any person be indicted of treason, or of felony or larceny, and plead not guilty, and thereupon a jury is retorned, and sworn, their verdict must be heard, and they cannot be discharged, neither can the jurors in those cases give a privy verdict, but ought to give the verdict openly in court.” Co. Inst. p. 110; Co. Litt. 227b; 2 Hale, 300; Rex v. Ladsingham, T. Raym. 193, 83 Eng. Rep. R., 101. “A privy verdict cannot be given in a case of felony because the jury are directed and ought in such case to look upon the prisoner when they give their verdict.” 5 Bac. Abr. (5th ed.), 283. “Only they cannot, in a criminal case which touches life or member, give a privy verdict.” Sharswood, Black. Com., vol. 2, p. 360 (1873).

The opinions of Mr. Justice Depue, in Jackson v. State, 49 N. J. L. 252 (Sup. Ct. 1887), affirmed 50 N. J. L. 175 (E. & A. 1887), and Mr. Justice Reed, in State v. Peacock, 50 N. J. L. 34 (Sup. Ct. 1887), reversed on another ground 50 N. J. L. 653 (E. & A. 1888), attest the survival in this State of the common law limitation, (indeed, its contraction to embrace capital offenses only), prior to September 15, 1948, the effective date of Rule 2.10-2 which broadened the requirement to cover all offenses unless the defendant’s absence in cases of non-capital offenses is voluntary after the trial has been commenced in his presence.

In an earlier case, State v. Vansciver, 7 N. J. L. J. 268 (1884), where, as here, the accused was absent in custody when the verdict' was returned, it was intimated that the true test was not’whether the crime charged be misdemeanor or felony, but rather whether imprisonment could be passed as part of the punishment. It was held, however, that the absence of the accused tried upon an indictment for mere misdemeanor was a mere trial error which might be waived. It is not supposed that, as in capital cases at common law, the verdict was absolutely void. Incest is a statutory crime (Act of 18th of March, 1796 (Pat. 208), R. S. 2:139-1 and 2:13 9-2), which was not at common law an indictable offense although punished by the ecclesiastical courts of England as an offense against good morals. 16 Am. & Eng. Enc. Law (2d ed.), 135; 27 Am. Jur., Incest, p. 287; cf. Wharton Crim. Law (12th ed.), vol. II, p. 2420. As such the return of the verdict in Graham’s absence did not, under.the common law test, render his conviction void. Unless the failure to have him present infringed upon some constitutional right the Mercer General Sessions did not lose jurisdiction, but he was at best the victim of a trial error remediable, not by habeas corpus, but by timely appeal in the nature of a writ of error. See In re Tremper, 129 N. J. Eq. 274 (E. & A. 1941); Com. ex rel. Aldrich v. Ashe, 149 Pa. Super. 25, 26 A. 2d 211 (Pa. Super. Ct. 1942).

So far as the diligence of counsel can discover or our own research reveals, it has not been suggested in the cases that the requirement that the accused should be present in person lias been written into the Constitution of this State even as to offenses as to which at common law his presence was indispensable to a valid verdict. Where it has been held outside this jurisdiction that the absence of the defendant upon the rendition of the verdict was such a basic and fundamental error as to require discharge of the accused on habeas corpus, even though the error was not raised by timely appeal, the determination lias been rested, not upon a constitutional provision, but upon the ground that as to the class of offenses where the right was recognized at common law "it is fundamental in Anglo-Saxon jurisprudence that the defendant * * * shall be permitted to be present * * Com. ex rel. Milewski v. Ashe, 363 Pa. 596, 70 A. 2d 625 (Sup. Ct. Pa. 1950). But eompare discussion in Orfield, Crim. Procedure (1947). at pp. 413-417.

Article I, paragraph 8 of the 1844 Constitution (Article I, paragraph 10, Constitution of 1947) provides that "In all criminal prosecutions the accused shall have the right io a speedy and public trial by an impartial jury; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel in Ills defense.” Graham's counsel argues that a privy verdict in the case of every offense violates the guarantee of a "public trial.” Not so. The provision, like similar provisions in the Federal Constitution and in the constitutions of the several states, was purposed io protect the accused from the abuses of Die secret or star chamber trial "so that the public may see that he is fairly dealt with, and not unjustly condemned, and that the presence of spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.” 14 Am. Jur., Criminal Law, p. 865. That requirement was met in this case by keeping the court open to receive the verdicts.

And while, when testimony is presented or the jury is instructed, the accused has the right to be present because he is entitled under the Constitution to confront the witnesses against him and to make his defense upon the merits with the assistance of counsel, cf. State v. Nardella, 108 N. J. L. 148 (E. & A. 1931); State v. Auld, 2 N. J. 426 (1949), such reasons for his presence do not obtain after the jury has concluded its deliberations, and those constitutional provisions cannot be construed as requiring his presence when the verdict is reported.

