author: Foster, Vice-Ordinary.

text:
    In the matter of the appeal from the decree of the Ocean county orphans court admitting to probate a certain paper writing as the last will and testament of J. Edward Conor.
    [Submitted January 24th, 1923.
    Decided February 15th, 1923.]
    Wills — Probate—Undue Influence of Testator’s Wife — Lack of Testamentary Capacity.

      Mr. Ward Kremer and Mr. Ivan E. Maginn (of the New York bar), for the appellants.

      Mr. W. H. Jayne, Mr. H. E. Wainright and Mr. Terry Parker, for the respondents.
   Foster, Vice-Ordinary.

This is an appeal from a decree of the orphans court of Ocean' county, admitting to probate a paper purporting to be the last will and testament of J. Edward Conor, deceased.

The will was executed in due form on June 3d, 1920, and testator, then about seventy-four years old) died in Lakewood, on April 23d, 1921, leaving him surviving his widow and two married daughters, children by a former, marriage, and a stepdaughter.

The will was prepared and executed under the following circumstances: Some time in May, 1920, testator was driven from his home in Lakewood to the office of Mr. Wainright, in Manasquan, where he gave Mr. Wainright instructions about the preparation of his will and informed him of some of the troubles he was having with his daughters. Mr. Wainright, some time later, dictated and had the draft of the will typewritten and in the course of a few days Mr. Conor called again, the will was read to him, and he took it away with him and some days later he returned with it and executed it in the presence of Mr. Wainright and the latter’s stenographer. The will was then taken home by him, and Mr. Wainright did not see the will again until the day Mr. Conor died, when it was given him by the widow. On each of these visits Mr. Conor was not accompanied by anyone and to Mr. Wainright he appeared competent and able to understand what he was doing.

The validity of the will is attacked on the ground of lack of testamentary capacity, produced by the excessive use of intoxicating liquors, and the habitual use of verinol by the testator, and on the further ground of undue influence exercised over testator by his wife, who is the principal beneficiary under the will.

The will disposes of an estate estimated of considerable value, and by its terms $1,000 is given to Mr. Sigler, a young friend and agent of the testator, and one dollar is given to each of the two daughters, who are the caveators. Nothing is given to the stepdaughter, Mrs. Pierson, and the residue of the entire estate is given to the widow, Iris Grace Conor.

The principal ground of attack against the will is based on undue influence and in support of this contention the evidence has established this situation. Testator’s second wife, who has largely managed his business and affairs and who was the mother of Mrs. Whitmore and Mrs. Sanford, the caveators, died in October, 1918, shortly after the death of their son, who- was in service, and thereupon testator began to drink very heavily, and his daughter Mrs. Sanford, then unmarried, continued to keep house for him in Lakewood, the other two daughters living in Brooklyn. The home at Lakewood was kept ftp until some time in April, 1919, when testator left iti under the following circumstances: Mrs. Sanford had gone to the city for the day and while there she received a telegram from her father, telling her not to return that night; during the next three days she received similar telephone messages from him, and on the receipt of a telegram from a friend, she disregarded his messages and returned to Lakewood and found her father and the present Mrs. Conor drinking liquor in the pantry of the home, and she learned from them that this woman and another man and woman were living in the house. She ordered the party from the house and her father, at Mrs. Conor’s persuasion, left with them, and they went to the Motor Inn, in Lakewood, where the party continued to live for about a month, and until they went to Atlantic City, on testator’s invitation, and at his expense. In the meantime Mrs. Sanford kept the home open, and one day her father called and said he was coming back, but he did not return to his home until after his marriage to the present Mrs. Conor, some months later, and after his daughter had married and left the home, to live with her husband. With the exception of this call, Mrs. Sanford did not see nor hear from her father between April, 1919, and February, 1920, although they were both living in Lakewood during part of this period and she had written to him and telephoned to him, but was always told that he was not at home or was given some other excuse. In February, 1920, she met her father on the street in Lakewood in a very intoxicated condition and she accepted his invitation to return and live at home, and she found Mrs. Conor and another woman living there with him. She remained there three days; her father and the women were drinking liquor continually, and he was very nervous and could not sleep at night, and she was never given an opportunity to be alone with him. When she left to live with her sister, her father arranged to give her a weekly allowance of $15, to pay her board and clothing. From the time she left the home in February, 1920, she did not see nor hear from her father again. She did not know he was ill and she only learned of his death from a neighbor.

The presence of Mrs. Conor in Lakewood, in April, 1919, when Mrs. Sanford found her residing in her father’s home, is accounted for and explained by the following facts: At that time Mrs. Conor was the wife of one Sidney W. Arnott, a waiter, with whom she had lived without being married from 1911, when her first husband, a man named Harvey, divorced her, until 1915, when Arnott married her. She was a common prostitute in New Orleans and in New York. She was convicted in New York City of being a prostitute or as the keeper of a house of prostitution.

In the early part of April, 1919, accompanied by some woman, she went to Lakewood, and met Mr. Conor. On the night of April 13th, 1919, she returned from Lakewood to the room which she and Arnott occupied on West Eighty-fourth street, in New York City. She then told Arnott of meeting Conor and it was then agreed between them that she should get a divorce from Arnott on the ground of adultery with one Dorothy Gardner, then and now her intimate friend, so that she could marry Conor, whom she told Arnott and others was an old man with plenty of money, whom she could twist about her finger, and could get him to run away with her. She wanted Arnott to get her some morphine or atropine tablets to affect the old man’s heart, and stated she would get some other sleeping potion in excess and make some use of it. It was further agreed at this time between Arnott and his wife that if he gave her free rein in the matter she would give him some money and a ticket to New Orleans, where they had previously lived, and whatever money she obtained from Conor was, as Arnott expressed it, to be split fifty-fifty between them. The following morning she told the landlady and another woman of her meeting with Conor — an old guy— as she described him', with a barrel of money, and who would do anything she wanted. In furtherance of the plan arranged with her husband, Mrs. Arnott, on the morning of April 14th, 1919, returned to Lakewood, without leaving the money or the ticket to New Orleans for Arnott and he did not see nor hear from her again until he met her in this court at the hearing of this cause, although in September, 1920, he learned she had obtained a divorce from him in Virginia, and in April, 1921, he wrote her under the name of Dowling, asking for money, and in reply he was called upon by two detectives, who he claims attempted to intimidate him as a blackmailer, and he then reached the conclusion that as his wife had double-crossed him, as he expressed it, it became his duty to help the Conor children obtain what belonged to them, and prevent her from getting the estate. While Mrs. Arnott and Conor were living at Atlantic City, Conor asked her ttf marry him. She states she then told him her life history and informed him that she was the wife of Arnott. He urged her to get a divorce, so they could be married, and she agreed to do so, and she went to Virginia, where she instituted proceedings on August 19th, 1919, charging Arnott with having committed adultery with Dorothy Gardner. In the meantime she and Conor must have returned to Lakewood, for in June, and also in August, 1919, Conor held her out as his wife and she joined with him, as his wife, in executing and acknowledging before a notary in Lakewood five deeds conveying real estate in which he was interested. Her explanation of this is, that Conor held her out as his wife for his own protection, as he claimed “his children were framing him up to send him away,” and she held herself out as his wife “because she felt sorry for him,” but it does not appear that he had ever expressed any such apprehension about his children’s treatment of him to any of his friends or business associates.

On September 26th, 1919, about five weeks after the commencement of her action, she obtained her final decree of divorce from Arnott, although the clerk of the court testifies the record shows the case had not then matured for hearing, and on the following day she and Conor were married in Virginia. The application for their marriage license was made by her; it was she who answered all 'the questions on the application blank, and stated her own age as twenty-seven and Conor’s age as forty-five, when in fact it was seventy-two, and it was she who swore to the truth of the answers in this application and who paid the clerk his fee for the marriage license, and it was she who made all of the responses for herself and Conor in the marriage service, for Conor appeared to the license clerk and also to the minister at the time of the application for the license, and of the marriage ceremony, to be in a dazed condition.

• After their marriage the couple continued to reside in Virginia for some time and it was during this period that Mr. Conor was told by someone that his daughters had broken into his house in Lakewood and removed a large part of the furniture therefrom; that his daughter, Mrs. Sanford, was talking about his wife; that his daughters had purchased goods in tire stores in Lakewood, amounting to nearly $4,000, and had charged the same to his account. As a result of this information and without personal knowledge of, or inquiry about, any of these matters, testator became very angiv at his children; he stopped the weekly allowance of $15 he had been making to Mrs. Sanford; he terminated any credit his daughters had in the stores in Lakewood, and he caused to be published a notice.in the Lakewood newspaper that he would not be responsible for debts contracted by his daughters, and he also had Mr. Wainright write to Mrs. Sanford to stop talking about his wife, and he gave instructions to have police guard his home, so that his daughters could not remove anything therefrom.

