author: Eldredge, C. C. J.

text:
    ADAM JUSIAK, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF BOLESLAW JUSIAK, DECEASED, AND ANTHONY JUSIAK, BY HIS FATHER AND NEXT FRIEND, ADAM JUSIAK, PLAINTIFFS, v. COMMERCIAL CASAULTY INSURANCE COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided October 20, 1933.
    Before Eldredge, Circuit Court judge.

      For the plaintiffs, • Orlando & Kisselman.

    For the defendant, T. Harry Rowland.

   Eldredge, C. C. J.

The complaint in the instant suit alleges that prior to February 23d, 1932, defendant had issued its policy of insurance to William W. Clark, indemnifying him against loss and liability by reason of any claim or judgment against him growing out of the operation of an automobile; that thereafter the plaintiff Adam Jusiak, administrator of the estate of Boleslaw Jusiak, deceased, in an action in the Camden County Circuit Court, obtained judgment against the said Clark for $5,000 and costs amounting to $107.10; that on the 19th day of July, 1933, execution was issued by the clerk of Camden county and placed in the hands of the sheriff, and that on the 26th day of July, 1933, the execution was returned unsatisfied.

The defendant, in addition to its answer, sets up ten separate defenses, all of which, in the judgment of the court, must be stricken.

Without attempting to set out the defenses in full, this court is of the opinion that all the questions raised in the answer are fully met by:

(1) Horn v. Comonwealth Casualty Co., 105 N. J. L. 616; 147 Atl. Rep. 483, which among other things holds that “insolvency, apart from its specific definition in the Bankruptcy act (11 U. S. C. A., § 1), means a general inability to answer pecuniary engagements * * * as used in the policy, it has this meaning * * * it is hard to conceive a more cogent pro6of of inability to answer pecuniary engagements than the return of an execution unsatisfied.”

(2) Suydam v. Public Indemnity Co., 10 N. J. Mis. R. 868; 161 Atl. Rep. 499, which states that “there is no question but that under numerous decisions in this and other states the investigation by a liability'- company of a case between an injured person and the insured and taking charge of and conducting the defense for an insured, constitute a waiver of defenses under the policy which may be interposed by the insurer in a suit by the insured and estops the insurer from setting them up in such a suit.” And

(3) Stefus v. London and Lancashire Indemnity Co., 111 N. J. Law 6; 166 Atl. Rep. 339, which case goes a step further than is necessary in the present suit. The court’s attention has been called to a dissenting opinion in that case by Mr. Justice Lloyd, concurred in by Justices Donges and Heher and Judge Kays. That dissent, however, was based upon an element entirely lacking in the instant suit. In the Stefus case the policy covered damages arising from ordinary negligence, while the verdict, under the instruction of the court, was based upon willful and wanton negligence against which the indemnity company did not insure. Hence the dissenting opinion that liability of the assured having been based upon conduct not covered by the policy, the indemnity company should be permitted to defend. The court held, however, that the complaint having charged the injury was the result of ordinary negligence, which was covered by the policy, it would not go back of the pleadings and inquire into the proof and that the striking of the answer should be affirmed.

In the instant case the verdict against Clark was based upon the lack of ordinary care exercised by his agent. The policy covered this character of liability and hence we take it that the dissenting justices in the Stefus case would have concurred had the proof in that case been identical with the proof in the present case.

The answer and separate defenses will be stricken.


source: Caselaw Access Project

author: Jayne, S. C. C.

license: Public Domain

text:
    WILDWOOD TITLE AND TRUST COMPANY, PLAINTIFF, v. ALBERT GEISENHONER AND AGNES GEISENHONER, DEFENDANTS.
    Decided October 18, 1933.

      Tor the motion, Geis & Milstead.

    Contra, Francis J. Smith.

   Jayne, S. C. C.

The present motion is to strike ont the answer filed in behalf of the defendants. An examination of the complaint discloses that this action is instituted to recover from the defendants the principal and interest of a certain promissory note in the sum of $5,450, made by the defendants to the order of the plaintiff under date of September 30th, 1931, payable at the plaintiff bank three months after its date. The answer denies generally all of the allegations of the complaint, and in a separate defense, the defendants aver that a bond and mortgage were executed and delivered to the plaintiff for the identical debt for which the promissory note was likewise given, and that the plaintiff has not taken any proceedings to foreclose the mortgage. The reasons assigned to support the present motion to strike out the answer are that the general denial contained in the answer is sham and that the separate defense is frivolous. An affidavit is submitted in behalf of the plaintiff verifying the allegations of fact in the complaint, and no affidavit is presented in behalf of the defendants by which such facts are controverted. In this situation, the facts adequately alleged in the complaint and verified by the affidavit must be assumed to be true. Lembeck, <&c., Brewing Co. v. Krause, 94 N. J. L. 219. Thus the denial by the defendants, as averred in the answer, of the execution and delivery of the note and of the amount of the indebtedness is sham.

Turning then to the consideration of the separate defense, it becomes obvious that the defendants by this pleading seek to invoke the provisions of section 2 of the act of March 23d, 1881. This section has recently undergone certain changes in particulars unimportant to the question here debated. Pamph. L. 1932, ch. 231; Pamph. L. 1933, ch. 82. The pertinent part of this-statute is as follows:

“That in all cases where a bond and mortgage has or may hereafter be given for the same debt, all proceedings to collect said debt shall be first, to foreclose the mortgage, &c.”

In disposing of this motion, it must be assumed that a bond and mortgage were given by the defendants to the plaintiff for the same debt for which the promissory note was likewise given. The contention in support of the motion then is that the statutory provision, to which reference is made, is inapplicable where a promissory note and a bond and mortgage are all given for the same debt. It is true that this statute is in derogation of the common law and therefore, in recognition of the well settled rule, must be strictly construed. Callan v. Bodine, 81 N. J. L. 240; 79 Atl. Rep. 1057; Development Building and Loan Association v. Nurock, 10 N. J. Mis. R. 23; 157 Atl. Rep. 452; Algrod Realty Co. v. Bayerl, 10 N. J. Mis. R. 651; 160 Atl. Rep. 504; Wolf v. Schlichting, 10 N. J. Mis. R. 1003; 161 Atl. Rep. 840. Yet the statute must not be so construed as to disregard and nullify its evident object and purpose. The object and purpose of this legislation will be found stated in Pennsylvania Company for Insurance v. Marcus, 89 N. J. L. 633, 636; 99 Atl. Rep. 405, and in Knight v. Cape May Sand Co., 83 N. J. L. 597, 601; 83 Atl. Rep. 964. As stated by Mr. Justice Kalisch in the opinion of the Court of Errors and Appeals in Knight v. Cape May Sand Co., supra:

“It was not intended, however, that the strictness with which this statute should be construed should attain to that degree as to destroy its purport and efficacy. The statute was enacted to counteract a prevailing evil which then existed and which was very oppressive to mortgage debtors.

“Its palpable object is to prevent an obligee of a bond from suing thereon, until he shall have first foreclosed the mortgage, which has been given as collateral security for the payment of the bond. Before the passage of the act the mortgagee could foreclose his mortgage and bring his action on the bond at the same time, if he saw fit, and thus harass the mortgage debtor and put him. to needless expense and costs.

“It was at such oppressive proceedings that the statute aimed. It would follow, therefore, that in order to effectuate the policy of the law, the strictness of construction required to be given to the statute should be within the bounds of a liberal sense and not an illiberal one.”

In the instant case, both a bond and mortgage are alleged to have been given for the same debt. Thus, the factual circumstances expressly comprehended by the provisions of the statute are alleged to exist. When the words of a statute are clear and their meaning and application plain, there is no room for judicial construction. McGowan v. Metropolitan Life Insurance Co., 60 N. J. L. 198; 38 Atl. Rep. 671. In Crosby v. Washburn, 66 N. J. L. 494; 49 Atl. Rep. 455, it appeared that the defendant executed and delivered to the plaintiff a mortgage to secure a certain indebtedness evidenced by a bond with warrant to confess judgment, and also a promissory note. Upon default in the payment of the indebtedness, the mortgage was foreclosed, the mortgaged premises sold, and judgment for the deficiency was entered by confession under the authority of the warrant. Among the reasons assigned for vacating the judgment was the claim that the suit should have been on the note and not on the bond. It was in this ease held that the procedure was proper in that it was the procedure prescribed by the act of 1881. In Van Aken v. Tice, 60 N. J. L. 377; 38 Atl. Rep. 20, the facts were that the defendant had executed a real estate mortgage to the plaintiff to secure the payment of two promissory notes amounting to $1,400. A bond accompanied this mortgage. Some weeks later a bond with warrant of attorney to confess judgment was delivered by the defendant to the plaintiff. This latter bond was conditioned for the payment of $1,460, which was the same debt as that secured by the mortgage, with interest added. Subsequently, judgment was entered by virtue of the warrant of attorney. Ho suit had been brought to foreclose the mortgage. The defendant contended that the judgment thus obtained had been prematurely entered and should be set aside. It will be observed that it was not suggested in the opinion rendered in this case that the statutory provision was inapplicable because two promissory notes had also been given for the same debt. The plaintiff there sought to evade the statute by contending that the mortgage had been surrendered and that the protection of the statute had been waived by the defendant.