Since the verdict was not upon an indictment for a crime as to which Graham’s presence was essential upon common law principles and no constitutional protection of any right to be present can be found, we conclude that the order of the Law Division must be reversed. We are not to be understood as expressing any view of the effect to be given Rule 2:10-2 upon verdicts returned in like circumstances subsequent to its effective date.

Reversed.


author: Bigelow, J. A. D.

text:
    ALVINO DONATI, PLAINTIFF-APPELLANT, v. EVA DOROTHY CHURCH, ETC., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 12, 1951
    Decided May 14, 1951.

      Before Judges Jacobs, Eastwood and Bigelow.

      Mr. Paul Colvin argued the cause for the appellant.
   The opinion of the court was delivered by

Bigelow, J. A. D.

The appellant husband instituted the action to annul his marriage with respondent on the ground of her impotence. The advisory master to whom the case was referred in the Chancery Division, after hearing the proofs, dismissed the complaint.

Our statute, R. S. 2:50-1(c), authorizes a decree of annulment where

“The parties, or either of them, were at the time of marriage physically and incurably impotent, provided the party making the application shall have been ignorant of such impotency or incapability at the time of the marriage, or has not subsequently ratified the marriage.”

Impotence is not sterility or inability to beget or bear a child. It is inability to have sexual intercourse. Kirschbaum v. Kirschbaum, 92 N. J. Eq. 7 (Ch. 1920); Turney v. Avery, 92 N. J. Eq. 473 (Ch. 1921) ; Heller v. Heller, 116 N. J. Eq. 543 (E. & A. 1934). We are satisfied that respondent is and was at the time of the marriage, incurably impotent. The introitus or opening of the vagina is infantile in type and too small to allow of copulation, although her husband was able to, and did frequently, insert the tip of his penis. This imperfect intercourse is not enough to rebut a finding of the defendant’s impotence. 17 Am. Jur. 223, Divorce § 141. D. v. A., 1 Rob. Ecc. 280, 298; 163 Eng. R. 1039 (Consistory, 1845).

The subject of ratification was carefully considered in G. v. G., 67 N. J. Eq. 30 (Ch. 1904) and Kirschbaum v. Kirschbaum, supra. In both cases, the criteria developed by the English courts, unaided by statute, were used. What will bar relief in a ease of this sort was suggested by the Lord Chancellor in G. v. M., 10 App. Cas. 171, at 186 (H. of L. 1885) : “Conduct on the part of the person seeking this remedy which ought to estop that person from having it; as, for instance, any act from which the inference ought to be drawn that during the antecedent time the party has, with a knowldege of the facts and of the law, approbated the marriage which he or she afterwards seeks to get rid of, or has taken advantages and derived benefits from the matrimonial relation which it would be unfair and inequitable to permit him or her, after having received them, to treat as if no such relation had ever existed.” And he gave as illustrations, “taking pecuniary benefits for example, living for a long time together in the same house or family with the status and character of husband and wife, after knowledge of everything which it is material to know.” In the same case (p. 197), Lord Watson expressed the rule in these terms, “that in a suit for nullity of marriage there may be facts and circumstances proved that so plainly imply, on the part of the complaining spouse, a recognition of the existence and validity of the marriage, as to render ii; most inequitable and contrary to public policy that he or she should be permitted to go on to challenge it with effect.”

The parties now before us were married in July, 1947. Plaintiff instituted his suit May 31, 1949, while he was still living with his wife, and he continued to live in the same small apartment with her until August or September. He testified, and his wife denied, that right after instituting the action, he ceased occupying the same bed with her, and instead slept on a couch. The last day of the year 1949, plaintiff returned to his wife’s apartment and continued to live there one week, according to his own testimony, or until February 6, 1950, according to his wife. He returned to her because he thought they could “make a go of it,” although “I knew I would never get the thing I wanted.” But after a few days or weeks, he consulted his lawyer, who told him, “You’re making a big mistake.” So he left his wife for the second time, but still continued to visit her occasionally. While living with defendant in the early days of 1950 and whenever he called on her later, they had sexual intercourse of the kind and to the extent that her condition permitted. The advisory master who heard the case, found that this occurred as late as two weeks before the final hearing.

The conduct of the plaintiff toward the defendant can he defended only by reason of the marriage relation between them, and clearly constituted a ratification of the marriage. The judgment dismissing the petition must therefore be affirmed.


author: Wtlliam J. Breyyay, Jr., J. A. D.

text:
    SLOVAK CATHOLIC SOKOL, A CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT, v. JOSEPH T. FOTI, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 30, 1951
    Decided May 10, 1951.

      Before Judges McGeeiiay, Jaykb and Wir. J. Beeyyay, Je.

      Mr. E. Gústeme Greenwald argued the cause for appellant (Mr. John R. Blanda, attorney).