It does not appear from whom the testator received the information that incensed him against his children, although it does appear that only Mrs. Conor was living with him at the time in Virginia and was the only intimate he had and was apparently his only source of information and was the only one he consulted when he acted as stated upon this information. It also appears that all of this information was untrue, except the fact that Mrs. Sanford had been and was talking about: his wife, and was angry over his marriage. The furniture that had been removed was the property of the stepdaughter, Mrs. Pierson, with the exception of two paintings of the grandparents of Mrs. Sandford; and in effecting this removal, the house was not broken into, because Mrs. Sanford had the keys of the home and she and her stepsister had no difficulty in obtaining entrance to it; and the other daughter, Mrs. Whitmore, had no part in any of the matters mentioned. There is no proof that any or all of the children made purchases at the department stores amounting to $4,000, or any other sum, but there is proof, by stipulation of counsel, that Mrs. Conor made purchases at these stores, ostensibly as Miss Conor (Mrs. Sanford), and had the same charged to Mr. Conor, although she denies it.

When Mr. and Mrs. Conor returned to their home in Lakewood he continued his excessive drinking and was intoxicated almost daity, and it also appears that he was encouraged in this dissipation by Mrs. Conor, and that he was nervous and resorted to verinol to enable him to sleep. In the latter part of May, 19$0, three or four days before the will in question was executed, Mrs. Whitmore visited her father at his home and he was apparently glad'to see her, and when she left he gave her a dollar for her children and a pie for her husband, and invited her to visit him again; a few months later she wrote him to learn if she could visit him and received no answer and never again heard from him, and she and Mrs. Sanford were refused permission by Mrs. Conor to see their father after his death unless and until they were accompanied by Mr. Muller, a neighbor. But on the night testator died Mrs. Sanford, notwithstanding Mrs. Conor’s expressed wish that she should not call, having heard of her father’s death, entered the home, without announcement, and found Mrs. Conor and several others drinking and laughing.

Prom what has been shown we have a situation where a weak, nervous man, advanced in years, dependent on some one to manage his business and affairs, is suddenly bereft by death of this support and assistance; to assuage his grief over the loss of his wife and son within a few days of each other, he seeks consolation in the excessive use of intoxicating liquors and sleeping potions; he becomes intoxicated almost daily; he is unable to sleep' at night; he indiscriminately invites people into his home to drink with him, and while indulging in these excesses, with nothing but the ineffectual influence of his young unmarried daughter to deter him, he met the woman who is now his widow, and who with her husband had just conspired to obtain his property; his mental and moral condition is such that, notwithstanding this strange young woman informed him of her life of immorality, and that she was the wife of another man, he insists on marrying her; he goes further, he demands that she get a divorce from her husband; he leaves his home and unmarried daughter and lives for weeks with this woman as his wife; he represented her as his wife when he knew, if he knew anything, that she was still the wife of Arnott; he had her join in executing deeds for part of his property, as his wife, before he married her and while she was still the wife of Arnott, and before she had any interest therein, añd she actively aided and encouraged him in these various matters, if she did not actually suggest them.

'Notwithstanding the opinion expressed by Mr. Wainriglit that testator appeared to understand the nature of the act he was engaged in when he executed the will, the proofs are convincing that testator had not acted in a rational manner nor as an ordinary, reasonable man from the date of the death of his former wife, on whom he had relied for the management of his affairs. This serious loss preying on a mind, apparently none too strong, and thereafter further weakened by the excessive daily use of liquors and drugs made him an easy victim to the machinations of this young woman, in straitened financial circumstances, who had determined to obtain his property for herself.

In furtherance of this design, and of the conspiracy which she and her husband, Arnott, had entered into for its accomplishment, and as evidence of the influence and control which she exercised over testator from the time she met him, we find her persuading him to indulge in the excessive use of liquor; she .lives with him as his wife at hotels for months befora they are married; she holds herself out as his wife, while still married to Amott; she obtains the divorce from Arnott as planned and hap testator on hand in Virginia, so that on the day following the granting of the decree he can marry her to complete the plan, without notice to his family or friends; she attends to all the details of the wedding; falsely swears to his age in. the license application, pays the license fee and even relieved testator from making the customary responses in the marriage ceremony. Toward the completion of her scheme, after the marriage, she and testator continued to reside in Virginia for some time, instead of returning to his home in Lakewood, and while there testator’s mind is so poisoned against his children by false and malicious information, that he becomes angry and condemns them and ceases all communication and relations with, them; he deprives his younger daughter of her weekly allowance, her only means of support.; he holds his children up to public shame by publication in the local newspaper; he places equal blame and the penalty of disinheritance upon Mrs'. Whitmore, who had not even criticised Mrs. Conor, as Mrs. Sanford had done, and who was apparently in harmonious relations with him. On his return to Lakewood, either through indifference or incapacity, he made no effort to verify the information he had received, and when he met Mrs. Sanford on the street he apparently forgot his anger against her and invited her to come and live with him. His treatment of Iris other daughter was even more pronounced, if he was as angry against his children as the widow claims, for he had Mrs. Whitmore visit him while his will was being prepared, in which he disinherited her, and he then treated her with kindness and sent small presents to her husband and children.

The enmity between Mrs. Conor and Mrs. Sanford is not attempted to be concealed, and attention has been given this fact in the consideration of their testimony. Due consideration has also been given to all the parties and also to the sources from which the evidence in the cause has come, with the result that the facts recited are found to be clearly established, notwithstanding the complete and explicit denial that has been made by Mrs. Conor of any of them that are in any way injurious to her. And such denial on her part is shown to he untrue, by the clear preponderance of the evidence, by the peculiar circumstances of the case, by the testimony of disinterested witnesses on all essential features, and by the fact that the credibility of Mrs. Conor as a witness is seriously affected by the fact that she testified' falsely in the orphans court that she had not been married before sh.e married Arnott, although she admitted this marriage on the hearing in this court. In this court she at first testified falsely that she had not been a prostitute and not been convicted as such or as the keeper of a house of prostitution, although later when pressed on this point she admitted it. She further testified falsely that because of his treatment she had not lived with Arnott after 1918, and did not know where he lived, when the facts show that they had lived together for months in New York City in 1918 and 1919, and until she went to Lakewood, and that she wrote to him twice from there in April, 1919, addressing him as “Dear Sidney.”

She also insists she had no part in, or knowledge of, the preparation or execution of the will nop of its contents; that she had great affection for the testator and took no interest in his wealth of property. The utter falsity of this statement is shown not only by the fact that for years she.and Arnott maintained a very unsatisfactory home on very limited means in a furnished room, but by the more significant fact that she knew where the will was kept, and that on the day testator died, and before he had received any attention from the undertaker, she had taken the will from his safe and delivered it to Mr. Wainright, whom she had requested to call on her for that purpose.

Such, conduct cannot be considered consistent with her claim that she was disinterested in testator’s wealth or propertjc

The truth of this matter would probably never have been learned if Mrs. Conor had kept her agreement with Arnott. If she had kept her promise to pay him money and give him half of this estate, the children of the testator would not, I am satisfied, from his appearance and conduct, have had the benefit of his testimony, such as it is, unless possibly they had paid him more than his wife had offered him. The widow’s selfishness in attempting to get rid of him and to keep the testator’s entire estate for herself has helped defeat her schemes. By disappointing and angering him, she has caused him to appear as a witness against her, and this animus on his part, which he freely admits,'has been kept in mind in weighing the value of his testimony, which in many essential features is corroborated by the evidence of disinterested, witnesses.

My conclusion from the evidence presented in this court, supplementing that offered in the orphans court, is that it is clearly shown that from the time testator first met the woman, who is now his widow, and until his death, he was continually dominated, controlled and influenced by her in all his actions and relations, including the execution of this paper purporting to be his ydU, which he did not execute after its preparation, until he had taken it to his home where her dominating influence prevailed; and the exercise of this unfair and undue influence is further exhibited by the fact of the disinheritance of testator’s children, because of testator’s belief, based on false and malicious information, undoubtedly obtained from Mrs. Conor, of their alleged unfilial conduct.

The proofs, further convincing, show that this influence was exercised by Mrs. Conor over the testator in furtherance of the schemes she had concocted with her husband, Amott, to obtain all of testator’s property for herself.

The additions to the record, made by the evidence offered in this court, make it necessary for me to advise that the decree of the orphans court admitting this paper to probate be reversed, and that because of the undue influence exercised by his wife over the testator, this paper should be denied probate as his last will and testament.


source: Caselaw Access Project

author: Leaming, Vice-Ordinary.

license: Public Domain

text:
    In the matter of the appeal from the decree of the orphans court of the county of Atlantic admitting to probate certain paper writings as the last will and testament and codicil of George T. Lippincott, deceased.
    [Submitted January 7th, 1923.
    Determined January 31st, 1923.]
    Will — Probate—Identity of Will Referred to in Codicil— Evidence of.
    On appeal from a decree of the orphans court.

      Mr. William Early, for Agnes May Lippincott, appellant.

      Messrs. McCarter & English, for Mercedes L. MacMahon and Hellen M. Villa, appellants.

      Mr. Clarence L. Cole (with whom was associated Mr. Maurice B. Saul, of the Philadelphia bar), for Margaret B. W. Bartlett, respondent.

      Mr. Thomas L. Gaskill, for Henry C. Lippincott and Mary L. Mathews.
   Leaming, Vice-Ordinary.

The essential facts are sufficiently outlined in the opinion filed in the orphans court.

While the arguments have taken a wide range it is apparent that the single inquiry here involved is purely a question of identity. Is the will which has been presented the will to which testator referred in the codicil which he subsequently executed ?