It is argued that the present case is an action on the note and not on the bond. The argument is without force because the present action is a proceeding to collect the debt for which a bond and mortgage had been given. The form and nature of the action is immaterial if, in reality, it is a proceeding to collect the same debt for which a bond and mortgage have been given.

It is true that where a note secured by a mortgage is given for a debt, the statute, under a strict construction, has been held to be inapplicable. Asbury Park and Ocean Grove Bank v. Giordano, 3 N. J. Mis. R. 555; 129 Atl. Rep. 202; affirmed, 103 N. J. L. 171; 134 Atl. Rep. 915. A note is quite a different obligation from a bond and is not comprehended by the terms of the statute. The conclusion is, therefore, that where a bond and mortgage and promissory note are all given for the same debt, the foreclosure of the mortgage must, by virtue of the statute, be the first proceeding to collect the debt. The giving of a promissory note, in addition to the bond and mortgage, does not in itself constitute a waiver of the protection of the statute.

The motion will prevail in its relation to the defense by which the defendants deny the execution and delivery of the note. Such denial is sham. The motion to strike out the first separate defense will be denied.


author: Per Curiam.

text:
    LOUIS N. BRADFORD, PLAINTIFF-RESPONDENT, v. JACOB COPLEMAN AND SAMUEL COPLEMAN, PARTNERS, TRADING AS COPLEMAN BROTHERS, DEFENDANTS-APPELLANTS. HENRY STAUBACH, PLAINTIFF-RESPONDENT, v. JACOB COPLEMAN AND SAMUEL COPLEMAN, PARTNERS, TRADING AS COPLEMAN BROTHERS, DEFENDANTS-APPELLANTS.
    Submitted May 2, 1933
    Decided October 24, 1933.
    Before Brogan, Chief Justice, and Justices Trenchakd and Hbher.
    Por the appellants, Katzenbach, Gildea <& Rudner (Louis Rudner, of counsel).
    Por the respondents, Nathaniel A. Jacoby (Emil Stremlau, of counsel).
   Per Curiam.

Plaintiffs, in their respective actions, which were tried together in the Middlesex Court of Common Pleas, recovered judgments.

Plaintiff Bradford was the owner and driver of the car which collided with the truck of the defendant, and plaintiff Staubach was riding with Bradford on his invitation.

The complaint of Bradford charged the defendants with negligence in that they failed to have a rear light burning on their truck on the morning of the accident when visibility was bad because of fog.

The complaint of plaintiff Stanbach charged defendants with negligence in that they permitted their automobile truck to be parked on a foggy morning without a light being displayed in the rear and also in that the truck was parked on the left southbound lane reserved for fast moving automobiles.

The accident occurred about five-fifteen on the morning of October 5th, 1931, on a highway leading from New York to Philadelphia at a point near Woodbridge, New Jersey.

The first point made by the defendants is that the court erred in charging the jury that it was incumbent upon the operator of the defendants5 truck to use extraordinary care in its operation.

It appears that, prior to having charged the jury that the duty of extraordinary care devolved upon the defendants, the court instructed the jury that “these cases are subject to the general provision of law applying to plaintiffs and defendants alike, namely, that a person must operate his car in such a manner as a reasonable person would operate a car, taking into consideration the time, the place and the circumstances.55 No objection was made to that instruction, but it is contended that the j udge erred in thereafter charging as follows:

“Here was a very foggy morning; both sides testify to that fact. And it was therefore incumbent upon the operators of both cars to use extraordinary care in the operation of their cars, and where they were on the highway after they were stopped, so that they would not endanger the lives and property of other persons.55

An exception to that instruction was duly taken.

We think that this latter instruction was erroneous and prejudicial. The defendants were bound to exercise reasonable care towards other travelers — in other words, they must use that degree of care which an ordinarily prudent person would use under the same circumstances. Spawn v. Goldberg, 94 N. J. L. 335; 110 Atl. Rep. 565. Keasonable care means, not extraordinary care, but such as an ordinarily prudent person would exercise under the conditions existing at the time he is called upon to act. Pesin v. Jugovich, 85 N. J. L. 256; 88 Atl. Rep. 1101. The instruction that the defendants owed a duty of extraordinary care tended to mislead, and must have been injurious in the result. VanBlarcom v. Central Railroad Co., 73 N. J. L. 540; 64 Atl. Rep. 111.

The judgment will be reversed to the end that a new trial may be had. Costs to abide the result.


author: Lawrence, S. C. C.

text:
    WILLIAM D. GORDON, SECRETARY OF BANKING OF THE COMMONWEALTH OF PENNSYLVANIA, IN POSSESSION OF THE BUSINESS AND PROPERTY OF BANK OF PHILADELPHIA AND TRUST COMPANY, PLAINTIFF, v. EDWIN DAVIS AND ELIZA P. DAVIS, DEFENDANTS.
    Decided November 8, 1933.
    Tor the motion, Meyer L. Bakin.

    Opposed, Meehan Brothers.

   Lawrence, S. C. C.

This is a suit on a foreign judgment. It was obtained by plaintiff against the defendants in the Court of Common Pleas, No. 5, for the county of Philadelphia, in the State of Pennsylvania, at the September term of that court, 1932. An exemplified copy of the record discloses that it was there entered on a bond and warrant of attorney by confession of judgment. The answer here filed sets up that at the time of the entry of the judgment, defendants were resident in the State of New Jersey and were not served with process in the proceeding in Pennsylvania. An examination of the record is sufficient to indicate that the answer should be stricken as sham. A bond and warrant of attorney was executed by defendants in connection with a mortgage covering premises (apparently a second encumbrance) owned by defendants in Philadelphia. The debt secured was not paid and the mortgage was foreclosed. On a sale of the property, a deficiency in the mortgage debt resulted, whereupon judgment was entered therefor on the bond in pursuance of the warrant of attorney, under the Pennsylvania statute. Service of process on defendants was consequently not necessary and the fact that they were at the time residents in New Jersey is immaterial. Smith v. Swart, 103 N. J. L. 150; 134 Atl. Rep. 755. Any real defense defendants may have had was and is subject to consideration in the court where the judgment was originally entered on an application to open it. A rule may be entered striking the answer here filed as sham. There being no other questions involved, judgment may be entered for the debt, interest and costs.


text:
    FREIDA HOLDA AND JOSEPH HOLDA, PLAINTIFFS-APPELLANTS, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, DEFENDANT-RESPONDENT.
    Submitted May 2, 1933
    Decided October 24, 1933.
    Before Beogan, Chief Justice, and Justices Tbenchakd and Hehek.
    For the appellants, Joseph T. Karcher.

      For the respondent, William H. Speer and Henry H. Fry-ling (William F. Vosseller, of counsel).
   Per Curiam.

The defendant company operated a motor bus from New Brunswick via Milltown, South River, Sayerville to South Amboy.

The plaintiff Mrs. Uolda boarded that bus at Sayreville at eleven o’clock in the mqrning with a baby in her arms. The evidence tends to show that she paid her fare to the operator of the bus at the door, took one step toward the interior of the bus and tripped over a suitcase about three feet long, three-quarters of which was jutting out into the entrance aisle of the bus. She fell to the floor, and claims to have sustained injuries for which she brought this suit, her husband joining with her for his consequential damages.

The proof tended to show that the suitcase over which she fell had been brought in by another passenger, within the view of the driver, at New Brunswick, and was placed by the passenger between her feet, facing toward the door, and that, as the bus was running from South River to Sayreville, there was “almost three-quarters of it in the aisle” as she sat “in the long seat towards the door.”

The learned trial judge, on motion of the defendant, directed a verdict for the defendant, upon the ground that “the undisputed testimony in this case is that this bus driver used periodical inspection of this aisle and did not see this suitcase in a dangerous position. The defendant, therefore, has met the obligation which the law places upon it.”

The plaintiffs urge that this direction of a verdict was erroneous because, they contend, the testimony was not undisputed and that a jury question was presented in respect to defendant’s negligence.

The defendant company being a common carrier of passengers was bound to use a high degree of care to protect the plaintiff from danger that foresight could anticipate.

We think that the evidence presented by the plaintiffs (though denied in some respects by the defendant’s driver) left it open to the jury, if they saw fit, to find that the defendant’s driver failed in the performance of his duty.

It seems clear that it was open to the jury to find that a considerable part of the suitcase was obstructing the aisle. And we believe they might also have found, if they saw fit, that the defendant’s driver either knew it was there or in the exercise of reasonable care should have known it.

The testimony tends to show that the bus in question was an ordinary bus, carrying passengers for hire, and was required to stop at every street corner if passengers desired to board or alight; that its route was through a group of municipalities where numerous stops were made between the point where the suitcase was put aboard and the place of the accident. Plaintiff’s witnesses, as we read the testimony, place the suitcase, or some considerable part of it, sticking out in the aisle from South Eiver to Sayreville, a distance of variously estimated as between one and two miles, and for a period of time estimated at from ten to fifteen minutes.