      Mr. 2lorris V. Pearlman argued the cause for respondent (Mr. Nathan Pearlman, attorney).
   The opinion of the court was delivered by

Wtlliam J. Breyyay, Jr., J. A. D.

Plaintiff sued defendant for alleged breach of a written contract to pay plaintiff $398.48. Judgment for defendant was entered in 'Hudson County District Court after trial without a jury. The case is here on a statement of the evidence and findings of fact settled by the trial judge under Rule 1:2—23.

Plaintiff held a judgment against Veterans Press, Inc. An execution issued and a levy was made upon a bank account standing to the credit of that company. Defendant desired to have the levy lifted, which plaintiff was willing to do upon being paid the sum of $500. Defendant did not have that sum. An agreement was made under which defendant paid plaintiff $101.52 and signed an undertaking “in consideration of the receipt by me of a letter directed to the sheriff ■ * * * to lift the levy * * *, will give to the Slovak Catholic Sokol, the sum of $398.48.”

On its face, this appears to be an absolute promise to pay the sum specified. However, the statement of evidence recites that the witness on plaintiff’s behalf testified on cross-examination that the undertaking “was drawn so that if the balance of the funds of Veterans Press, Inc., were to be released amounting to approximately $398.00, that after the lifting of the lien and the release of the funds, the plaintiff would be paid the balance of approximately $398.00 remaining in the account of Veterans Press, Inc.” Defendant’s stated version of the understanding is the same, namely, that “it was agreed that if he would pay * * * the sum of $101.52, and the balance out of the monies of the Veterans Press, Inc., which were under levy by the plaintiff * * * this would be satisfactory to the plaintiff.” This evidence fully supported the finding of fact by trial judge “That the defendant never intended to use any of his own money with which to pay the $398.48, it being distinctly understood that this sum would be paid out of the monies to be released from the levy of the plaintiff’s lien on the funds of Veterans Press, Inc.” Steps were taken by plaintiff to release its levy but they were not effective to make the funds of Veterans Press, Inc., available because of the existence of another lien on the account in favor of the United States Government.

Appellant argues that the trial judge should not have admitted the testimony that the parties contemplated the payment of the obligation out of the funds of Veterans Press, Inc., contending that this had the effect of contradicting or varying the terms of the writing which expressed a general obligation to pay. We cannot consider that argument because it nowhere appears in the settled case that any objection to the admissibility either of the testimony of plaintiff’s witness on cross-examination or of defendant’s testimony was made below. It should be unnecessary so often to repeat that under our new Buies, unless jurisdiction or public policy is involved, the principle persists that in a civil case a party shall not be heard in an appellate court upon a point not raised or considered in the court below. So, in the absence of timely and proper objection at the trial to the admissibility of the challenged evidence, there is no legal error before us on which to ground an appeal however we may view the competency of that testimony. Rules 3 :46 and 7 :1-3; Raab v. American Casualty Co., 4 N. J. 303 (1950); Anderson v. Modica, 4 N. J. 383 (1950); Roberts Electric, Inc. v. Foundations & Excavations, Inc., 5 N. J. 426 (1950); Steffler v. Schroeder, 12 N. J. Super. 243 (App. Div. 1951); Malinauskas v. Public Service Interstate Transportation Co., 6 N. J. 269 (1951); and see Domestic Fuel Co. v. American Petroleum Corp., 6 N. J. 538 (1951); J. B. Wolfe, Inc. v. Salkind, 3 N. J. 312 (1949); Spinning v. Hudson & Manhattan R. Co., 11 N. J. Super. 333 (App. Div. 1951). Compare as to criminal causes Rule 1:2-19(&), as amended; State v. Taylor, 5 N. J. 474 (1950); State v. Bulach, 10 N. J. Super. 107 (App. Div. 1950).

The principle is, of course, applicable to civil causes where no stenographic record is made and the case is settled under Rule 1 :2-23. It is not suggested here that the settled case does not truly disclose what occurred in the court below. In any eveni, the rights of the parties in such case are to be protected by resort to the procedure under Rule 1:2-26 to correct the record.

Affirmed.


author: Donges, A. J. S. C.

text:
    JOSEPH ROBERTS, JOSEPH DEMYANOVICH AND ARTHUR HANSEN, PLAINTIFFS-RESPONDENTS, v. GEO. M. BREWSTER & SON, INC., A CORPORATION, DEPENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 7, 1951
    Decided May 16, 1951.

      Before Judges Ereund, Dorges and Proctor.

      Mr. William Georg,e argued the cause for plaintiffs-respondents (Mr. J. Edward Bennett, attorney).

      Mr. George P. Moser argued'the cause for defendant-appellant (Mr. William L. Rae on the brief).
   The opinion of the court was delivered by

Donges, A. J. S. C.