When executed this will was by testator placed in the cus-, tody of his' attorney for safekeeping. As late as 1915 testator gave directions to his attorney touching this will that fully recognized it as his last will at that time. Two years later, and while this will was still in the attorney’s custody as testator’s will, the codicil now offered for probate was executed, and in like manner by testator was pláced in the custody of the same attorney with the specific direction on the part of testator that it be placed with the will then in the attorney’s custody. These directions of testator were faithfully complied with on the part of the attorney, and after testator’s death the will and codicil were produced by the attorney in the envelope, in which the attorney had kept them.* The testimony of the attorney, which cannot be properly doubted, is that “Mr. Lippincott [testator] handed me that codicil and asked me to place it with the will which I had of his in my strong box in the Atlantic Safe Deposit and Trust Company. I did that, and it remained there, together with the will, until Mr. Lippincott’s death, when I removed the two which were in the envelope and which papers I handed to the surrogate.”

11 is difficult to conceive how testator could have more forcefully identified this will as the will to which the codicil referred. A reference in a codicil to the date of the will ordinarily might afford a more satisfactory identification, but it is far from clear that an erroneous reference to the date of the will would not be fully overcome by acts of a testator of the nature above narrated, in the absence of satisfactory evidence that any other will had at any time been executed by testator.

Little assistance is to be found in adjudicated cases -in which the effort is to identify which of several instruments, either existing or known to have existed, a codicil may.refer to. Here diligent search has found no other will, and the codicil was with this will, and it is not known that testator ever executed any other will, and it is known that testator not only ordered this codicil kept with this will, but also intended that it should be kept with this will as its codicil, since no other sane purpose could have existed. Is this manifest and unmistakable intent upon the part of testator to be overthrown by the circumstance that certain provisions of the codicil do not harmonize with this will? It is by no means unusual for provisions contained in a single will to conflict and disclose in one part of a will a misapprehension on the part of testator of other provisions in the same will, and the same is equally true of the provisions of a will and its undoubted codicil. It is clear that this testator did not intend to make his deceased wife his executrix; but a.t the time he made the codicil he may well have had in mind that some other person was named in his will as his executor. To exclude from probate an adequately executed codicil which testator is known to have caused to be placed with his will as its codicil, which will also had been adequately executed, upon the assumption that it refers to another will, or does not refer to the will with which it was deposited as a codicil, when it is not known that another will ever existed, the evidence of the truth of that assumption should, in my judgment, be strong enough to enable a probate court to say with positiveness and certainty that the codicil was not intended by testator to refer to that will, and this, I think, is equally true whether such evidences are from the language of the codicil or from matters external. In this case the established history of this will and codicil so clearly discloses testator’s intent that the latter was to go with and form a part of the former that the burden of overthrowing that intent as manifest from testator’s acts has been cast upon appellants; that burden they have not sustained.

A decree will be advised confirming the decree of the orphans court.


author: Per Curiam.

text:
    THE CITY OF PASSAIC AND BERNARD GILLEN, COMPLAINANTS-PROSECUTORS, v. LOUIS GROSS, DEFENDANT-RESPONDENT.
    Decided March 3, 1923.
    Summary Review — Record of Conviction — Certiorari will not Lie to Judgment of Supreme Court.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutors, Collins & Corbin, Edward A. Markley and Charles W. Broadhurst, of counsel.
    For the defendant, Weinberger & Weinberger.

   Per Curiam.

The defendant was convicted in the police court of the city of Passaic of the violation of section 72 of an ordinance of the city of Passaic entitled, “An ordinance concerning the general municipal affairs of the city of Passaic, approved July 1st, 1895,” and the amendment and supplements thereto. An order for a summary review of the conviction was allowed by Justice Minturn, on application of the said defendant under the act of 1908. Pamph. L., p. 442; 2 Comp. Stat., p. 1868, pl. 1456.

On December 29th, 1921, judgment was rendered and entered in the Supreme Court as follows: “The court, having inspected the transcript,” &c.

On January 21st, 1922, there was an order entered in the Supreme Court, as follows:

“Whereas under date of December 15th, 1921, Hon. James E. Minturn, one of the justices of the above court, filed an opinion in the above-entitled matter under the title of “The State v. Louis Gross, prosecutor;’ and whereas said opinion at the beginning thereof says: ‘On certiorari, removing conviction;’ and whereas by inadvertence said proceeding before the said justice was so designated; and whereas said proceeding was before the said justice on summary review in accordance with the provisions of chapter 228 of the laws of 1908 (p. 442); and whereas the attorneys of the respective parties desire to correct the record.
“It is, on this nineteenth day of January, 1922, ordered that the proceedings herein be and the same hereby are amended and the said opinion be and the same hereby is amended so as to provide that the said proceedings before the said justice were and are under said chapter 228 of the laws of 1908 aforesaid, and not on certiora/ri.
“Collins & Cokbin,
“Attorneys of Complainants.
“Weinberger & Weinberger,
“Attorneys of Defendant.
“Buie actually entered this 21st day of January, 1922,
“On motion of
“Collins & Corbin,
“AiUorneys of Complainants.
“James P. Minturn,
“S. C. jr

The record does not show that the judgment was amended so as to conform with the provisions of chapter 228 of the laws of 1908 (Pamph. L., p. 442), relating to a summary review of convictions under ordinances, and so far as the record stands there was no order made by the justice under the statute, but in lieu thereof he gave judgment by virtue of his judicial office reversing the conviction:

“The court, having inspected the transcript and proceedings of the recorder of the city of Passaic, returned with the writ of review in this cause, the reasons for reversing the judgment below, and having heard the argument of counsels thereon, and having duly considered the same:
“It is ordered, adjudged and decreed that the judgment of Thomas P. Costello, Esq., recorder of the.police court of the city of Passaic, county of Passaic, aforesaid, be reversed, set aside, made void and for nothing holden and that the said defendant-appellant, Louis Gross, be restored in all things wherein he hath lost by reason of the said erroneous judgment, together with costs to be -taxed.
“Dated December 29th, 1921.
“James E. Minturn,
"Justice of Supreme Court.
“On motion of
“Weinberger & Weinberger,
“Attorneys of Defendant-Appellant.”

The certiorari commands the justice and the- Supreme Court clerk to certify and send a certain order dated December 29th, 1921, wherein the justice reversed a certain conviction, &c., to the Supreme Court. Beferring to the record, we find that it is the judgment of reversal which is dated December 29th, 1921, and which is certified and sent up for review. The certiorari was allowed January 19th, 1922, and on January 21st, 1922, an order was taken amending the opinion filed in the case.

There is no reason assigned that the justice erred in giving a judgment of reversal instead of making an order in conformity with the provisions of the statute of 1908. In fact there was no objection made to the proceedings on that ground. Counsel of prosecutors did call the attention of the justice that in his opinion filed in- the case he stated that it was before him on certiorari, whereas it was before -him as a statutory tribunal, and in that respect the opinion was amended. But we are not concerned with the opinion. We think we are concluded by the record, and as a writ of certiorari will not lie to a judgment of the Supreme Court, the writ must be dismissed, as being improvidently allowed.


text:
    RICHARD DAUGHERTY, PROSECUTOR, v. CHARLES MORGAN AND EDWARD MORGAN, DEFENDANTS. CATHERINE STEWART, PROSECUTOR, v. CHARLES MORGAN AND EDWARD MORGAN, DEFENDANTS. MRS. EDWARD COLLINS, PROSECUTOR, v. CHARLES MORGAN AND EDWARD MORGAN, DEFENDANTS.
    Decided February 28, 1923.
    Construction of Statutes — L. 1922, p. 170 — Rent—Dispossession after Payment of Judgment.
    On certiorari.

    Before Justices Parker, Bergen and Minturn.
    For the prosecutors, Charles C. Colgan.

    For the defendants, Warren Dixon.

   Per Curiam.

The cases above stated were argued together. The defendants were tenants of the plaintiff in an apartment house, and refusing to pay an advanced rent imposed by plaintiffs they brought suits against them to dispossess them for nonpayment of rent. The jurisdictional affidavits are in proper form.

Writs of certiorari were allowed in each case to review the action of the District Court, which defendants move be dismissed as improvidently allowed.

The case against Daugherty was tried, and judgment entered for plaintiffs for dispossession of defendant. The other two cases have not been tried. Within five days after the judgment Daugherty paid into court the increased rent and costs, and after that case was decided the two' other tenants paid into court the increased rent and costs, and all moved to dismiss the suits, but defendants in certiorari refused to accept, claiming that the non-payment of rent forfeited the lease and that the payment was too late. The trial court refused to dismiss and is about to issue warrant to dispossess. It is argued in support of the motion to dismiss that the court having jurisdiction neither appeal or certiorari will lie. This the prosecutors admit, except for the act of 1922. Pamph. L., p. 170.

As to the judgment for possession against Daugherty it is admitted that he paid into court the increased rent after judgment, and as to the Stewart and Collins cases they paid the increased rent into the court before trial. The act of 1922 has for its object the right of a tenant to try the question of the reasonableness of an increased rent, and the determination of the real amount due for rent, and provides in section 6 that when a judgment is rendered for plaintiff and the same cannot be satisfied from the deposit of the former rent, as required by the statute, “or otherwise,” the plaintiff shall be entitled to a warrant for possession. We think the purpose of the act is to allow the tenant to pay a judgment for the increased rent, if that question is detei1mined against him, and that the judgment for possession in the Daugherty case is not in proper form. It should be for rent, and if not paid in five days after notice, then a warrant for possession may be issued. Under the statute of 1922 when a tenant pays the increased rent, found to be reasonable, no warrant for possession will go, but the landlord is bound to accept the increased rent even after judgment.