It is true that defendant’s driver testified that the woman placed the suitcase parallel with the seat; that “I picked up passengers going down the road. I just sits back there as usual, and we have to turn around, sort of sideways, to punch the register, so in that way I took a glance at it every once in a while, and it was always in the same place;” that the last time he looked at the suitcase was at South Eiver, and that he did not look to see where the suitcase was when plaintiff boarded the bus. He further said that he was worried about the suitcase and kept his eye on it.

Since the evidence tended to show that the suitcase was near the door and practically beside the driver, and since the evidence further tended to show that it substantially obstructed the entrance aisle, it seems evident that the jury may well have found that he should have known of the obstruction.

Hpon the whole we think the question of defendant’s negligence was for the jury and the direction of a verdict improper.

The judgment will be reversed, and venire de novo awarded-Costs .to abide the event.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    LOUIS E. SOUVAY, PLAINTIFF, v. LOUIS FRICKE, DEFENDANT.
    Decided November 10, 1933.
    For the plaintiff, Meaney & Lifland.

    For the defendant, Isaacs & Gunther.

   Brown, C. C. J.

This matter is before the court on the plaintiff’s motion to suggest the death of the above named defendant on the record of the case and have an order entered substituting Anna Frieke, executrix of the last will and testament of Louis Frieke, as the party defendant. The suit is one for alienation of affections with a count for criminal conversation. While the suit was pending and awaiting trial the defendant died. According to the agreed statement of facts made by counsel of the parties the plaintiff brought his suit against the defendant on the 23d day of December, 1931. The defendant died on the 16th day of June, 1933, and his last will and testament was-probated on the 28th day of June, 1933, Anna Frieke, his mother, qualifying as executrix. Defendant insists that the action is one for alienation of affections and criminal conversation and abates upon the death of the decedent.

The first count of the complaint contains the allegations usually made in cases involving alienation of affections and concludes by demanding damages alleging that the plaintiff Louis E. Souvay was wrongfully deprived of the affections, comfort, society, aid and consortium of Ms wife, Jeanette A. Souyay, to which lie is entitled and which lie otherwise would have had and enjoyed.” The second count is based upon a charge of criminal conversation and alleges that because of said wrong-doing the “affections of the said Jeanette Souvay was wholly alienated and destroyed and the plaintiff has wholly lost the affections, society, aid and consortium of his wife to which he is entitled and which he otherwise would have had and enjoyed.”

The “Abatement act” (1 Comp. Stat. 1910, p. 4), provides that:

“A suggestion of death of a party on the record may be filed during the pendency of a suit provided such action might originally be prosecuted or maintained against the executors or administrators of such defendant.”

The “Executors and Administrators act” (2 Comp. Stat. 1910, p. 2260, § 4), provides:

“That executors and administrators may have an action for any trespass done to the person or property, real or personal, of their testator or intestate against the trespasser or trespassers, and recover their damages in like manner as their testator or intestate would have had if he or she was living.”

The significant part of this statute as far as this application is concerned is to interpret the meaning of the word “trespass.” In the case of Ten Eyck v. Runk, 31 N. J. L. 428, it was determined that the above entitled statute was a remedial one it being the legislative intention to relieve against the harsh injustice of the rule actio personalis moritur cum persona. It was held that the word “tresspass” as used in the section under consideration, must be received as equivalent in meaning to the word “tort” so that the effect of the provision is to give a right of suit against the personal representatives of a deceased wrong-doer for any injurious act of a suable nature, without reference to the form in which the remedy must be sought. In the later case of Hayden v. Vreeland, 37 Id. 372, the word “trespass” was also construed and it was held that word did not include an action for breach of promise. Mr. Justice Van Syckle wrote the opinion in that case and quoted with approval (at p. 374), the remarks of Lord Mansfield: “If it is a sort of injury by which the offender acquires no gain to himself at the expense of the sufferer, the person injured has only a reparation for the delictum in damages to be assessed by a jury, but where, besides the crime, property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor. As, for instances, the executor shall not be chargeable for the injury done by his testator in cutting down another man’s trees, but for the benefit arising to his testator for the value, or sale of the trees, he shall.

“So far as the tort itself goes, the executor shall not be liable; but so far as the act of the offender is beneficial, the executor is answerable.”

According to this case the distinction seems to lie between causes of action which effect only the person and those which effect the estate where the representatives of the defendant acquire some property or value by reason of the act complained of. In the case of Tichenor v. Hayes, 41 N. J. L. 193, involving an action in tort for negligence and deceit against a lawyer, Chief Justice Beasley, writing the opinion (at p. 199), has this to say:

“By ascribing to the term ‘trespass’ the signification of tort, or wrong, and which is one of its meanings, the remedy is made approximately commensurate with the evil to be eradicated, and in this way actions for deceits and neglects will survive, as well as those in which the loss follows immediately from the tortious act.”

In the case of Noice, Administrator, v. Brown, 39 N. J. L. 569, which involves an action for seduction of a daughter in the lifetime of her father, it was held:

“The description ‘torts to the person and torts to property, real and personal,’ is sufficiently comprehensive to embrace every possible injury that does not arise out of contract, unless injuries to the persons are narrowed by construction to signify injuries to the body.

“The offenses of seduction and libel, where no special damages are laid, are, obviously, strictly personal, being remedies, mainly for wounded feelings. Feeling being as much a part of the person as the physical frame, no reason appears why an injury to the former is not as much a tort to the person as an assault would be.

“The wrong is a two-fold character, wounding the person in his feelings, and affecting his property rights, resting, as it does, on the technical ground that, by the injury, he lost a service of some pecuniary value. The loss of the service would affect the estate in the hands of the personal representative and should give equal support to an action by him. The damages being partly punitive, the action should survive, on the ground of public policy, that the punishment may fall on the wrong-doer. The case is within the language and also within the spirit of the act.”

In the case of Alpaugh v. Conkling, 88 N. J. L. 64; 95 Atl. Rep. 618, it was held that under section 5 of the Executors and Administrators act, “a right of action for libel or slander does not survive as against the personal representatives of the tort feasor in the absence of any special damage to property rights.”

A recent case in the Hudson County Circuit Court pertaining to this question is the case of Meyer v. Peter, 9 N. J. Mis. R. 1309; 157 Atl. Rep. 250. This was a case involving malicious prosecution and the conclusion of the court was that in the absence of special damage to property rights the action would abate. From the cases cited it is reasonable to conclude that the word, “trespass,” while including the word “tort,” does so in a limited sense in so far as actions do or do not abate under the statute referred to. In cases where the action survives the word “tort” should be construed as meaning only those cases where there is a property loss or damage to property rights.

The next question that presents itself is whether the instant case is one of this character, that is to say, was there damage to property rights and if so has it been pleaded ? The claim for loss of affections, comfort and society does not survive. The complaint, however, further charges a loss of aid and consortium of the wife. Loss of services as well as society and affection is included in the legal meaning of the loss of consortium. 12 C. J. 532. In the vase of Noice, Administrator, v. Brown, supra, the loss of services was held to be within the letter and spirit of the act. The loss of services of a wife to her husband brought about through the alienation of a third party affects the property rights of the husband and is within the letter and spirit of the act.

There is pleaded in the complaint in this case damages arising out of an invasion of the property rights. The application to suggest the death of the defendant upon the record and to substitute as party defendant his executrix, Anna Frieke, will be granted.


author: Lyon, J.

text:
    Middlesex County Court of Common Pleas.
    LEON S. LEPRE, PLAINTIFF, v. REAL ESTATE-LAND TITLE TRUST COMPANY, EXECUTOR OF THE ESTATE OF MABEL HANCOCK, DECEASED, DEFENDANT.
    Decided November 8, 1933.
    For the motion, Cox <& Walberg.

    Contra, Theodore Strong & Sons.

   Lyon, J.

This is on a motion of defendant by special appearance to set aside the service of the summons and complaint in the above entitled cause.

The action arises out of an automobile accident occurring in New Jersey on August 18th, 1933, in which the plaintiff was injured, and in which one Mabel Hancock, the owner and operator of the car involved in the accident, was instantly killed. She was a non-resident of this state, being a resident of Pennsylvania, and had her driver’s license and car registered in compliance with the laws of that state. She was not licensed under the provisions of the laws of New Jersey.

Summons and complaint were issued and delivered to the commissioner of motor vehicles, pursuant to the laws of 1930, chapter 69, page 295. Cum,. Supp. Comp. Stat.3 p. 1048, 135-96 a (1). The defendant in the action is the Real Estate-Land Title Trust Company, the executor of the estate of the said Mabel Hancock. The motor commissioner’s return shows his acknowledgment as of the 16th day of September, 1933, and the registry return receipt required by the act is signed “The Real Estate-Land Title Trust Company, E. K. Merrill, Ass’t. Sec’y.” Ho other service under that section of the act was made and no other registry receipt was received by the commissioner. The propriety of this service is attacked by the defendant.

It is clear that this method of service is wholly statutory and that the terms of the statute must be carried out to make a legal service. Manifestly these terms cannot be carried out in the case of a deceased owner or operator, because such person cannot receive the registered mail required, nor sign the return receipt. In the case of Boyd v. Lemmerman, 11 N. J. Mis. R. 701; 168 Atl. Rep. 47, the Supreme Court held as follows: “In actions involving automobile accident, service on non-resident defendant through commissioner of motor vehicles was invalid, where defendant died before suit was brought.”