■ This is an appeal from judgments entered in the Hew Jersey Superior Court, Law Division.

On March 22, 1948, the plaintiffs were injured as the result of the falling of a boom appended to a 40-ton Speed-crane. The crane was owned by the defendant, but had been rented to the Catalytic Corporation under a written lease dated the 15th day of March, 1948. The lease provided that the lessee was to employ defendant’s operators and was to return the machine in first-class condition. The crane was not actually used until March 22, the day of the accident. At the time of the accident, the crane was being operated by Julian DeSena, a general employee of the defendant. He was sent to operate the crane at the Catalytic job site by the defendant’s master mechanic. He began working about 4 o’clock and proceeded to move the crane into position for the job. It does not appear that any one other than the defendant had any direct control over his operation of the crane, except perhaps to indicate what work had to be done. Mr. DeSena testified that as he saw the boom going down, he grabbed for the brake, but it evidently did not hold, or he grabbed it too late.

There was considerable testimony concerning the cause of the boom’s falling. After the accident, DeSena, with others. removed the boom’s brake band and found that it was covered with old grease. William J. Joyce testified that upon examination of the brake band he found that the grease had been on the brake band for two or three months and, in his opinion, the brake would not hold because of the presence of the grease thereon. Mr. Joyce had experience in the maintenance and operation of cranes over a period of 30 years. Several other witnesses testified that they saw the brake band and that it was saturated with old grease.

Motions were made by the defendant for involuntary dismissals. These motions were denied by the trial court and the ease was submitted to the jury. Verdicts were returned by the j ury in favor of each of the plaintiffs.

One of the issues involved in this matter is whether the trial judge erred in denying defendant’s motions for a dismissal. The case was submitted to the jury on two separate theories of liability. The first theory is that the defendant supplied a crane to its lessee which was defective and dangerous. It is a well recognized principle of law that a supplier of an article, not inherently dangerous but which may become dangerous when put to the use for which it is intended, owes to the public a duty of using reasonable care and diligence to see that it is reasonably fit for the purpose for which it was intended to be used, and if reasonable care is not employed and someone is injured, the supplier becomes liable for consequent injuries. Heckel v. Ford Motor Co., 101 N. J. L. 385 (E. & A. 1925); Restatement of Law of Torts, ch. VII, § 392, p. 1064; Styles v. Long Co., 70 N. J. L. 301 (E. & A. 1904); Marvin Safe Co. v. Ward, 46 N. J. L. 19 (Sup. Ct. 1884); Kafton v. Wickberg, 120 N. J. L. 417 (Sup. Ct. 1938). The duty or liability arises independent of contract and the breach of said duty gives rise to a cause of action in tort. See cases cited supra.

The defendant does not seem to deny the applicability of the principles mentioned supra, but does allege that the existence of the grease was not the proximate cause of plaintiffs’ injuries. There certainly was sufficient testimony in plaintiffs’ direct case to warrant submission to the jury of the question of proximate cause. Mr. Joyce testified, for example, that in his expert opinion the brake would not hold because of the presence of the grease. There was, also, additional testimony concerning this question. Under circumstances such as those presented here, the question of proximate cause is for the triers of fact.

The second theory upon which the case was submitted to the jury was that the accident was caused by the negligence of the operator of the crane, and that the defendant would be liable under the doctrine of respondeat superior. The defendant claims that DeSena, at the time of the accident, was the servant of the lessee and consequently defendant can not be held liable for his acts. It is well recognized, of course, that the liability of the defendant to the plaintiffs must be grounded upon the relationship of master and servant between it and DeSena. Control by the master of the servant is of the essence of that relationship. Spelde v. Galtieri, 102 N. J. L. 203 (E. & A. 1925). When the servant of one employer is permitted or directed by him to perform duties for another, he may become the servant of such other. Younkers v. Ocean County, 130 N. J. L. 607 (E. & A. 1943). The question of whether the general employer or the specific employer is the master turns upon the decision of who has the right to exercise control over the servant. Younkers v. Ocean County, supra. Ordinarily, whether the servant is under the control of one master or another is a factual question to be decided by a jury. Restatement of Law of Agency, ch. VII, § 220(&), pp. 484, 485. In the instant case, there was an abundance of testimony and inferences to permit the jury to find that DeSena was the defendant’s servant at the time of the accident. The fact that the crane was such a valuable piece of machinery might indicate that it was the intention of the defendant to retain control over its operator. Conceivably, there might be a clash of interest between the solicitude of the defendant for a valuable machine and the lessee’s desire to accomplish some work. The defendant would certainly expect DeSena to look after its interests first. Then, too, the lessee had no voice in the selection of the operator. It took whatever operator the defendant saw-fit to send with the crane. These and other facts justified the court in submitting the question of relationship to the jury. Younkers v. Ocean County, supra.