It is argued that a writ of certiorari will not be allowed in the proceeding by the landlord to dispossess a tenant for the non-payment of rent, if the court has jurisdiction, but in our opinion the court loses jurisdiction under the act of 1922, supra, if the tenant pay the judgment for rent within five days after notice of the judgment, and in this case the increased rent was paid within the time limit. The judgment-to be entered is for such sum as it may be determined to be reasonable, and if judgment is not paid within five days then a warrant for possession can, after notice of it, issue, but not after payment of the adjudged rent. The judgment in this ease was for possession and not rent as the statute provides, but when the increased rent was paid the jurisdiction of the court was ousted, and it had no power to take any step to dispossess the tenant. In the other two eases the same rule applies when after suit and issue framed the increased rent is paid into court, and as there is now no rent due there can be no judgment against them, and the court is without jurisdiction to issue a warrant of dispossession against them, as it threatens to do, and want of jurisdiction of the court in proceedings by a landlord to dispossess a tenant, is assailable by certiorari. The motion to dismiss will be denied, with costs.


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    TOWN OF WEST NEW YORK, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL., DEFENDANTS.
    Submitted November term, 1922
    Decided February 20, 1923.
    Grade Crossing, Expense of Removal — Paving, Curbing, &c., Borne by Municipality.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, Samuel L. Hirschberg.

    For the defendants, Thomas Brown.

   Per Curiam.

The only controversy in this case is, who shall pay for the paving of a bridge built in providing for the removal of the grade crossing of the new ferry 'road with the tracks of ,the New Jersey Junction Eailroad Company, in West New York, under the act (Pamph. L. 1913, p. 91), known as the Fielder act, and in the substitution of a grade crossing, not at grade, for the then existing grade crossing.

While section two of that act provides, “the entire expense of such alterations, changes, relocation or opening,” &c., shall be paid by the railroad, section three, in express words, provides, “the expense of paving, curbing and flagging the highway constructed as the result of the change of grade” shall be borne by the municipality. This, it seems to us, makes it clear that the expense in controversy in this case is to be borne by the prosecutor.

This disposes of the case and leads to a dismissal of writ, with costs.


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    HUYLER’S, PLAINTIFF, v. RITZ-CARLTON RESTAURANT AND HOTEL COMPANY OF ATLANTIC CITY, DEFENDANTS.
    Decided February 20, 1923.
    Contracts — Breach of — Adequacy of Award of Jury — Evidence of.
    For the plaintiff, Roger Hinds and Robert H. McCarter.

    For the defendant, Bourgeois & Coulomb.

   Per Curiam.

This is an action for damages caused to the plaintiff by the defendant’s breach of its covenant to erect a building pn the boardwalk at Atlantic City and put the plaintiff in possession of a store in the Ritz-Carlton hotel building under a written lease. The breach is not denied.

The jury found a verdict for $20,000, and the plaintiff on this rule seeks to set it aside as inadequate. Our examination leads us to the conclusion that we should not be justified in interfering with the verdict of the jury solely because of its amount. We think, however, there were trial errors relating to the evidence which may have affected the plaintiff injuriously and probably did so.

The defendant was permitted to ask the witness Huyler, “Did it ever occur to you that in view of the fact that this store was not built, and they told you it couldn’t be built, that you should lessen the damage to you as much as possible,” to which the witness replied, “I had expressed my opinion all the way through of my desire to lessen the damage in every way possible by taking over the store even at serious detriment to ourselves. I had expressed that all the way through.” We think that the effect of permitting that question was to lead the jury to believe that there was some duty on the part of Huyleris and that for failure to perform its duty the damages should be abated. Inasmuch as the plaintiff was entitled to have his contract performed, and it is not suggested that there is anything else he could do that would answer his purpose, we think the question was harmful.

There is nothing to show that a smaller store than that agreed upon was practical for the plaintiff’s purpose. He was not bound to accept the store next to the comer, as it is called, if he did not think it adequate. The suggestion in the argument that because the defendant broke its contract, .Hnyler’s was under some obligation to make a contract for different premises we think cannot be considered.

There is another trial error which perhaps is even more harmful. The defendant was allowed to show that it did not have the money to build the proposed hotel and that the estimated cost was $3,100,000; that after the defendant had learned that such was the cost they arranged for a loan and found that in the meantime the rise in the market had made the probable cost $3,750,000, so that the loan for which they had arranged would not he sufficient to erect the proposed buildings. The jury could not have failed to infer upon the admission of this evidence that it had something to do with the defendant’s liability, and tbe most natural and perhaps the only inference they could draw would be that! its liability on the contract was ended or reduced in an amount by the inability of the defendant to finance the scheme. No doubt many a contractor who has made a contract which turns out unfortunately would have the same excuse, Irat we think it never has been held that one was excused from the performance of his contract or from paying the damages to which he had subjected the other contracting party merely because of his own financial inability. That doctrine would open the door' wide and we do not know what limit could be put upon evidence of that character. Would he be held to full liability if the difference between the cost and his financial ability was only five per cent, and not held if it was fifty per cent. ? We see no difference in principle in the two cases.

These errors require us to make the rule absolute.


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    JAMES GAVIN, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF JOHN GAVIN, DECEASED, PLAINTIFF-APPELLANT, v. THOMAS O’CONNOR, DEFENDANT-RESPONDENT.
    Decided February 20, 1923.
    Negligence — Injury to Tenant Admitted — Nonsuit Error.
    For the plaintiff, Lazarus & Brenner.

    For the defendant, Sanborn & Sharkey,
   Per Curiam.

John Gavin, a lad about seven years of age, was killed by the falling of a clothes pole in the back yard of a two-family house occupied by his father and family and one Iferwin. The pole was used by the Gavin family as well as the ICerwin family.

When James Gavin, the lad's father, rented the apartment he noticed that the pole had a cleat upon it and afterwards he noticed that it was decayed and worm eaten. After the death of his son he and a police officer found it in a very bad condition so that they could kick the rotten part away with their shoes.

The complaint in the case avers that at the time of the accident one of the apartments was occupied by the plaintiff and the members of his family, including his son, John Gavin, and he thereby became and was entitled to all the rights and privileges of a tenant of the said defendant and this is admitted by the answer.

The learned trial judge directed a judgment of nonsuit against the plaintiff and an exception was duly taken and the nonsuit is assigned]' as a ground of appeal. We think the trial judge was in error. The case is within the' rule of Siggins v. McGill, 72 N. J. L. 263, which has been followed in Perry v. Levy, 87 Id. 670; Charney v. Cohen, 94 Id. 381.

Let the judgment be reversed and the record remitted for a new trial.


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    MORRIS STEIN, PLAINTIFF-APPELLEE, v. JOSEPH M. RYAN AND LOUIS MATTHEWS, DEFENDANTS-APPELLANTS.
    Decided February 20, 1923.
    False Imprisonment — Labor Organizer — Ora! Complaint.
    Before Justices Parker, Bergen and Minturn.
    For the plaintiff-appellee, Henry Carless.

    For the defendants-appellants, Alberico O. Ciccarelli.

   Per Curiam.

This is an action for false imprisonment, growing out of the following facts: the defendant Eyan had, as he said, reason to believe that the plaintiff belonged to some labor organizaation and was endeavoring to organize his employes, and thereupon he went to see a police officer by the name of Matthews, who went with him to the factory and on the way they saw the plaintiff who endeavored to avoid them by crossing the street; that the defendant and the officer followed him, and Ryan put a hand on the plaintiff’s arm and said to the officer Matthews that he wanted the man-arrested, which the officer refused to do without a written complaint, and advised the plaintiff and Ryan to- come with him to the police station, which they did, voluntarily; when there, the plaintiff made an oral complaint, upon which the’ officer at the station caused the plaintiff to be confined in jail; he later required them to appear before the court, which they did, and at the hearing the plaintiff1 was discharged, there being no-proof that he was guilty of any crime. The plaintiff then brought this suit and recovered $150 for the alleged false imprisonment; the judgment was against Ryan alone and did not include the officer, the finding being in his favor, and from this judgment the defendant Ryan appeals. The only question argued is whether there was any false imprisonment at the instigation of Ryan. We th-ink from the evidence there can be no doubt that Byan made .the complaint, although orally, and that thereby he procured the imprisonment of the plaintiff, and that the trial court properly determined the ease, and therefore the judgment should be affirmed, with costs.


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    CITY OF ATLANTIC CITY, PLAINTIFF-APPELLEE, v. AMERICAN STORES COMPANY, DEFENDANT-APPELLANT.
    Decided February 20, 1923.
    Negligence — Injury to City Property — Measure of Damages * Present Value of Property Injured.
    Before Justices Parker, Bergen and Minturn.
    For the plaintiff-appellee, William Frank Sooy.

    For the defendant-appellant, Joseph H. Carr.

   Per Curiam.