Furthermore, the provision of the act which provides for service on the commissioner of motor vehicles constitutes him the “agent for the acceptance of process in any civil suit.” The rule that death revokes agency is too well settled to require citation of authorities.

The service of the summons and complaint attempted to be made under, the provisions of section 1, supra, would have to be set aside.

After the accident one William Rossmeyer, the proprietor of a garage, took the car of Mabel Hancock into his garage in Middlesex county, in this state, where it is still held by him as security for a towing and storage bill. Rossmeyer has made an affidavit in which he sets forth his custody of the said car, and that he is keeping it for security; that he is informed and believes that the car is registered in the name of Mabel Hancock, of Lexington Apartments, Philadelphia, Pennsylvania, as owner, and that the Real Estate-Land Title Trust Company is the executor of her estate; that his information is based on correspondence between himself and Russell Wolfe, an attorney of Philadelphia, who has represented himself to be the attorney for the estate of said Mabel Hancock.

After the rule to show cause why the service of the summons and complaint should not be set aside for the reasons above referred to, plaintiff attempted to make another and different service under section 3 of the act. Cum. Supp. Comp. Stat., p. 1049, 135-96 a (3). In such attempt a service was made as shown by the officer’s return on the summons and complaint as follows:

“I served the within Summons and Complaint October 11th, 1933, on William Rossmeyer, he being the person in whose custody the within named ear, Chevrolet sedan with 1933 Pennsylvania license plates D-2728, by leaving a copy thereof with him at Bob’s Auto Service on the Lincoln Highway, Raritan Township, New Jersey, and did post a copy of the within Summons and Complaint on the said car, which may be found at Bob’s Auto Service, Lincoln Highway, Raritan Township, New Jersey, in accordance with Sec. 3 of Chap. 69 of the Laws of 1930.

Alen H. Ely.

By Geokgb L. Howley,

Special Deputy Sheriff.”

It has been agreed between counsel that the validity of such service shall also be determined on this motion.

The propriety of this service has been challenged on several grounds: that the third section of the act in question does not provide for any method of service upon the legal representative of the deceased; because an attempt has been made to acquire jurisdiction in personam against a nonresident by a substituted service based upon a situs of the property of a non-resident; that said section 3, as far as it fails to provide a procedure by which it would be reasonably probable that notice of the action would be communicated to the non-resident who is sued, is unconstitutional under the case of Wutcher v. Pizzutti, 276 U. S. 13.

Since jurisdiction over the person of the defendant is purely statutory, service of process in order to be valid must be in accordance with some provision of the law. No such provision under which an executor may be served in cases like the present has been cited. In fact it is clear that there is none.

Furthermore it is claimed by the defendant that under the decision in the Wutcher case there has been no legal service at all; that is to say, the delivery of the summons and complaint to the garage man who happens to have the car in his possession is not a service on the defendant executor because there is no “provision making it reasonably probable that notice of the service .on the custodian will be communicated to the non-resident defendant who is sued.”

This is an action in personam and under the due process of law clause of the United States constitution no judgment against a person in another state can be rendered unless notice thereof has been given to the defendant.

It is contended and seems quite clear that the third section of the act under which the second attempt at service was made is subject to the same infirmity as was the section which was the subject of the court’s consideration in the Wutcher case.

It is not a question as to the probability of a custodian on his own initiative communicating to a defendant the fact that he had been served. It is rather a question of the law making a provision that such should be done.

Chief Justice Taft says in the above cited case:

“We think that a law with the effect of this one should malee a reasonable provision for such probable communication. We quite agree, and, indeed, have so held in the Pawloski case, that the act of a non-resident in using the highways of another state may be properly declared to be an agreer ment to accept service of summons in a suit growing out of the use of the highway by the owner of the automobile, but the enforced acceptance of the service of process on a state officer by the defendant would not be fair or due process unless such officer or the plaintiff is required to mail the notice to the defendant, or to advise him, by some written communication, so as to make it reasonably probable that he will receive actual notice.”

Since there is no provision in the third section requiring notice of some kind to be given to the defendant I think the attempted service under it is not effective.

The service of the summons and complaint will be set aside.


author: Jayne, C. C. J.

text:
    Atlantic County Circuit Court.
    MARY HARRISON, PLAINTIFF, v. GREGORY DOBKIN, DEFENDANT.
    Decided November 7, 1933.
    For the plaintiff, David 8. Harrison.

    For the defendant, Harold L. Wertheimer and Babcock & Champion.

   Jayne, C. C. J.

Application is made in behalf of the defendant to vacate and set aside a judgment entered in this court on December 7th, 1932, in favor of the plaintiff upon a bond and warrant of attorney executed by the defendant under date of May 18th, 1931. The application to vacate this judgment rests upon the contention that the affidavit of the plaintiff produced before the commissioner was in several particulars insufficient to justify the entry of the judgment.

The statute relative to the essential substance of the affidavit required for the entry of a judgment by confession on a warrant of attorney is as follows:

“That no judgment shall be entered in any court of record of this state, on a warrant of attorney to confess such judgment, or by the defendant appearing in person in open court and confessing the same, unless the plaintiff or his attorney shall produce, at the time of confessing such judgment, to the court, judge, justice, or commissioner before whom the judgment shall be confessed, an affidavit of the plaintiff, his attorney or agent, of the true consideration of the bill, bond, deed, note, or other instrument of writing or demand for which the said judgment shall be confessed; which affidavit shall further set forth that the debt or demand for which the judgment is confessed is justly and honestly due and owing, to the person or persons to whom the judgment is confessed, and that the said judgment is not confessed to answer any fraudulent intent or purpose or to protect the property of the defendant from his other creditors.” 1 Comp. Stat., p. 221, § 11-

The statutory ancestor of our present legislation relating to the entry of judgments on bonds and warrants of attorney appears to have been the act of March 9th, 1798. After the enactment of this early statute, it seems to have been optional in the practice then prevailing to either enter the confessed judgment as at the common law or according to this statute. The first legislative enactment requiring judgments on bonds and warrants to be entered only in the manner prescribed by statute appears to be the act of February 28th, 1804. In the line of subsequent legislation may be found the acts of 1817, 1818, 1820 and 1829.

The language of the existing legislation is significant. It is that no judgment shall be entered in any court of record in this state on a warrant of attorney to confess such judgment unless the plaintiff or his attorney shall produce before the commissioner at the time of confessing such judgment an affidavit containing certain essential and requisite statements of fact. The statute was obviously intended to prohibit the entry of such judgments in the absence of the production of the requisite affidavit. Clapp v. Ely, 27 N. J. L. 555; Haddonofield National Bank v. Hippie, 110 Id. 271.

True, if the statements contained in the affidavit substantially comprehend the facts required by the statute to be embodied in such an affidavit, a judgment entered thereon will not be set aside. In such circumstances, the affidavit is regarded to be in substantial compliance with the intent and purpose of the statutory requirement. Warwick v. Matlack, 7 N. J. L. 165; Scudder v. Coryell, 10 Id. 341; Latham v. Lawrence, 11 Id. 322; Hoyt v. Hoyt, 16 Id. 143; Strong v. Gaskill, 95 Id. 14; Brandt v. Tartar, 7 N. J. Mis. R. 229; 145 Atl. Rep. 225; Knoeltner v. Integrity Corporation of New Jersey, 9 N. J. Mis. R. 745; 155 Atl. Rep. 461; Haddonfield National Bank v. Hippie, supra; 34 Corp. Jur. 122.

The present application, therefore, requires the initial inquiry whether the affidavit in the ease sub judice is in substantial compliance with the requirements of the statute. It is contended in behalf of the defendant that the affidavit discloses that the bond was secured by a real estate mortgage and that the affidavit should therefore have stated that the mortgage had first been foreclosed and the premises sold and that the required notice of intention to enter judgment for the deficiency had been filed. The fact is that in the instant case the mortgage was first foreclosed, the premises sold and the required notice filed. The statement of such facts need not be contained in the affidavit to be produced for the entry of the judgment on a bond and warrant of attorney. Levin v. Wenof, 7 N. J. Mis. R. 603.

The affidavit, however, fails to state that the debt or demand for which the judgment is confessed is “justly and honestly due and owing” to the plaintiff and the affidavit omits the statement “that the said judgment is not confessed to answer any fraudulent intent or purpose or to protect the property of the defendant from his other creditors.” The only pertinent language of the affidavit is “there is due to me from the defendant, Gregory Dobkin, on account of said bond, the sum of $3,000 with interest, &c., thereby making a total amount due to me from said defendant for principal and interest as of December 6th, 1932, of $3,189.” It will be observed that it is not stated in this affidavit that the indebtedness is either “justly” or “honestly” due. Haddonfield National Banlc v. Hippie, supra. Moreover, in addition to the omission of the word “justly” or the word ‘Tionestly,” the plaintiff has likewise discarded in her affidavit the statement that the judgment is not confessed to answer any fraudulent intent or purpose or to protect the property of the defendant from his other creditors. Thus the affidavit of the plaintiff in the instant case totally omits the factual statements absolutely essential to the fulfillment of the obvious intent and purpose of the statutory provision. The evil which this statutory provision sought to eradicate arose in times of serious financial distress not unlike those presently existing, and thus on an application such as this, the evident object and purpose of the statute cannot be lightly regarded.