The defendant further contends that the trial court erred in refusing to charge certain requests. A careful review of the charge clearly indicates that the substance of each of the requests, except the first, was incorporated in the charge. The first request was not proper in that it would direct a finding that DeSena was not the servant of the defendant. As indicated, this was for the jury to decide. It is not necessary for the court to use the language submitted in a proper request, if the substance thereof is incorporated in the charge. Paolercio v. Wright, 2 N. J. 412 (Sup. Ct. 1949) .

The remaining contention is that the verdict is against the weight of the evidence. This, likewise, is without merit. A verdict will not be set aside unless it appears to be the result of mistake, passion, or prejudice. Such is not the situation in the instant case.

The judgments under review are affirmed.


author: Doxges, A. J. S. C.

text:
    ROBERT J. MULQUINN, PLAINTIFF-RESPONDENT, v. LOCK JOINT PIPE COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 7, 1951
    Decided May 16, 1951.

      Before Judges Feettxd, Doxges and Pkoctoe.

      Mr. Samuel Weitzman argued the cause for plaintiff-respondent (Messrs. Parsonnet, Weitzman & Oransky, attorneys) .

      Mr. Edward 11. McGlynn argued the cause for defendant-appellant (Messrs. McGlynn, Weiniraub & Stein, attorneys).
   The opinion of the court was delivered by

Doxges, A. J. S. C.

This is an appeal from a judgment entered in the Superior Court, Law Division, in favor of plaintiff for $5,000.

On June 14, 1948, plaintiff was involved in an accident and suffered a fracture of his left arm. Since defendant raises no question as to its liability for this injury, it is not necessary to repeat the facts and circumstances surrounding the accident. Shortly after the accident, the fracture was set and plaintiff’s arm was placed in a cast. This cast was removed approximately eight weeks later. About two weeks after the removal of the cast, plaintiff resumed his duties which consisted of driving a truck as an independent contractor for defendant.

On October 7, 1948, plaintiff was delivering some pipes for the defendant. In doing so, he was obliged to drive his truck onto an open field. The front wheel of the truck hit a hole and snapped the steering wheel out of his hands. The testimony indicates that the same arm suffered an additional fracture. The first fracture was a transverse fracture of the left arm, while the second was an oblique fracture, beginning at a point where the first fracture had occurred but had not healed in a perfect manner. The medical testimony differed as to whether or not there was any connection between the two fractures.

The basis for this appeal is that defendant contends that the trial court erred in not removing the question concerning the second fracture from the consideration of the jury. Defendant alleges that the second fracture was caused by an independent intervening cause, and, therefore, the first accident could not have been the proximate cause of this latter injury.

It is, of course, familiar law that the wrongful act, neglect or. default must have been the proximate cause of the injury in order to give a right of action therefor. The proximate cause is the efficient cause, the one which necessarily sets the other causes in operation. Batton v. Public Service Corp. of New Jersey, 75 N. J. L. 857 (E. & A. 1908); Kelson v. Public Service R. R. Co., 94 N. J. L. 527 (E. & A. 1920); Vadurro v. Yellow Cab Co. of Camden, 8 N. J. Super. 208 (App. Div. 1950), certification granted 5 N. J. 350 (1950), affirmed 6 N. J. 102 (1950). It is the act or omission which directly brought about the happening complained of. and in the absence of which the happening complained of would not have occurred. Silverstein v. Schneider, 110 N. J. L. 239 (E. &. A. 1933).

It is not sufficient for the defendant to show that the negligence of some third person or some other act, so long as it is not the contributory negligence of the plaintiff, may have contributed to the happening of the injury, for if his act was one of the proximate causes, he is nevertheless liable. Vadurro v. Yellow Cab Co. of Camden, supra. In the instant case, if plaintiff, acting in good faith and without negligence on his part, attended to his usual duties as he thought he might prudently perform, and in so doing produced another fracture which would not have occurred but for the first fracture and defendant’s negligence connected therewith, the defendant is not relieved from liability for the second fracture. Batton v. Public Service Corp. of N. J., supra.

It might be further noted that the fact that defendant did not foresee nor anticipate the additional injury is unimportant. A tortfessor is generally answerable for an injury that, in the ordinary course of events, results from his wrongful act. Mitchell v. Friedman, 11 N. J. Super. 344 (App. Div. 1951).

Ordinarily, whether the injury received by plaintiff was the natural result of defendant’s negligence was a question for the jury. Vadurro v. Yellow Cab Co. of Camden, supra. In the instant case, there was a factual dispute concerning the cause of the second fracture and the trial court properly submitted it to the jury.

The defendant further complains of the trial court’s supplemental instructions to the jury in answer to the jury’s inquiries. A review of those remarks and of the entire charge clearly demonstrates that no error was committed.