It is admitted that the servant of the defendant negligently broke an electric lamp standard placed on one of the streets of the plaintiff, and the only question argued is the measure of damages. It appears from the evidence that the city had one time purchased a large quantity of these standards costing about $60 a piece; that they had some left over which they kept in storage, but owing to the great increase in material new ones were worth $225. The city had bought some to replace those destroyed at that cost, hut in replacing the one which the defendant destroyed they used one of the former lot, and the only question is whether the defendant should pay according to present value or according to the original cost of the one used. The trial court found, for the plaintiff at the present cost, and defendant appeals. We think the trial court was right in fixing the damages at the present value and therefore the judgment should be affirmed, with costs.


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    J. PAUL JAMIESON, PROSECUTOR IN CERTIORARI, v. JOHN A. MARTIN, DEFENDANT IN CERTIORARI.
    Submitted November term, 1922
    Decided February 20, 1923.
    Automobiles — Driving While Intoxicated — Form of Complaint.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, Elmer W. Romine.

    For the defendant, James H. Bolitho.

   Per Curiam.

The writ of certiorari in this case brings up' for review the conviction of J. Paul Jamieson before John Martin, Esq., a justice of the peace of Morris county, for the driving of an automobile when intoxicated.

Jamieson was a county detective of Morris county. On July 16th, 1922, at one A. M., in the township of Eoxbury, Morris county, he drove his car at a high rate of speed,/from the roadway into premises occupied by Mr. Carl A. Nelson, striking the front porch of Mr. Nelson’s dwelling-house and totally wrecking it.

The conviction is sought to be set aside because the complaint fails to charge the violation of any statute or law, and fails to set out any facts disclosing a violation. The complaint is loosely drawn. It charges “that on the 16th day of July, a. i). 1922 (and from thence hitherto), at the township of Eoxbury, in the county of Morris, one Paul Jamieson, of Morristown, did drive a Buick car No. 116244, under the influence of intoxicating liquor with one Frank Dempsey, about one o’clock a. mv and did damage said deponent’s property at Ledgewood, against the law of the state, wherefor he prays that the said J. P. Jamieson may be apprehended and be held to answer to said complaint and dealt with as law and justice may require.” We deem it, however, sufficient. It is not necessary that the statute alleged to be violated should be specifically mentioned in the complaint. 16 Corp. Jur. 353, § 644.

The second ground for reversal is that the record of the conviction is fatally defective because the court does not refer to any evidence upon which he bases the conviction. The record of the conviction sets forth the evidence of some thirteen witnesses respecting the intoxication of Jamieson. One of these witnesses was a Dr. Mutchler, who said: “I am -a practicing physician at Dover, New Jersey. I was called to police headquarters at Dover on the morning of July 16th, 1922, about one-fifty. I examined J. Paul Jamieson, the defendant, there at that time. He was suffering from acute alcoholism. He was not in a fit condition to drive an- automobile. He was incoherent in speech, his eyes were dilated, he had the odor of whiskey upon him, and he was unsteady. He was certainly not competent to drive a car.”

This testimony is set forth in the record of the conviction. After setting forth the testimony, the record of the conviction says, “all of which testimony convinced me that defendant was guilty of the offence charged against him as aforesaid.”

It seems to us that the record of the conviction is full and complete. These are all of the reasons argued upon the brief for the prosecutor. The conviction is affirmed.


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    MARIA JANOSIK, PLAINTIFF-RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, DEFENDANT-APPELLANT.
    Submitted December 21, 1922
    Decided February 20, 1923.
    Insurance — Life—False Statements in Application Though not Intentional.
    On appeal from the District Court.
    Before Justices Parker, Bergen and Minturn.

      For the respondent, Irving Meyers.

    For the appellant, McCarter & English.

   Per Curiam.

This is a suit brought by the beneficiary named in a life insurance policy against the company issuing that policy, in which suit there was. a judgment below for the plaintiff. The case, as disclosed on the evidence, is similar in its essential features to the case of Guarraia v. Metropolitan Life Insurance Co., 90 N. J. L. 682. There can be no question but that, when the insured made application for the policy, he had been attended by a physician within two years, &c., and that the answers to some of the questions propounded in the application were false answers. This, indeed, is not denied, but the evidence tended to show, and the jury evidently found after the matter had been submitted to them by the court, that!'the answers, being representations and not warranties, both under the statute and the policy, were not intentionally false, and .this on the theory that the insured) was ignorant of English, and that, as the jury found, he was unaware that false answers were going down on the paper. We cannot say that the court was in error in submitting this question to the jury or that the jury was without any legal justification in so finding. Counsel argue that the case is to be distinguished because the present application contains a sort of a general warranty that all the answers thereto were understood and had been truthfully answered, but points similar .to this have been several times passed upon in our courts in the ease of releases, and it has been held that the matter still remains for the jury to decide as to whether, the party signing the paper was misled as to its contents.

It is claimed for the appellant that error was committed in refusing to charge each of two requests submitted by counsel. We think they are both faulty, as they are predicated solely on the mere knowledge of the assured that he had been treated by a physician or that he was not in sound health, whereas the element of knowledge that he was then stating to the contrary is omitted from the request.

The judgment under review will be affirmed.


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    THRASYBULE D. LAZARIDES, DOING BUSINESS AS T. D. LAZARIDES & COMPANY, PLAINTIFF, v. WILLIAM STEVENSON, DEFENDANT.
    Submitted November term, 1922
    Decided February 20, 1923.
    Contracts — -Action to Recover Balance Due on Order— Testimony does not Support Verdict.
    On rule to show cause.
    Before Justices Kalisch, Black and Katzehbach.
    For the plaintiff, Absalom P. Bachman.

    For the defendant, Elmer W. Romine.

   Per Curiam.

This case is before us on a plaintiff's rule to show cause. The action was instituted to recover from the defendant the balance due upon orders for automobile specialties to be made by the plaintiff according to directions and patents of the defendant. The orders were given on October 20th, November 23d,-November 24th and December 1st, 1916. The defendant was to receive financial assistance from a Mr. Burrows. A corporation was to be formed for the conduct of the business. The. certificate of incorporation creating the Stevenson Automobile Appliance Corporation was dated November 8th, 1916, but was not filed with the secretary of state of New York until December 4th, 1916, and not filed with the clerk) of New York county until December- 14th, 1916. The company appears never to have been properly financed, and was admittedly a defunct concern at the time of trial. Deliveries of the goods ordered were refused. My. Burrows paid $1,000 on account and then, according to the defendant’s testimony, failed to give the further financial assistance promised. A suit was instituted in New York by the plaintiff against Burrows and resulted in recovering $600 additional from Burrows, which was applied in reduction of the plaintiff’s claim. The present action to recover the balance alleged to be due was then commenced. The answer set up that the contract was made with the corporation and not the defendant; that payment had been guaranteed by Burrows; that the plaintiff had agreed to look to Burrows for payment, and that there had been an accord and satisfaction at the time of the receipt of the $600 from Burrows. The jury found a verdict for the defendant. The testimony, we think, does not support this verdict. The corporation had not been formed at the time the orders were given by the defendant. We do not believe that the plaintiff would or did extend credit to a corporation not yet formed and of which he knew nothing as to its resources. The weight of the evidence is with the version of the plaintiff that the contracts were made with the defendant as an individual trading as the Stevenson Automobile Appliance Company. The other defences set up are also not supported by the weight of the evidence. The rule to show cause will be made absolute.


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    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ABRAHAM MEISEL ET AL., PLAINTIFFS IN ERROR.
    Submitted November term, 1922
    Decided February 20, 1923.
    Crimes — Breaking and Entering — Error not Found.
    On writ .of error.
    Before Justices Kalisch, Black and Katzenbach.

      For the plaintiffs in error, Harold. Simandl.

    For the defendant in error, John G. Bigelow, prosecutor of the pleas.
   Per Curiam.

The defendants were convicted of breaking and entering the store building of David F’inkelstein, in Newark, and stealing therefrom two barrels of alcohol, valued at $1,100. The defendants each file thirteen assignments of error and thirteen specifications or reasons for reversal.

They are argued under seven points in the brief of the defendants. First, answer to question put to witness, John A. Fell; no objection. Second, criiicism of the charge in reference to what Aldeman, an accomplice, said to the prosecutor when he made -his plea. The word “defendant” is used in the printed book; this doubtless meant the defendant Aldeman. This was not error; so point 3, criticism of the use of the word “must,” by the trial court. This is hypercritical. Fourth, “Who is telling the truth,” that is your job “to decide.” ' We fail to see wherein this was error. So, points 5 and 6, the criticism of the charge, is without legal merit. They need no discussion. Seventh, because the verdict rendered is against the weight of the evidence; we find this is not so.

Finding no error in the record, the judgment of the Essex County Court of General Quarter Sessions is affirmed.


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    TOWNSHIP OF MAPLEWOOD, RELATOR, v. BOARD OF EDUCATION OF SCHOOL DISTRICT OF THE TOWNSHIP OF SOUTH ORANGE, RESPONDENT.
    Decided February 20, 1923.
    Assessments — For Improvements — Against School Property— Are Assessments for Benefits Different from Taxes."
    Before Justices Parker, Bergen and Minturn.
    For the relator, Samuel D. Williams.

    For the respondent, Rilcer & Riker.

   Per Curiam.