ISTo depositions have been taken from which it may be definitely concluded that the debt was justly and honestly due and owing and that the judgment was not confessed to answer a fraudulent intent or purpose or to protect the property of the defendant from his other creditors, but assuming it to be an honest debt and assuming that the judgment was not confessed for any such deceitful purpose, it must be recognized that the application to vacate this judgment is not made by a judgment creditor of the defendant but by the defendant himself who asserts that the judgment was improvidently and irregularly entered against him. Reading v. Reading, 24 N. J. L. 358; Evans v. Adams, 15 Id. 373, 375.

In resisting the present application, it is argued, inter alia, that this court in its discretion ought not to set aside this judgment merely because on the record the affidavit is not in compliance with the statute. It is well settled that by the common law if a judgment is regularly entered, an application to open such judgment is addressed wholly to the discretion of the court in which it was rendered. Smith v. Livesey, 67 N. J. L. 269; Assets Development Co. v. Wall, 97 Id. 468. Moreover, a judgment regularly entered, by confession on a warrant of attorney, may, upon good cause being shown, be set aside in the discretion of the court. Silvers and Britlin ads. Reynolds, 18 Id. 238.

The present application, however, presents a situation where a judgment has been irregularly entered in disregard of the requirements of the statute in that the affidavit is in its essential substance insufficient to justify the entry of the judgment. If the affidavit is not in substantial compliance with the statute, the duty of the court on an application by the defendant to set aside the judgment so irregularly entered has been regarded as imperative rather than discretionary.

“It was an appeal to the legal judgment of the court, and if the party making that appeal had the legal right to do so; and if upon inspecting the record, there was error; then the court had no discretion to grant or refuse the motion, but were bound ex debito justicia, to set aside the judgment.” Evans v. Adams, 15 N. J. L. 373, 378.

“This judgment may have been confessed for an honest debt and no actual injustice may have been done by it to the defendant or to his other creditors, yet, as the legislature, in seeking To secure fairness, honesty and good faith in such transactions’ in their wisdom have directed upon what condition alone an honest creditor can exercise his honest right of securing a just debt by a judgment, this court, when called upon to act, must ‘ex debito justicia’ see that the requirements of the statute are not evaded or misunderstood.” Reading v. Reading, 24 N. J. L. 358, 362.

There is a material distinction between an application to vacate a judgment because it has been illegally entered and an application to open a judgment because it is alleged to be unjust and inequitable. On the latter application, the moving party must undoubtedly act diligently, disclose a meritorious reason for the reopening of the judgment, and the court will also consider to what extent the rights of the plaintiff will be endangered by reopening the judgment. An illustration of an application of the former class would be one to vacate a judgment entered without due process of law. In the instant case, the judgment was entered in violation of the statute which expressly prohibits the entry of such a judgment unless the required affidavit is made and produced. The judgment must accordingly be vacated and set aside.


author: Carney, J.

text:
    Second Judicial District Court of Hudson County.
    C. I. T. CORPORATION v. HARRY HUNGERFORD AND THERESA O’NEILL.
    Decided October 9, 1933.
    For the plaintiff, Pellegrin ¿6 Pellegrin.

    For the defendant Harry Hungerford, Collins & Corbin (John P. Leonard, of counsel).
    For the defendant Theresa O’Neill, Hoberman & Hoberman.

   Carney, J.

This action was instituted by the plaintiff (conditional vendor of an automobile) to recover against the vendee, Theresa O’Neill, and a third party, Harry Hunger-ford, for damages occasioned to said automobile, arising out of an accident that occurred on November 26th, 1931; at which time the automobile was being operated by the son of the defendant Theresa O’Neill, to whom she had loaned the car and who was not, at the time, engaged on any enterprise of the defendant Theresa O’Neill.

As a result of the accident, Theresa O’Neill instituted an action in the Bayonne District Court against the defendant Hungerford to recover for the said damages, which action resulted in a verdict in favor of the defendant of “no cause of action.” The defendant Hungerford now moves to dismiss the state of demand herein, on the ground that the action in the Bayonne District Court is either res adjudicata, or a bar to this action.

The law is quite clear that a recovery by the bailee is a full satisfaction and a bar to any action of the bailor; and inversely, I am of the opinion that a denial of recovery of the bailee, is a denial of recovery to the bailor; except that no denial or bar may be set up against the bailor for the contributory negligence of the bailee, as in the case of Commercial Credit Corp. v. Satterthwaite, 107 N. J. L. 17; 150 Atl. Rep. 235; 108 N. J. L. 188; 154 Atl. Rep. 769. As suggested in the cases, the liability of the trespasser is the same, his only concern being that he shall not be put to the hazard of two recoveries. In the case of Commercial Credit Corp. v. Satterthwaite, supra, upon which the plaintiff relies, it is pointed out that:

“It needs no argument that the owner of a general property in a chattel is entitled to recover for damages to that chattel, at least provided there has been no recovery on behalf of the owner of the special property for the same cause of action.”

It is suggested in the plaintiff’s brief, that the verdict of “no cause of action” in the Bayonne District Court may have been grounded on the contributory negligence of the plaintiff, Theresa O’Neill, and that thus would violence be done to the rule laid down in the case of Commercial Credit Corp. v. Satterthwaite, supra; but even in that action in the Bayonne District Court, contributory negligence could not have been set up against the defendant Theresa O’Neill, because the evidence is clear that her son was not, at the time of the accident, engaged on any enterprise for her.

In view of the above, the motion made on behalf of the defendant Harry Hungerford to dismiss this cause of action as against him, will be granted.


text:
    AARON SLOIN, APPELLEE, v. MILDRED LAVINE, BY NEXT FRIEND, APPELLANT.
    Argued October 3, 1933
    Decided November 15, 1933.
    Before Justices Parker, Lloyd and Perskie.
    Por the appellant, Maxwell A. Kraemer.

    Por the appellee, Nathan N. Schildkraut.

   Per Curiam.

The defendant Miss Levine and plaintiff were engaged to marry. He gave her an engagement ring and certain other presents of minor value. They quarreled, the engagement was broken off, and he brought replevin for what he had given her. The court awarded her the other presents and him the ring, and she appeals. The grounds of appeal are: (1) refusal to nonsuit; (2) awarding ring to plaintiff instead of to defendant.

The motion to nonsuit was on two grounds:

(a) That the evidence failed to show the plaintiff’s right to possession of the property.

(b) That the evidence showed the gifts were absolute.

It is now urged for appellant that no demand prior to suit was proved. The appellee’s brief states that this demand was stipulated to have been made, but the state of the case fails to show any such stipulation. However, the point was not made on the motion to nonsuit or elsewhere in the case so far as appears, and appellant is barred from taking it now. Woodward v. Harden, 102 N. J. L. 31; 131 Atl. Rep. 62; Franklin v. Millville, 98 N. J. L. 262; 119 Atl. Rep. 29; Allen v. Paterson, 99 N. J. L. 489; 128 Atl. Rep. 884; Glinsky v. Sennert, 111 N. J. L. 285, 287; 168 Atl. Rep. 264.

So we have on the merits the simple case of an engagement ring and engagement broken and ring not returned. The decisions are not numerous, but we follow those holding what we deem the correct rule, viz., that such a gift is impliedly conditional, and must be returned, particularly when the engagement is broken by the donee, as the court was entitled to find in this case. Williamson v. Johnson (Vt.) 20 Atl. Rep. 279; Jacobs v. Davis (1917), 2 K. B. 532; Cohen v. Sellar (1926), 1 Id. 536; Beck v. Cohen, 262 N. Y. Supp. 716.

The judgment will be affirmed.


author: Parker, J.

text:
    BEN RAUSCHBACH, PLAINTIFF, v. DUVAL FOOD PRODUCTS COMPANY, INCORPORATED, A CORPORATION, AND EMMA FRITSCH, DEFENDANTS.
    Decided October 3, 1933.
    Argued before Justice Parker, at chambers.
    Por the plaintiff, Maurice Jordan Price.

    Por the defendants, Chandless, Weller <& Selser.

   Parker, J.

I conclude that the writ of attachment must be quashed. The principal argument for the defendants rested on the general proposition that the language of the affidavit was insufficient to prove a prima facie case of attempt to remove property out of the jurisdiction for the purpose of defrauding creditors. This is undoubtedly the gravamen of the affidavit and I take it that the attempt of the plaintiff was to bring the case within clause three of the first section of the Attachment act of 1901, the language of which is “(3) where the court or a judge thereof, or a Supreme Court commissioner shall make an order for the issue of an attachment upon proof, by affidavit of fraud which would warrant an order for a capias ad respondendum.” This clause was not in the former Attachment act and was doubtless introduced for the purpose of bringing within its purview the class of eases covered by chapter 43 of the laws of 1895. Pamph. L., p. 103, 104. In order to obtain an attachment under that act or under the third clause above referred to, the affidavit must be such as would be sufficient to justify an order for bail. I have grave doubt whether the plaintiff has made out a case but it seems unnecessary to go further on that point because of a defect in the affidavit which, to my mind, is controlling.