The judgment under review is affirmed.


author: Jacobs, S. J. A. D. Bigelow, <T. A. D.

text:
    PAUL COHEN, PLAINTIFF-RESPONDENT, v. UMBERT FRANK SCOLA, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 12, 1951
    Decided May 17, 1951.
    Bigelow, J. A. D., dissented.

      Before Judges Jacobs, Eastwood and Bigei^ow.

      Mr. Irving Siegler argued the cause for the appellant (Mr. Max Schomer, attorney).

      Mr. Leon Sachs argued the cause for the respondent.
   The opinion of the court was delivered by

Jacobs, S. J. A. D.

The defendant appeals from a judgment for brokerage commission obtained by the plaintiff in the Essex County District Court.

The defendant operates the Park View Restaurant, a luncheonette and restaurant business at 184 Elizabeth Avenue, Newark. IJis business includes customary stock and .good wiil, fixtures and equipment, and a lease for the restaurant premises. The plaintiff describes himself as a business broker; he is not licensed as a real estate broker under Title 45, Chapter 15 of the Revised Statutes. In January, 1950, the defendant listed his luncheonette and restaurant business with the plaintiff for sale at the price of $6,500, the plaintiff to receive ten percent thereof as his brokerage commission. Thereafter the plaintiff interested Mr. Robert Klein in the purchase of the defendant’s business and on March 28, 1950, he brought the prospective buyer and seller together.

The plaintiff testified that during the preliminary discussions on March 28, 1950, the defendant and Klein agreed upon a sale at the price of $6,500 and he reduced his commission to $500. Later that day they went to the office of Klein’s attorney who suggested that the contract of sale include a provision as to the gross receipts of the seller’s business and a further provision for a lease beyond the term of the lease held by the defendant. These suggestions were agreeable to the defendant and a written contract was prepared and executed. Paragraph 1 provides that the seller agrees to sell and the purchaser agrees to purchase the luncheonette and restaurant business including stock, fixtures, equipment, lease, good will, etc. Paragraph 5 provides ■that the seller represents his gross weekly receipts to average $525 and guarantees that the gross receipts from March 29, 1950, to April 5, 1950, will aggregate $525; it further provides that this shall be deemed a trial period during which the buyer will have opportunity to keep tally of the gross receipts and in the event they do not aggregate $525 the deposit under the contract will be returned to the buyer. Paragraph 8 provides that the seller agrees to procure and deliver to the purchaser a lease for the premises for an unexpired period not less than three years from April 15, 1950, and in the event of the seller’s failure to do so the buyer will be entitled to return of .his deposit. Paragraph 10 provides that the parties agree that the plaintiff is the only broker who brought about the sale and is entitled to commission of $500 to be paid by the defendant. The gross receipts did not aggregate $525 during the period from March 29, 1950 to April 5, 1950 and consequently the transaction fell through and the restaurant was not sold. Nevertheless, upon the defendant’s refusal to pay the commission claimed by the plaintiff, he instituted his action and obtained the judgment from which the present appeal is taken.

Our courts have held that, in the absence of stipulation to the contrary, a broker earns his commission when he obtains a buyer on the seller’s terms “either as originally propounded or as settled by agreement between the seller and buyer.” Dickinson v. Walters, 100 N. J. L. 62, 65 (Sup. Ct. 1924); Houston v. Siebert, 129 N. J. L. 468, 472 (E. & A. 1943). And where the agreement to sell is not consummated because of a default by the seller the right to commission is not defeated. See Louis Schlesinger, Inc. v. Burstein Realty Co., 123 N. J. L. 190, 192 (E. & A. 1939). Thus, recovery by the broker was allowed where the seller failed to fulfill his covenant against encroachments (Klipper v. Schlossberg, 96 N. J. L. 397 (Sup. Ct. 1921)), or his undertaking to obtain a mortgage loan for the buyer (Alpern v. Streiff, 5 N. J. Misc. 265 (Sup. Ct. 1927)), or, as here, to meet the stipulated minimum gross receipts during a trial period. Gabriel v. Glickman, 25 N. J. Misc. 120, 123 (Sup. Ct. 1947). See also Stevens v. Oschwald Realty Corp., 10 N. J. Misc. 1140 (Sup. Ct. 1932), affirmed 111 N. J. L. 355 (E. & A. 1933), whore a broker was held entitled to recovery from the lessor for renting his property despite the fact that the lease was voided at the lessee’s option upon rejection of the lessor’s application for a building permit.