The relator levied, an assessment against the land of respondent for a public improvement which it refuses to pay, and the relator applies for a rule to- show cause why an alternative or peremptory writ of mandamus should not issue to cqmpel it to levy a tax for that purpose. The agreed facts show that when the respondent came into existence as a school district, the territory of the township of Maplewood and of the village of South Orange, were one municipality under the name of the township of South Orange, constituting a single school district. Subsequently South Orange was separated from the township under the name of village of South Orange, and the township changed its name to Maplewood, and under the law the village remained a part of the township school district, and since then the schools of the two municipalities have been under the management of the relator, and taxes levied under the school law for one district. The board of education refuses to pay because it claims that the property of school districts are exempt from the payment of an assessment for local improvements. The real question seems* to he whether an assessment for benefits is different in effect from taxes, it being the. law that school property is not taxable. We think that an assessment to raise money to- pay a public burden is not a tax within the meaning -of the statute relating to .taxation, but the trouble is there does not appear to be any statute establishing the power of a school district to- raise money for any such purpose. This writ, if allowed, will require the inclusion of the assessment in’ a tax levy, and we cannot find the authority. The district can only raise money for educational purposes and an assessment is not within such purpose as defined by law. If it is a lien on the property it can be enforced in another way than by mandamus. We think the rule to show cause should be denied, as the writ would require the raising of money by taxation without authority of law. The rule is denied, with costs.


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    WALTER V. H. MacEVOY, PROSECUTOR, v. ANGELO J. A. BENNELL AND HELEN L. BETTS, DEFENDANTS.
    Submitted November term, 1922
    Decided February 20, 1923.
    Conviction — Driving Automobile — Complaint must Show Violation of Law — Failure to Stop after Accident.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor, Elmer W. Romine.

    For the defendants, King & Vogt.

   Per Curiam.

On June 17th, 1922, Helen- L. Betts was driving a Ford sedan car along the -right-hand side of a highway leading from Mt. Tabor to Morris Plains, in the county of Morris. Walter V. H. MacEvoy was driving an automobile in the ‘opposite-direction. He came from behind another car which he was passing and struck the Ford sedan of Mrs. Betts, injuring her and the other occupants of the car. Three complaints were made against Mr. MacEvoy, one for driving a car when intoxicated, one for driving a car recklessly, and one for failing, after am accident, to stop and render assistance. The charge for intoxication was dismissed. Mr. MacEvoy was convicted before Angelo J. A. Bennell, a justice of the peace, of Morristown, on the two other charges. These convictions have been removed to this court by writs of certiorari for review. They have been argued together and will be decided together.

The complaint for driving recklessly was in the following language: “Walter V. H. MacEvoy did operate and drive an automobile * * * at an excessive rate of speed and at a rate of speed greater than was reasonable, and in a reckless manner, and in such a careless and reckless manner, and at such an unreasonable rate of speed as to endanger tire life and limb or to injure the property of other persons contrary to and in violation of section 16, chapter 200, of the laws of 1921, New Jersey, entitled,” &c.

The prosecutor contends that this complaint is defective in that it does not allege what rate of speed Mr. MacEvoy was driving and is barren of any allegation disclosing facts which would show how or in what manner Mr. MacEvoy was reckless. 'In a complaint the charge should be so set out that the accused may know what he is called upon to meet. Peer v. Dickson, 82 N. J. L. 367.

An examination of the sixteenth section of the Motor Yehicle act, under which this complaint is brought, shows that certain rates of speed may be maintained, but not exceeded. Then it is stated in the act under what circumstances a speed of one mile in seven minutes may be maintained, under what circumstances a speed of one mile in five minutes may be-maintained, under what circumstances a speed of one mile in four minutes may be maintained. Elsewhere a speed of thirty miles per hour may be maintained. Then follows a provision which reads as follows: “Provided, however, that nothing in this act contained shall permit any person to drive a motor vehicle recklessly, or at any speed greater than is reasonable, having regard to the traffic or use of the highways or so as to endanger the life or limb or to injure the property of any person.”

It will be observed that the complaint does not set forth any violation of speed by the prosecutor at the time of the accident. It embodies the proviso of the act as above quoted. We deem the complaint faulty in that it does not set forth in what particulars the prosecutor was, at the time of the accident, violating the provisions of the act. Upon this ground, the conviction for reckless driving will be set aside.

The complaint for the failure to stop is in the following language: “Walter V. H. MacEvoy did operate and drive an automobile * * * and that while operating said automobile he did cause injury to the said Helen Betts and to divers other persons, and that he did not at once stop to ascertain the extent of the injuries and render such assistance as was needed, contrary to and in violation of subdivision 4 of section 14, chapter 209, laws of 1921,” &c.

The justice of the peace, in making up' the record of conviction upon this complaint, found the defendant guilty not only of failure to stop to ascertain extent of the injuries and to render assistance, but also found the defendant guilty of reckless driving and imposed a fine of $10 for each offence. He likewise, in the complaint for reckless driving, fined the defendant. $10 for this offence and the same sum for the offence of failing to stop' after causing injury. The records of the conviction in each case are defective. Each record includes a finding not warranted by the complaint. The conviction for failing to' stop after causing injury is set aside for this reason.


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    IN THE MATTER OF THE APPLICATION OF CHARLES K. RICHMOND, TO BE REINSTATED AS A MEMBER OF THE NEW JERSEY BAR.
    Submitted December 21, 1922
    Decided February 20, 1923.
    Practice of Law — Suspension—Reinstatement—Reasons for Refusal.
    On application for reinstatement to the har.
    Before Justices Parker, Bergen and Minturn.
    For the applicant, Jacob L. Newman.

   Per Curiam.

The applicant, on November 1st, 1922, was suspended from the practice of Jaw for a period of two years after a full hearing before the board of bar examiners, whose recommendation was concurred in by this court. He had then been a member of the bar for about five years, and the offence of which he was found guilty was that of interfering with a juror actually in the performance of his functions in a pending case that was, on trial at the-time. The board of bar examiners stated that but for the comparative youth and possible inexperience of the attorney in question they would be inclined to recommend that his name be stricken from the roll, but had concluded that leniency might be extended and, therefore, a suspension was ordered instead of an entire disbarment. After the period of a year the applicant comes and asks that the suspension be now lifted. He says he has been made to realize the .character of his offence which, no doubt, is quite true; that he has no other means of support; and that in the interim of one year he has married. We are quite unable to see that these reasons should have any weight in moving us to recommend any reinstatement at this time. The suspension of a lawyer from practice naturally and necessarily involves a deprivation of income which he would otherwise have been able to earn and if he chose, in the face of his suspension, to enter into the responsibilities of marriage, it is his affair and not that of the court. Furthermore, the penalty imposed was one deemed by the court to be fitting at the time and lenient in view of the offence; and the present application assumes the aspect of a challenge ■tto the propriety of that decision.

The application will be denied.


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    HENRY WALZ, APPELLEE, v. ADOLFO NICOLOSI, APPELLANT.
    Submitted December 21, 1922
    Decided February 20, 1923.
    Error — Must be Specified — Appeal Heard Solely Thereon.
    On an appeal from the Hoboken District Court.
    Before Justices Parker, Bergen and Minturn.
    For the appellant, Alberico O. Ciccarelli.

    For the appellee, Benjamin E. Gordon.

   Per Curiam.

The “specification of errors of law” filed and relied on in this case assigns no error of law whatever. The first paragraph is that the judgment was “contrary to law;” how, does not appear. The second, that the judgment was contrary to evidence and the weight of evidence. The third, fifth and sixth, that the “evidence disclosed” or “showed” certain alleged facts; and the fourth, that the evidence failed to disclose any priority of contract. This is all. Not one ruling by the trial court claimed erroneous is pointed out. Under rule 145, the appeal is to be heard solely on the points of law so specified. Where none is ¡specified, the judgment will be affirmed. Kearns v. Waldron, 76 N. J. L. 370; Champlin v. Barthold, 82 Id. 13. Such will be the order in this case.


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    W. M. DICKINSON COMPANY, PLAINTIFF-APPELLLANT, v. HENRY REINGRUBER AND MAY REINGRUBER, DEFENDANTS-APPELLEES.
    Decided February 20, 1923.
    Contracts — Sale of Land — Commissions—Revocability of such Contracts — Oral Agreements.
    Before Justices Parker, Bergen and Minturn.
    For the plaintiff-appellant, William Abbotts, Jr.

    For the defendants-appellees, Joseph E. Hunt.

   Per Curiam.

The defendants, husband and wife, executed and delivered to plaintiff a writing granting to them the sole and exclusive right to sell their property for the period of six months and thereafter until given a notice of thirty days to terminate the authority thus given. The plaintiff was to list the property with all the members of the Trenton Beal Estate Board, which was done, and also advertised the property in a Trenton newspaper. The defendants agreed to pay a commission if the property was sold by them, or through the instrumentality of plaintiff, or of any other person during the “term of this contract.” Within the period defendants sold the property and thereupon plaintiff brought ¡suit for commission. The defence being a revocation of the contract. The jury found for defendants and plaintiff appeals. The grounds of appeal are: (a) refusal to direct for plaintiff; (b) that court charged that it was a revocable contract; (c) refusal to charge request “the defendants had no right to terminate contract until after six months, or thereafter without thirty days’ notice in writing;” (d) defendants had no right to terminate contract at any time by verbal notice. The request to direct for plaintiff was properly refused becanse there was proof that .plaintiff had abandoned the contract by notifying defendants that they would make no further efforts to sell the property: This was denied by plaintiff and thus a jury question raised. The alleged errors in the charge and refusals to charge are all based on the holding of the court that the contract was orally revocable,' relying on Eltinger v. Loux, 115 Atl. Rep. 384, holding that the authority given in that case was without mutuality or consideration and was simply a naked revocable power. This is an entirely different contract, for there was a consideration in that plaintiff was to list it with the Trenton Real Estate Board, and advertise it, which was done.