In Potter v. Cook, a decision by me as Circuit Court judge in 1907, reported in 30 N. J. L. J. 206, definitely held that an affidavit for bail was insufficient if entitled in a cause, the theory being that no cause is pending when the affidavit is made, and for that reason perjury cannot be assigned thereon. This ease has been several times referred to in decisions of the Supreme Court and Court of Errors and Appeals and has never been overruled; and in the recent cases of Vitalano v. Roffo, 3 N. J. Mis. R. 1130; 130 Atl. Rep. 815, and Stuewald v. Furman, 4 N. J. Mis. R. 470; 133 Atl. Rep. 187, I definitely held there can be no distinction in this regard between an affidavit made for the purpose of obtaining an order for bail and an affidavit made for the purpose of obtaining an order for attachment, because the Attachment act specifically requires the same kind of an affidavit. The whole action is founded on it in either case.

Now the affidavit before me is entitled in the cause naming certain parties as defendants, and several times in the course of the affidavit it mentions the “defendants” and also the “plaintiff,” so that as in the case of Potter v. Cook, supra, it is impossible to separate the heading of the affidavit from the body of it.

This reasoning, of course, may seem technical but, as noted in the two cases cited, it is founded upon sound and substantial consideration.

Counsel may present a rule quashing the attachment.


author: Parker J.

text:
    CHARLES BECKER, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE CITY OF NEWARK ET AL., DEFENDANTS.
    Decided October 16, 1933.
    For the prosecutor, Charles Becker, pro se.

    For the defendants, Jules E. Tepper.

    Argued before Justice Parker, in July, 1933, and later submitted on briefs.
   Parker J.

This is an application by the prosecutor, claiming to be a citizen and taxpayer of Newark, for a writ of certiorari to review six resolutions passed by the board of commissioners of the city subsequent to the adoption of the annual budget, and which resolutions, according to the claim of prosecutor, are illegal as bearing upon the budget in an unauthorized manner.

The first resolution relate to the salaries of the respective commissioners and undertakes to fix them as follows: mayor, $8,250; director of revenue and finance, $7,500; director of public works, $7,500; director of public safety, $7,500; director of parks and public property, $7,500.

The next resolution purports to appoint a secretary to the director of the department of public works at a salary of $4,500, and a deputy director of public works at a salary of $5,000.

The next resolution purports to appoint a secretary to the department of revenue and finance at a salary of $4,500, and a deputy director of that department at a salary of $5,000.

The next resolution purports to appoint a deputy director of public affairs at a salary of $5,000, and a secretary to the director of that department at a salary of $4,500.

The next resolution purports to appoint a deputy director of parks and public property at a salary of $5,000, and a secretary to the director of that department at a salary of $4,500.

The last resolution is one purporting to authorize the creation in the department of public works of a division of research, stating the general objects of such division and providing for the appointment of an administrative examiner at a salary of $4,500, which amount shall be the whole amount devoted to that division.

The point of the application I understand to be this, viz., that although the budget appropriations to the respective departments are not exceeded by these changes, nevertheless, according to the claim of prosecutor, the amounts allowed to the departments and their respective subdivisions in the budget were based upon certain work sheets which went into considerable detail respecting the number of clerks and employes in each department and the salaries or other compensation allotted to each, and that the allotments to the departments and to their respective subdivisions were based essentially on these work sheets, so that any departure from the schedules in the work sheets would be illegal and should be set aside. In particular, it was charged at the argument that the several directors were receiving an increase of salary by the scaling down of salaries of employes or the elimination of some of these employes or subordinates, and I assume that the salaries of the several secretaries and deputy directors mentioned in the resolution above set forth are to be handled in a similar manner. I think it was conceded by the prosecutor that no total appropriated for a department would be exceeded under the resolutions, but the gravamen of the attack was directed to the shifting of money from some items on the work sheets to other items, some appearing thereon and others not.

Something is- said in the briefs with regard to the items of the budget as advertised in the public prints. I have not been furnished with a copy of that advertisement, and the best that I can do is to take the photostat copies which purport to be sheets of the budget as they are attached to the brief of the prosecutor.

The last sheet, consisting of a recapitulation, gives the total amounts appropriated for the following objects: Public works, revenue and finance, public safety, public affairs, parks and public property (the five statutory departments), nondepartmental, debt service, assessment deficiency, surplus and deficiency, pension funds, miscellaneous and surplus revenue. There is a sheet for each one of these objects except the last.

The sheet for the department of public works includes the general items of director’s office, employment bureau, bureau of health, Newark City Hospital, Newark city home bureau of baths, Newark city alms house, rental of beds, public outings, band concerts, celebration of holidays, Ivy Hill power plant, Convalescent Hospital, dental clinic, and outdoor poor.

The sheets for the other departments do not include as many items. Each sheet has a gross amount assigned to the director’s office, which in the case of public works is about $30,000; revenue and finance about $21,000; public safety about $21,000; public affairs about $25,000, and parks and public property about $27,000. An examination of one work sheet will be sufficient to illustrate the point made by the prosecutor, which is the department of public works.

This work sheet shows estimated salaries of director, deputy director, secretary, executive clerk, four other clerks, special investigator, and an item of $2,200 for general operating expenses. The salary of the director is stated as $6,150, and the complaint of the prosecutor with respect to this item, as a sample item, is that the resolution attacked calls for $8,250, or an advance of some $2,100. It seems to be now admitted that the $8,250 is subject to a deduction of twenty per cent., so that the net salary for the director would be $6,600, but this is $450 more than the amount specified in the working sheet. Hence, argues the prosecutor, it should be set aside.

Similar reasoning is applied to substantially all the other items comprised in the attack.

It seems to be admitted also, as I think was previously stated, that any increase in one item on the work sheet is made up by decreases or elimination of other items.

I am unable to agree that there is any substantial basis for the present application. The language of the Budget act is that in regard to appropriations the budget is to “state the several purposes and the amount to be appropriated for each purpose for which the anticipated revenues are to be expended for local purposes other than schools.” Then again it says in section 11 (Pamph. L. 1917, p. 553) : “Hnder the heading of ‘appropriations’ in the budget, as provided in section 6 of this act, there shall be set forth the appropriations, itemized according to the respective objects, departments or subdepartments for which they are to be expended, with the amount to be devoted to said object, department or subdepartment. The several items of appropriations shall be set forth accurately according to the particular object, department or subdepartment for which the respective amounts are to be expended.”

I agree with counsel for the city that this statutory requirement is fairly met by a specification in the budget that such and such an amount is assigned, for example, to the office of the director of public affairs, as the expenses of that office. This would properly include the salary of the director, of his deputy, his secretary and any other clerical help and incidental expenses. I do not think that it should be held necessary to go into further detail. In other words, I agree that the informal work sheets which have been produced before me are no more than the informal memoranda used as a basis for the ascertainment of the amounts necessary to be specified in the budget items. This is the crux of the whole case.

' It is important, of course, that the taxpayers should be apprised in reasonably specific terms of the amounts proposed to be spent for the conduct of municipal affairs; but it is not necessary and, indeed, it would be impossible practically to state all the subordinate items in such meticulous detail as to deprive the several departments of all elasticity in current management.

I do not remember whether any rule to show cause was made in this matter. If no rule was made, the application for a certiorari is denied. If a rule to show cause was made, counsel for the city may present a rule discharging the same, with costs in either ease.


author: McGrath, J.

text:
    Union County Court of Common Pleas.
    MANUEL J. SILBERMAN, WHO SUES AS WELL FOR THE COUNTY OF UNION AS FOR HIMSELF, PLAINTIFF, v. SKOURAS THEATRES CORPORATION, A CORPORATION OF THE STATE OF DELAWARE, DULY LICENSED TO TRANSACT BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANT.
    Decided November 20, 1933.
    Por the plaintiff, Samuel L. Bothlard.

    Por the defendant, Atwood, C. Wolf.

   McGrath, J.

This is an action brought by Manuel J. Silberman, as a common informer, as well for the county, as for himself, to recover from Skouras Theatres Corporation, a penalty of $2,000 on each of four counts in the complaint. The plaintiff alleges that at various times, the defendant in violation of “An act for the punishment of crimes,” as declared in Pamph. L. 1898, p. 809, § 57 (Comp. Stat., p. 1764, ¶ 57), at the Liberty Theatre, Elizabeth, conducted a lottery or game of chance and thereafter delivered as a prize, a free automobile, to the lucky holder of the winning ticket. The plaintiff further alleges that by virtue of an act entitled “An act to prevent gaming,” as declared in Pamph. L. 1871, p. 109 (revision of 1877, pages 458, 459 — Comp. Stat., p. 2625, § 8), the defendant has incurred a penalty for each lottery held, in the amount of $2,000, or a total of $8,000.

The defendant gave notice that he would move to quash the process, but at the hearing this motion was abandoned and both the plaintiff and the defendant agreed to submit the question of whether the complaint discloses a good cause of action and for this purpose a notice of motion to strike out the complaint on this ground has been waived by the plaintiff’s attorney.

By an act passed September 5th, 1933, the legislature repealed the “act to prevent gaming” (on which, this suit is based) and provided further that all liabilities, penalties or forfeitures already incurred, prior to the passage hereof, are and shall be hereby released and discharged and, further, that such, repealing act shall take effect immediately.