We are satisfied that the authorities compel the view that the failure to consummate the sale of the luncheonette and resiaurant in the instant matter did not of itself disentitle the plaintiff to his claimed commission. The important question remaining, however, is whether he was barred from recovery because he was not licensed under Title 45, Chapter 15 of the Devised Statutes. That act provides for the licensing of real estate brokers; it defines a real estate broker to include any person, among others, who negotiates a sale “of real estate or an interest therein.” In Kenney v. Paterson Milk & Cream Co., 110 N. J. L. 141 (E. & A. 1933), the court held that an unlicensed broker was barred from recovering commission for negotiating the sale, as a going concern, of a business which included amongst its assets land, buildings, equipment and good will. See Solomon v. Goldberg, 11 N. J. Super. 69 (App. Div. 1950). In reaching its conclusion the court recognized fully the conflicting opinions by courts in other jurisdictions on the issue as to whether a licensing requirement for real estate brokers should be construed to be applicable to the sale of a going business which includes real and personal property. Cf. Weingast v. Rialto Pastry Shop, Inc., 243 N. Y. 113, 152 N. E. 693 (1926), with Nittler v. Continental Casualty Co., 94 Cal. App. 498, 271 Pac. 555 (1928), rehearing denied 272 Pac. 309 (Cal. App. 1928). See Buschbaum v. Barron, 1 N. J. Super. 4, 6 (App. Div. 1948). It is conceded that a leasehold is an interest in land within the statute (Kaplan v. Meranus, 136 N. J. L. 425, 426 (Sup. Ct. 1948), affirmed 1 N. J. 219 (1948)), and in Bierman v. Barthelmeus, 24 N. J. Misc. 35, 36 (Dist. Ct. 1946), it was held that the sale of a business including a leasehold comes within the holding in the Kenney case., Although the pertinent statute has been since amended and supplemented in other respects (P. L. 1948, c. 155; P. L. 1949, c. 214), there has been no legislative action towards expressly excluding the sale of a business including land or real estate lease from the orbit of the statute. Indeed, in Corson v. Keane, 4 N. J. 221, 227 (1950), the Supreme Court recently cited both the Kenney and Bierman cases without any suggestion of disapproval. In the light of the foregoing we have reached the conclusion that the statute -in its present form is applicable to the negotiation of the sale of a business which includes land or real estate lease and prohibits recovery of commission by an unlicensed broker who negotiates such sale.

•Accepting the foregoing construction of the statute, the plaintiff contends nevertheless that he is entitled to recover on the basis of his oral commission agreement with the defendant which the District Court found “had nothing whatever to do with the sale of the leasehold remaining, or with procuring a new lease.” Cf. Kaplan v. Meranus, supra. Our independent factual finding is to the contrary. See Rule 1:2-20. Courts have recognized, as counsel conceded at the argument on the appeal, that the ordinary sale of an entire restaurant business to be continued in operation by the purchaser at the same premises contemplates inclusion of its stock, fixtures, tenancy and good will. See Nittler v. Continental Casualty Co., supra; Weingast v. Rialto Pastry Shop, Inc., supra. When the defendant listed his “restaurant” for sale with the plaintiff there was no breakdown of its constituent assets and presumably all were included; we find nothing in the plaintiff’s testimony to the contrary. When the ultimate contract was drawn and executed it expressly embodied in paragraph 1 formal language which seems to us to have simply effectuated the original understanding, namely, the sale of the restaurant business “including stock, fixtures, equipment, lease, good will.”

Eeversed with direction that judgment be entered for the defendant.

Bigelow, <T. A. D.

(dissenting). The majority of the court hold that plaintiff’s lack of a real estate broker’s license bars recovery of a commission on the sale of defendant’s business. The contract of sale covers “stock, fixtures, equipment, lease, good will and all rights under any contract for telephone service.” It is the word “lease” that is considered fatal to plaintiff’s case. The terms of the lease are not given, but the vendor promises to procure for the purchaser a lease for “not less than three years from April 15, 1950, and at a rental of not more than $100 first year * * * per month.” It is a fair inference that the lease included in the sale expired April 15, or only ten days after the day set for transferring title to the purchaser, April 5, 1950. I do not believe the Legislature intended that a business broker must hold a real estate broker’s license merely because such a trivial interest in real estate—if it can be so denominated—is included in the transaction. Of course, no commission is sought by plaintiff in connection with the new lease. The trial court found he had nothing whatever to do with procuring it.

The business of real estate broker and that of business broker are clearly distinct. The one deals with land, although the furnishings of a house may be included in the sale; the other relates primarily to chattels and intangibles, although the transfer of a lease is generally part of the deal. The statute, Chapter 15 of Title 4.5, is plainly concerned with real estate brokers and not business brokers. See especially the qualifications of members of the Real Estate Commission, and the examinations prescribed for applicants for licenses. Rote that the statute is penal. R. S. 45:15-23. I suggest a doubt that the statute, if extended to a transaction like the one now before us, could stand as a reasonable regulation of business.