In addition to this the authority was exclusive, and an express promise to pay if defendants sold. We do not consider this a revocable contract until the end of the six months, and not then until thirty days’ notice is given. This contract was undoubtedly made in that form to protect the plaintiff against loss for advertising of which defendants had the benefit. The charge was wrong in law and injurious to the plaintiff, and therefore the judgment should b» reversed.


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    STATE OF NEW JERSEY, RESPONDENT-COMPLAINANT, v. ROBERT M. SHAW, PROSECUTOR-DEFENDANT.
    Submitted November term, 1922
    Decided February 20, 1923.
    Conviction — Automobile Act — Driving While Intoxicated — Act not Unconstitutional.
    On certiorari.

    Before Justices Kalisch, Black and Katzenbach.
    For the prosecutor-defendant, King & Vogt (of counsel, Harold A. Price).

      For Angelo J. A. Bennell, recorder, Nathaniel C. Toms.

   Per Curiam.

The writ of certiorari in this case removed to this court for review the conviction of Robert M. Shaw before the recorder of the town of Morristown, upon a complaint alleging violation of section 14, subdivision 3, of the Motor Vehicle act of April 8th, 1921. Pamph. L., p. 643. This section of the Motor Yehicle act provides for a punishment of not less than thirty days and not more than six months for driving or operating a motor vehicle under the influence of intoxicating liquor or drugs. The record shows that on June' 10th, 1922, Robert M. Shaw was arrested for driving an automobile while intoxicated and a complaint was made against him under a supplement to an act entitled “An act concerning disorderly persons/’ approved March 12th, 1913. A warrant was issued on this complaint and Shaw was arrested, convicted and .sentenced to a term of thirty days in the Morris county jail. Application was made to the Morris County Court of Common Pleas to review the conviction, and the court dismissed the complaint and set aside the conviction on the ground that the act of March 12th, 1913, had been expressly repealed by chapter 184 of the laws of 1921. The act repealed was substantially re-enacted in the revision of the Motor Yehicle act of April 8th, 1921. When released, a new complaint wais made against the defendant under the new Motor Yehicle act. The defendant was apprehended, convicted and sentenced in this proceeding to thirty days in the Morris county jail. The defendant, at the hearing, offered the plea of autrefois acquit, which was overruled.

The defendant, as prosecutor, contends that the overruling of this plea' on defence was erroneous. We think not. While the law is that a person cannot be put in jeopardy twice for the same offence, the first proceeding must be one under which the court has jurisdiction of both the person and offence. This was not so in the present ease in the first proceeding. The court had no jurisdiction under the complaint as made. The proceedings were invalid, were promptly set aside, and the defendant served no sentence under the conviction.

The second point raised is that the Motor Vehicle act is unconstitutional because it does not accord to a defendant the benefit of indictment and trial by jury. This ground is not well taken. It was disposed of in the case of State v. Rodgers, 91 N. J. L. 212.

The prosecutor further contends that the Motor Vehicle act is unconstitutional because it provides for an appeal from the judgment of a magistrate to the court of Common Pleas, and not to a criminal court. It 'is unnecessary for us to consider this point.

The prosecutor has invoked the use of one of this court’s prerogative writs, the writ of certiorari, to have the proceedings taken against him reviewed. lie has not been put in a position to be harmed by this provision of the statute. The judgment of conviction is affirmed.


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    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GUY DRAGONE, PLAINTIFF IN ERROR.
    Submitted November term, 1922
    Decided February 20, 1923.

      Crimes — Disorderly House — 'Specifications of Error.
    On writ of error.
    Before Justices Kalisch, Black and Katzenbach.
    For the plaintiff in error, John A. Matthews and Croslcen & Moriarty.

      For the defendant in error, John O. Bigelow, prosecutor of the pleas.
   Per Curiam.

The defendant was convicted of keeping a disorderly house in the city of Newark. He files eight assignments of error and twenty-nine specifications of causes for reversal. They are argued in the brief as follows:

First, error not to strike out the testimony of John A. Feld, as to the disposition made of sixteen girls in the police court. No objection was made until after the" answer to the question had been given. This was too late. State v. Hummer, 81 N. J. L. 430; State v. Young, 93 Id. 396; 9 N. J. Dig. 559, ¶ 191 et seq.

Second, "Q. What is their reputation. A. I just know them of being girls who do not work.” This was harmless.

Third, “Q. Is this where Miss Craig and Miss Curtis live?” Not answered.

Fourth, is considered with Nos. 26 and 28 — refers to the court’s refusal to direct a verdict.

Fifth, rejecting the answer to a question put to Guy Dragone, the defendant, this was immaterial to the issue being-tried, so, No. 6, refusing to put in evidence the records of the case of the State v. Guy Dragone for selling liquor in violation of the statute in November, 1921; tried before a judge of the Court of Common Pleas, acting as a magistrate.

Seventh, criticism of the charge in -which the judge prefaced the same by a series of questions, such as, “Was this a place in which,” &c. The criticism aimed at the charge in this respect is not justified. It is without legal merit.

Eighth,' permitting the testimony-of a witness, John A. Feld, to be read at this request of the jury: “We wish the evidence of the officer who claims, that he was solicited in the cafe by one of the girls.” This is not error, but we think such practice is not to be commended and should not be encouraged.

Ninth and tenth, admitting the testimony of the state’s witness, Edsel T. Badgley, “Q. What then did you do ?” the answer, “A bad place and had a bad name.” Objected to, but no ground of objection stated, and therefore will not be considered.

Eleventh and nineteenth, permitting the witness, Edsel T. Badgley, a police officer, to testify 'that some of the girls later were turned over to the board of health, and a witness, Melvin R. Ryan, a record nurse, to testify as to the names of women appearing on her records. It is difficult, for us to see how this was injurious error. The same with No. 12. Permitting a witness, Emile Heifers-, to testify: “Someone told them and tipped them off that we were coming.” This was not objected to-.

Fourteenth, fifteenth, eighteenth and twenty-fourth, error in admitting in evidence state’s Exhibits No. 1, No. 2, No. 3, No. 4, No. 5. These refer to some half dozen half-pint whiskey bottles. The record does not show that they were 'put in evidence. The objection, however, seems to be that they were obtained without a search warrant. There is no legal error here.

Sixteenth, "Q. Who are they? A. Louise Curtis and Eleanor.” No objection, a motion to strike out too late, see No. 1.

Seventeenth, permitting a witness, John A. Feld, to use a typewritten copy of a pencil notation made by him to identify the names of six women. This was not: error.

Twentieth, twenty-first and twenty-second, testimony of the state’s witness, James J. Gorman. There is no objection noted to this testimony in the record, then, besides, the witness was cross-examined at length on the subject-matter of the testimony, now objected to.

Twenty-third, permitting witness, Alexander Schmidt, to contradict testimony of a witness, Mrs. Elizabeth Smith, in another proceeding on cross-examination. The defendant, on direct examination, first referred t:o the witness Elizabeth Smith. It was then proper to let the state cross-examine the witness on the point.

Twenty-fifth, refusal to charge two requests: First as to knowledge and second as to habitual sale of liquor. The subject of both of these requests was fully covered by the charge. The trial judge is not bound to use the language of a request in the charge to the jury. •

Fourth, twenty-sixth and twenty-eighth, alleged error, in denying the defendant’s motion, at the close of the state’s case, to direct a verdict in behalf of the defendant. This was not error. State v. Plough, 88 N. J. L. 425. The verdict in the case was against the weight of the evidence under Pamph. L. 1921, p. 951, ch. 349. This was not error. The verdict is fully supported by the evidence in the record.

Twenty-seventh, injustice was done to the defendant by the method in which the trial was conducted on the part of the state, just how is not made clear to us.

Twenty-ninth, the verdict and judgment against the defendant were erroneous and should be reversed. Not so. Finding no error in the record.

The judgment of the Essex County Quarter Sessions is affirmed.


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    WILLIAM LYNCH AND ANNA LYNCH, PLAINTIFFS, v. LAWRENCE WEBBER, DEFENDANT.
    Decided February 27, 1923.
    Negligence — Automobile—Measure of Damages According to Evidence.
    On. rule to show cause.
    Before Justices Kalisch, Black and Katzenbach.
    For the rule, Edmund A. Hayes.

      Contra, Robert H. Doherty.

   Per Curiam.

The plaintiff, Anna Lynch, a minor, by her next friend, her father, brought an action against the defendant for damages sustained by her, resulting from an injury inflicted upon .her through the negligent operation by the defendant of an automobile on the Hudson boulevard. The father, William Lynch, joined in the action to recover for loss of service, medicines and medical attention. The jury found a verdict of $3,000 in favor of Anna Lynch and a verdict of $1,800 for her father. The only ground relied on for setting aside these verdicts is the allegation that they are excessive.