If this repealing act of September 5th, 1933, is constitutional, the complaint discloses no cause of action; and it is constitutional unless it is prohibited by the constitution as amended, which amendment was adopted at an election held September 27th, 1897, and which reads as follows:

“No lottery shall be authorized by the legislature or otherwise in this state, and no ticket in any lottery shall be bought or sold within this state, nor shall pool-selling, bookmaking, or gambling of any kind be authorized or allowed within this state, nor shall any gambling device, practice or game of chance now prohibited by law be legalized, or the remedy, penalty or punishment now provided therefor be in any way diminished.”

The Gaming law was in force at the time the constitutional amendment was adopted in 1897 and the “act for the Punishment of Crimes” was also in force (1 Gen. Stat., p. 1059, 1060, §§ 52, 53), and was revised in 1898, without substantial change.

There is no doubt that the acts sued for were both a lottery and a game of chance and the only question is whether the legislature, by repealing the “act to prevent gaming,” has in any way diminished the remedy, penalty or punishment which, at the time of the amendment, were provided for, and which the amendment intended to perpetuate.

Since this question arose, the Supreme Court, in the case of Helen Dombrowski et al. v. The State of New Jersey, 111 N. J. L. 546, has decided that the amendment referred to has placed a ban upon any legislative change in the penalty or punishment for the suppression of lotteries, and further says: “The constitution prohibits a change and until the fundamental law is changed its provisions are controlling, and the legislature may not disregard them.” Also: “The legislature is powerless to lessen the punishment or offense even if it would be desirable so to do.”

This pronouncement of the Supreme Court is equally applicable to this case if the action brought under the Gaming act is a remedy, penalty or punishment within the meaning of the amendment.

It is obvious that the Gaming law is a remedy. It is well known that suits for penalties have been used from early times to enforce laws against gambling and other violations of statutes and to encourage prosecution. At the present day there are numerous statutes providing for civil suits for penalties for violations of statutes which may or may not be criminal. The legislature in framing the Gaming law entitled it “An act to prevent gaming,” and it is obviously a remedy in addition to the criminal law.

It is equally clear that the remedy provided by the Gaming law is a penalty in both the broad and narrow meaning of this term. “A penalty action is one which enforces a forfeiture or penalty for transgressing the law.” The term “penal” is broader than “criminal” and relates to acts which are not necessarily criminal as well. Marter v. Repp, 80 N. J. L. 530; 77 Atl Rep. 1030.

“In its broad sense penalty is a generic term which includes ñnes, as well as other kinds of punishments; but in its narrower sense, a penalty is the amount recovered for a violation of the statute law of the state or a municipal ordinance, which violation may or may not be a crime.” 25 Corp. Jur. 1149.

The penalty provided by the Gaming law is also obviously a punishment. It provides: “Any person who shall offend in the premises shall forfeit for every such offense, two thousand dollars, &c.” See, also, Shoemaker v. State, 20 N. J. L. 156; Marter v. Repp, supra. Bouvier’s Law Dictionary says that the term “penalty” applies mostly to a pecuniary punishment. In many of our penalty actions, although the suit is a civil one, failure to pay the penalty may lead to imprisonment, as in Board v. Gruber, 79 N. J. L. 257.

It is urged that the word “penalty” can be construed to mean only a fine or punishment in a criminal proceeding, hut such a construction would ignore the established meaning of the word, and the established meaning of “remedy” and “punishment” as well.

When it is remembered that the Gaming law was in force when the constitution was amended; that the purpose of the amendment was to preserve the remedies, penalties and punishment then in force and that the Gaming law specifically provides for a penalty to he sued for in a civil suit, it is idle to say that the amendment did not refer to the provisions in the Gaming law. It cannot be assumed that the people, when they amended the constitution, were ignorant of the Gaming law nor can the history and purpose of the amendment as pointed out in Dombrowsky v. State be ignored.

It is also urged that the legislature could construe the word “penalty” in the sense of forfeiture and that in that sense the word would refer only to criminal proceedings. This construction would ignore the words “punishment” and “remedy” and would also ignore the fact that the word “penalty” is specifically used in the Gaming law as referring to a civil penalty. It would also ignore the obvious fact that the Gaming law was one of the remedies, penalties and punishments which the amendment was designed to perpetuate. As a matter of fact, the word “forfeiture” is frequently used in civil as well as criminal law and it is also used in actions for a penalty, although the action is a civil one. See Conover v. Van Mater, 18 N. J. Eq. 481, also Marter v. Repp., supra. All penalties recovered in a civil suit necessarily result in the forfeiture of money or some other thing.

It is also urged that the legislature can repeal the remedy, penalty or punishment, although they are forbidden to diminish the remedy, penalty or punishment. Such a construction would ignore the history and purpose of the act, and lead to an absurd result, and besides, this question has been settled by the case of Dombrowski v. State, as already cited.

It is quite possible that the legislature may repeal an act providing for a remedy, penalty or punishment in the case of lotteries, as they did in the revision of 1898, with reference to “An act for the punishment of crimes,” provided that at the same time they provide a statute of equal or greater efficacy. They have made no such provision in the repealing act now under discussion.

There is another ground on which the statute is clearly unconstitutional and that is, that by wiping out the civil suit for a penalty, leaving only the criminal statute, the legislature has diminished the remedy, penalty and punishment, even if we use the word “diminish” in the sense most favorable to the defendant.

There is no constitutional or common law principle which prohibits the punishment of a man in two or more ways for one and the same offense (Shoemaker v. State, 20 N. J. L. 156), and at the time of the constitutional amendment there was both a civil and a criminal remedy, penalty and punishment. By wiping out the civil statute, leaving only the criminal statute, the remedy, penalty and punishment which were in force at the time are diminished or made less, since only one form of remedy, penalty or punishment would remain.

The result of all this is that the repealer adopted September 1st, 1933, is unconstitutional and that the complaint in this suit presents a good cause of action, so far as that question is concerned.

The defendant further argues that if the legislature cannot repeal the criminal laws which were in force at the time the constitution was amended, the action of the legislature in repealing such criminal law in 1898 is unconstitutional and that if any criminal law has been violated, it must be the criminal law which was in force when the constitution was amended and which the legislature attempted to repeal in 1898. This argument is dipsosed of by the case of Dombrowsky v. State and by what has already been said in this opinion as to repeal. The constitution does not prohibit repeal so long as an equal or greater remedy is provided and the remedy, penalty or punishment is not diminished. The revision of 1898 made no substantial change in the criminal law and did not diminish the remedy, penalty or punishment.

A law ordinarily looks forward and the Gaming law applies to any lottery which is prohibited by the criminal law at the time that the lottery is erected. This suit is based on the Gaming law which was in force when the amendment was adopted and the penalty sued for is a violation of the “act for the punishment of crimes,” revision of 1898, which was in force on the dates when the lotteries are alleged to have occurred. It is the violation of the criminal law which was in force at the time which gives the plaintiff the right to sue for the penalty under the Gaming law.

The motion to strike out the complaint on the ground that it discloses no cause of action is therefore denied, with costs.


author: Hartshobne, J.

text:
    Essex County Court of Special Sessions.
    STATE OF NEW JERSEY, PLAINTIFF-APPELLEE, v. HARRY KNOWLES, DEFENDANT-APPELLANT.
    Decided November 15, 1933.
    For the plaintiff-appellee, William A. Wachenfeli (by Leon W. Kapp, prosecutor of the pleas).
    For the defendant-appellant, Howe & Davis.

   Hartshobne, J.

This is an appeal from a conviction of drunken driving under section 14, subdivision 3 of the Motor Vehicle act. Pamph. L. 1921, p. 643. The defendant rests his appeal solely on technical objections to the record below, having refused both at the trial below and at that here, to enter a defense on the merits, in order to obviate the possible waiver of his technical defenses under the rule laid down in State v. Rosenblum, 102 N. J. L. 125; 130 Atl. Rep. 614.

The alleged offense occurred May 14th, 1933, subsequent to the enactment of the supplement to the Motor Vehicle act. Pamph. L. 1933, ch. 27, p. 200. This enactment radically changes the entire appellate procedure under the Motor Vehicle act, and a concurrent enactment (Pamph. L. 1933, ch. 96, p. 198) similarly alters the appellate procedure under the Traffic act. In the first place, the previous appellate jurisdiction of the Common Pleas is transferred in its entirety to the Court of Special Sessions. In the second place, the act provides that:

“Such appeal shall not operate to bring up the proceedings in the court appealed from for review, but shall operate as an application for a trial de novo and as a consent that said Court of Special Sessions may, during or before the trial, amend the complaint by making the charge more specific, definite, or certain, or in any other manner, including the substitution of any charge growing out of the same transaction or surrounding circumstances of which the tribunal appealed from had jurisdiction.”

The act further provides that such appeal shall operate as a waiver of time limitation provisions, but that, if a new charge is made, the court shall give the defendant opportunity to defend. These last provisions are, evidently, upon the theory that there is no constitutional right to appeal (Reetz v. Michigan, 188 U. S. 508; Lott v. Pittman, 243 Id. 588), so that the legislature can grant same upon such conditions as it sees fit, even to include the institution of new proceedings upon reasonable terms.