The statute so defines a real estate broker as to include one who negotiates a sale of “real estate or an interest therein.” In Yew York, a statute using substantially the same language, has been held not to require a license of a business broker, although the sale of the business includes the transfer of a lease. Weingast v. Rialto Pastry Shop, Inc., 152 N. E. 693 (N. Y. 1926). The contrary result has been reached in California, but only after the statute was amended so as expressly to include in the definition of real estate broker one who negotiates the sale of a lease. Nittler v. Continental Casualty, 271 Pac. 555 (1928). The transaction involved in Kenney v. Paterson Milk, etc., Co., 110 N. J. L. 141, 164 A. 274, 88 A. L. R. 1416 (E. & A. 1933), embraced the sale of land in fee “perhaps to the value of” $250,000.

I vote to affirm the District Court.


author: Hanemast, J. S. C.

text:
    THERESA STEINHART BERG, STANLEY BERG AND MAURICE J. STRAUSS, SUCCESSOR TRUSTEES UNDER THE WILL OF JOSEPHINE GANS STEINHART, DECEASED, PLAINTIFFS, v. TERESA STEINHART BERG, DAN BERG, A MINOR, AND JOSEPHINE GANS BERG, A MINOR, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided March 29, 1951.

      Mr. Daniel DeBrier, attorney for plaintiffs.

      Mr. Marvin Z. Wallen, attorney for defendants.
   Hanemast, J. S. C.

Josephine Oans Steinhart died on May 21, 1943, leaving a -will dated June 16, 1942, which will was probated by the Surrogate of Atlantic County on June 4,1943.

In and by the terms of said will the testatrix set up a trust fund and provided in paragraph designated “First, sub-paragraph B,” as follows:

“Upon the death of my husband or in the event that he should predecease me then to accumulate the income until the termination of the present wars between the United States of America and Germany and between the United States of America and Japan.”

Complaint has been filed in this cause requesting a construction of the above-quoted paragraph or section of the will of Josephine Gans Steinhart, in order that the trustees under said testatrix’ will may be now advised whether, for the purpose of the provisions made in the will, the wars between the United States and Germany and Japan respectively may be deemed terminated.

It appears from the testimony here adduced that some time in June, 1942, prior to June 6, 1942, Maurice J. Strauss, a member of the Bar of the State of Pennsylvania, received a telephone call suggesting that he attend at the residence of Teresa Steinhart Berg, daughter of Josephine Gans Steinhart and Dr. Lewis Steinhart, for the purpose of consulting with the two latter-named persons concerning the preparation of last wills and testaments.

I find as a fact that at this conference both the present testatrix and her husband, Dr. Lewis Steinhart, were concerned about the prospect of their son-in-law, Stanley Berg, being inducted into the armed services and that the disposition which they desired to make of their estates, as evidenced by paragraph First, sub-paragraph B, was conditioned upon either the failure of the said Stanley Berg to be inducted into the armed services or, in the event of such an induction, to have been discharged from the armed services. As a matter of fact, subsequent events demonstrated that Stanley Berg was never inducted into the armed services of the United States. Both Dr. Steinhart and his wife, the testatrix, were desirous that the income to be received from the trust funds set up by each of thorn was to be accumulated until the happening of either event above referred to.

Maurice J. Strauss testified that having in mind the directions of both the testatrix and her husband, ho prepared identical mutual wills, using the phraseology which the court is now called upon to interpret, 1 o express their respective intentions. He also testified that some time in 1947 the said Dr. Steinhart, then conceiving that what he considered a termination of the wars with Germany and Japan having occurred, he redrafted his will, leaving out of the same the provision with with we are now confronted.

I am satisfied that the testatrix did not, by the phraseology used, intend that there should bo either a diplomatic peace or a treaty between the United States and Germany and Japan. I conceive that the words were used in this will in their usual and popular meaning and that there is nothing in the context of the will that requires a narrow or technical meaning to be accorded to them. The apparent purpose of the testatrix was to make provision that the income should bo accumulated until such time as there was either no danger of her son-in-law being inducted hito the armed services or, having been inducted, that he should have been discharged from the armed services. The words were used in their common and normal acceptance, and although we do not now have a diplomatic formal peace with either of the two above-referred to nations, to all intents and purposes, and in the common parlance, the war with Germany and Japan has been terminated.

I find that the testatrix did not intend that the income should be accumulated until a formal treaty of peace was signed with Germany and Japan, but that she did intend that this accumulation should continue until the actual hostilities and actual fighting with these respective nations ceased, and then until her son-in-law, if he had been inducted, were discharged from the service.

Although the facts here present are somewhat different from those presented in Schaffer v. Oldak, 12 N. J. Super. 80, 78 A. 2d 842 (Ch. 1951), the reasoning which the judge there employed and the conclusions at which he arrived are as well applicable to the case before me.

It is therefore here held that insofar as the will of Josephine Gans Steinhart is concerned, the present wars between the United States of America and Germany and between the United States of America and Japan, have terminated.

Judgment will be entered accordingly.