According to the testimony, Anna was injured on September 2d, 1921, and on May 24th, 1922, at the time of her trial, she was eighteen years of age, and was still suffering from the injury sustained by her. The character of the injury was a compound, comminuted fracture of the lower leg with considerable displacement of the bone fragments. She was still suffering from the wound, the opening of which was still there and through .which little pieces of bone have been exfoliated from time to time; that the probabilities were fairly good of the wound closing but no time when was set. She was in Christ hospital for four months. She was a telephone operator at the time of her injury, earning $18 a week. The father paid $300 to Christ hospital and $150 to Dr. Bogardus and $20 for X-ray plates, and lost the services of his daughter, to whose wage he was entitled, and there was a probability at the time of the trial that there would yet some time elapse before a complete healing would take place, from which circumstances a fair inference would be further suffering by the daughter, and a further loss of her earnings, and further expenditures to effect a cure.

But even if the verdicts be regarded as higher than they should have been, we cannot say that they are so excessive as to shock the conscience or evince that they were the result of mistake, partiality, passion or prejudice.

Rule discharged, with costs.


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    THE STATE v. JAKE LONDON ET AL.
    Decided February 28, 1923.
    Weight of Evidence — Manufacture of Burglar’s Tools — indictment for Breaking and Entering.
    On error to the Essex Quarter Sessions.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the plaintiffs in error, John W. McGeehan, Jr.

    For the state, John O. Bigelow, prosecutor of the pleas, and J. Victor D’Aloia, assistant prosecutor.
   Per Curiam.

The grand jury of Essex county presented an indictment against Jake London, Issy Presser, Louis Silver and Jack Brice, charging that they criminally conspired to break and open the safe of one Emil Germanas, in his store, in the city of Newark, and unlawfully steal and carry awayUhe contents thereof, and that, in the execution of this conspiracy, Silver drew a design for an implement adapted for forcing or breaking open safes, and that the others caused the implement to be made. When the trial of the indictment was moved there was a severance as to the defendant Brice, and the trial proceeded against the other three, ■ who were convicted in manner and form as .charged in the indictment.

It is to be observed that the indictment does not charge the breaking into the safe or any attempt to do so, but merely the entering into a conspiracy to do so, and the manufacturing of a tool to be used for the purpose. There was proof that Silver did design such a tool, and that the other defendants, or some of them, caused it to be manufactured; but our examination of the testimony .sent up with the writ of error fails to disclose any fact which supports the averment of the state that this tool was manufactured for the specific purpose of breaking into and robbing the safe of Germanus. Prom anything that appears to the contrary (with the exception hereafter stated), the manufacture of this so-called burglar’s implement might have been for the purpose of robbing a safe in any store in the city of Newark; and, of course, in order to sustain a conviction on this indictment, the burden rested upon the state to prove beyond a reasonable doubt that the conspiracy was for the specific purpose laid in the indictment. As we have said, we find no evidence at all upon this point, except an alleged confession of Presser that the purpose for which the tool was manufactured was the robbing of the Germanus safe. But that confession, of course, was only evidential against him'. It was not originally made in the presence of the other defendants, and, although it was repeated afterward at police headquarters in the presence of London, who was brought in for the purpose of being confronted with Presser, he (London) absolutely denied the existence of any such conspiracy ^ as that indicated by PressePs confession.

One of the grounds upon which we are asked to reverse is that the verdict found by the jury was against the weight of the evidence, and our conclusion is that this point is well taken. It is true that the verdict against Presser would have been justified if there had been anything in the case to show a corrupt agreement between him and any one of the other defendants; but, in the absence of such testimony, it seems to us manifest that there could be no finding of guilt on his part unless there was proof which would justify the jury in associating one of the other defendants in the criminal agreement.

The next reason upon which a reversal is asked is based upon the refusal of the court to charge the following request: “If you find that the defendant Louis Silver did not participate in the agreement to enter the place of Germanus with intent to break open the safe, as charged in the indictment, then, even though there was an agreement to commit another crime, he cannot be found guilty of the crime as charged in this indictment.” The same request was submitted on behalf of each of the other two defendants. That the request contained a proper rule of law cannot be successfully disputed. It is true that the refusal to charge it was not absolute, but was qualified by the statement on the part of the court that it was refused to the extent, that it had not been theretofore charged. Our examination of the charge to the jury fails to disclose anything contained in it which embodies the instruction requested, and, this being so, the refusal to charge was harmful error.

The only other ground upon which a reversal of this conviction is sought is based upon the following instruction to the jury: “If the facts proved are, in the opinion of the jury, explainable on any reasonable hypothesis other than that the prisoner is guilty, then the accused is entitled to an acjquittal, but if they are not, in the opinion of the jury, explainable on any reasonable hypothesis other than that of guilt, then they are sufficient to warrant a conviction.” The vice of this instruction, it is argued, is that it permits the jury to convict unless they are able to discover a reasonable hypothesis arising out of tire facts upon which the innocence of the defendants of the charge laid against them might be rested, and so deprives them of the right to be acquitted unless the jury, after a consideration of all the proofs, are satisfied beyond a reasonable doubt of their guilt. It is true that the court in another part of the charge properly instructed the jury upon the question of reasonable doubt, but whether the effect of that instruction was to wipe out the impression which the portion of the charge under consideration may have made on the minds of the jury is quite uncertain. We do not, however, find it necessary to determine whether or not the instruction contains harmful error, because of the fact that this judgment must be reversed for the reasons already indicated. We content ourselves with saying that, in its essence, it is quite similar to that which was condemned by this court in the case of State v. Tischler, decided by this court at the February term, 1922.

For the reason indicated, the judgment in this case will be reversed.


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    THE STATE v. ADAM DRESCH.
    Decided February 28, 1923.
    Alleged Error of Trial Court In Ruling on Evidence, In Charge to Jury — Verdict Alleged Contrary to Evidence.
    On error to Essex Quarter Sessions.
    Before Gummere, Chief Justice, and Justices Swayze and Trenchard.
    For the plaintiff in error, Harold Simandl.

    For the state, John O. Bigelow, prosecutor of the pleas.
   Per Curiam.

The defendant, a member of the police force of the city of Newark, was convicted upon an indictment charging him with an assault and battery on one Frank Tichenor, alleged to have been committed in one of the county parks, known as Weequahie park, on the 15th of March, 1922, and he has sued out the present writ of error to test the validity of that conviction.

Three grounds are urged for the reversal of this conviction. The first is rested upon an alleged error of the trial court in ruling upon evidence; the second upon alleged error in the charge to the jury, and the third upon the proposition that the verdict of guilty was contrary to the weight of the evidence.

The first ground of reversal is directed at the admission by the trial court, over the objection of defendant’s counsel, of the following question, asked of Lieutenant Harris, the officer in charge of the sixth police precinct of the city of Newark: "Is or is not Weequahic park included as a part of the patrol duty of the officers who patrol the posts bordering on the park?” The park had been shown to be within the territory of the sixth precinct, and it had also been shown that it was a part of the duty of the defendant, as a member of the police force, to patrol such portions of the precinct as were assigned to him by the officer in charge of it. The proof showed that the assault upon Tichenor was committed by a person dressed in the uniform of a Newark police officer, and the purpose of the question was to show that this man, if he was a member of the Newark police force, had no business in the park as a part of his patrol duty. The ground of the objection was that "a police officer has the right to arrest anyone if he sees a crime committed.” The soundness of this proposition cannot be controverted; but it had no bearing upon the question of the admissibility of the evidence objected to, for -the reason that there was no pretence that the assault in question was committed upon a man who was engaged in the commission of a crime. On the contrary, so far as the proof showed, it was absolutely without legal justification. The ground of objection being without merit, it was, consequently, proper for the trial court to refuse to exclude the question for that reason. It may be added that the testimony was properly admitted for the reason that it tended to show that the defendant, if he was the person who committed the assault, was not in the park in his official capacity, and had no right to interfere with Tichenor, so long as he was not in fact violating any law of the state or the city.

The next objection is to the following instruction to the jury. “You have had before you the officers on the posts surrounding or near the park, or who say they were on those posts. You have had an opportunity to observe them, to compare their appearance with that of the defendant, and j'ou maAr think it important to consider this evidence because it is evidence in the case — upon the issues in this case — and particularly on the question of identification, the defendant’s identification by Mr. Tichenor and Miss Clinton” (Miss Clinton being in Mr. Tichenor’s company at the time the assault was committed). The propriety of this instruction is challenged upon the ground that the court by it restricted the latitude of the comparison which the. jury was compelled to make because of the fact that the evidence did not shoAV that every member of the police force on the posts surrounding or near the park had been produced before the jury. The answer to this contention is that there was no compulsion exercised upon the jury in that regard; and, in addition, it may be said that the mere fact that it did not appear that all the members of the police force referred to were present before the jury only affected the weight to be given to the comparison and not the question of its propriety. It is further objected that by this instruction the jury was practically told that, as Mr. Tichenor and Miss Clinton had identified the defendant in the presence of the jury, the defendant, Dresch, must have been the man who committed the assault, unless one or other of the police officers present before the jury looked like him. It is enough to say that we find no suggestion of 'that kind in the instruction complainéd of.

Lastly, it is said that this Arerdict is against the weight of the evidence. A reading of the testimony satisfies us that this contention is without merit. On the contrary, Ave think the finding was entirely justified on the evidence submitted.

The judgment under review will be affirmed.