The new statute clearly evidences the further legislative intent that none of the record below is to be reviewed on the Special Sessions appeal, the proceedings to be considered substantially as if begun anew. In other words, the legislature has wiped out the previous right of the convicted defendant to have technical objections considered, either on appeal to the Common Pleas or on certiorari to the Supreme Court, and has now confined him to certiorari, if he desires his technical objections to proceedings in the court below to be considered.

Such being the clear legislative intent of the act, adopted prior to the commission of the ofíense here involved, and the appeal being based solely upon such technical objections, the defendant’s conviction is affirmed, and judgment may be entered accordingly.


author: Backes, V. C.

text:
    Blakely Laundry Company, a corporation, complainant, v. Cleaners and Dyers Union, Local No. 18422, William Johnson, William Goldman, Thomas Noonan, Emma Applegate, Alice Curtis, Lena La Monica, Mary De Prima and Diego De Martineo, defendants.
    [Decided November 15th, 1933.]

      Mr. John H. Yauch, Jr., for the complainant.

      Messrs. Josephson •& Josephson, for the defendants.
   Backes, V. C.

Blakely Laundry Company is a Trenton institution of many years standing, and of high esteem. It has a capital investment of over half a million dollars and employs more than two hundred persons. Within the last three years it has added a dry cleaning and dyeing branch to its general laundry business. Becently the cleaners and dyers union has attempted to unionize all concerns in this vicinity engaged in cleaning and dyeing, and the Blakely Laundry Company has not escaped attention. Blakely Laundry Company is on good terms with its employes, there are no disputes concerning pay, hours of labor or working conditions and it has had no trouble with the labor unions until the present attack. Upon refusal to unionize its cleaning and dyeing shop, union leaders declared a strike against the company, caused the plant to be picketed, employes intimidated and there was violence, so that the company’s business had to be shut down, later to be resumed on a restricted basis.

This is not a strike of employes, but a striking at Blakely Laundry Company’s business by the union. It is an effort to force upon the company, against its will, the will of the union; to compel it to employ union labor only, and of the union’s selection; in fine, to deprive the Blakely Laundry Company of its right to hire and dismiss its own help, and to hand these privileges over to the union. This unwarranted interference with the lawful rights of an employer to hire his' employes, and the- so-called "strike” inaugurated for that purpose, and picketing or any other form of intimidation to accomplish the end is vicious and condemned. The authorities leave no question as to this declaration of the law. Gevas v. Greek Restaurant Workers’ Club, 99 N. J. Eq. 770 (Vice-Chancellor Berry); Bayonne Textile Corp. v. American Federation of Silk Workers, 114 N. J. Eq. 307 (Vice-Chancellor Fallon).

Were this a case of a strike by employes of the Blakely Laundry Company, to advance their interests, and lawfully carried on, other principles of law would prevail.

An injunction will issue and continue until the final hearing, restraining all manner of picketing and all other methods of intimidation.


text:
    HARRY GOLDSHINE, SAM HARRIS AND MORRIS ROTHMAN, PROSECUTORS, v. STATE OF NEW JERSEY (RICHARD HARTSHORNE, JUDGE OF THE ESSEX COMMON PLEAS), DEFENDANTS.
    Submitted October term, 1932
    Decided October 23, 1933.
    Before Justices Parker, Lloyd and Heher.
    Por the prosecutors, A. Milton Jacobs and Kessler & Kessler.

    Por the defendants, Louis A. Fast.

   Per Curiam.

The case as exhibited on the papers before us is very incomplete, but we gather that the prosecutors were convicted as disorderly persons, i. e., common thieves attending a place of amusement for an unlawful purpose. Disorderly Persons act, section 6. That the conviction was before a Police Court of the city of Newark; that they procured a summary review of the conviction by Judge Hartshorne, of the Court of Common Pleas, by virtue of some such statute as section 39 of the Disorderly act (Comp. Stat., p. 1937), or the act of 1895, relating to Police Courts. Comp. Stat., p. 3995, pi. 14. The precise act is unimportant. We gather further that Judge Hartshorne sustained the conviction, and we are asked to review his action on certiorari, as of course this court has the right to do. Newark v. Kazinski, 86 N. J. L. 59; 90 Atl. Rep. 1016. To that end we have examined the affidavit and briefs submitted (there was no oral argument) and conclude that prosecutors have not shown a case reasonably calling for the interposition of this court.

Allocatur is therefore denied.


text:
    MELKON SHAHINIAN, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ANNIE SCHAHINIAN, AND MELKON SHAHINIAN, INDIVIDUALLY, PLAINTFF, v. THOMAS FIANAJIAN AND DAVID FRIEDLANDER, DEFENDANTS.
    Decided November 24, 1933.
    For the plaintiff, Alexander Simpson.

    For the defendant Thomas Fianajian, Ziegener & Brenner.

   Brown, C. C. J.

This matter is before the court on the plaintiff’s rule for a new trial on the ground that the verdict in favor of the defendant is contrary to the evidence. There was much conflict in the testimony. The plaintiff’s witness testified in effect that the defendant was operating a Dodge truck in a southerly direction on the highway between Jersey City and the airport at Newark at a speed described by a plaintiff witness as “the truck was coming fast.” The truck was being operated on its right side of the road when an automobile coming in an opposite direction suddenly turned to its left and made a “U” turn in front of the defendant’s truck, whereupon the plaintiff applied his brakes and according to the plaintiff and some of his witnesses the defendant truck thereupon skidded in a clockwise movement a few feet to the left of the center of the road and collided with an automobile then and there being operated in a northerly direction by the defendant Friedlander causing the injuries and death of which complaint is made. The defendant claims by the testimony offered that the witness Fried-lander was proceeding at a rate of fifty to sixty miles an hour and on his left side of the road and collided with the defendant thereby causing the injuries and death that were the subject-matter of the suit and that the automobile that made the “U” turn was also responsible. The court is without authority to set aside the verdict of a jury unless it is clearly against the weight of evidence. The jury are the judges also of the truthfulness of the testimony submitted to them. The testimony in this case was so conflicting it cannot be said that the jury were clearly mistaken in accepting as truthful and controlling the testimony of anyone or more of the witnesses in favor of the defendant. The liability of the defendant was singularly a jury question. The rule to show cause will be discharged.


author: Lawrence, C. C. J.

text:
    WILLIAM C. DURANT, PLAINTIFF, v. BENJAMIN BLOCK, .J. HORACE BLOCK, WILLIAM B. ANDERSON, ALFRED L. ROSENER, ALBERT F. STRAIGHT, WILLIAM B. GILES AND BERNARD MILLER, CO-PARTNERS, TRADING UNDER THE FIRM NAME AND STYLE OF BENJAMIN BLOCK & COMPANY, DEFENDANTS.
    Decided November 20, 1933.
    Tor the motion, Ferleins, Drewen & Nugent.

    Opposed, Applegate, Stevens, Foster & Reussille.

   Lawrence, C. C. J.

This suit was instituted by plaintiff against defendants to recover damages for an alleged conversion of certain stocks and other securities pledged by him with defendants (stock brokers) in margin accounts carried by them for him. The action was submitted to the court without a jury, and, on the evidence offered at the trial, in a finding of facts and determination incorporated in a preliminary postea, it was found that plaintiff, was entitled to recover of defendants for the improper sale of stocks from the accounts on October 11th, 1930, and October 14th, 1930. It appeared that defendants had proceeded to close the accounts, selling in the meantime certain stocks therein. When they were closed on November 7th, 1930, there remained due defendants as a deficit $71,367.04, for which they counter-claimed in the suit. At the time the accounts were closed, defendants still held as pledged and unsold seventy-five thousand shares of Durant Motors, Incorporated, a promissory note for $150,000 and some stock of Loew’s Incorporated. The promissory note was returned to plaintiff and defendants in writing offered to retain the Durant motors stock, which at the time had sufficient value, that is to say, a price on the exchange, in liquidation of the deficit. Resting upon what he conceived to be his legal right to damages resulting from the improper sale of the stocks in the accounts as indicated, he made no reply to defendants’ offer other than to state that he intended to maintain his position. The result was that the unsold Durant motors and other stock remained in the custody of defendants, evidently held as secruity for the deficit remaining when the accounts were closed. These pledged stocks steadily depreciated in market value thereafter, owing to the prevailing depression, and now have little or no value. This was the status of the parties and the accounts in question at the time the present suit was brought.

In the finding of facts, determination and rule for judgment, the court added:

“Judgment may be entered in accordance herewith, but since it will be necessary to ascertain the amount of the damages to which plaintaiff is entitled under the rule stated, which will be deducted from the sum representing the deficit when the accounts were closed on November 7th, 1930, as set up in defendants’ counter-claim, if the parties cannot agree thereon by stipulation, application may be made to the court to settle the same, or if that be found impracticable, a reference will be directed. A supplemental or amended postea will be signed on the determination of this phase of the litigation, to the end that final judgment may be entered thereon.”

Plaintiff now moves to have the court fix the value of the unsold stock in the accounts when the latter wore closed on November 7th, 1930, and as of that date, upon the theory that defendants converted them, and( that he should have their value then included in the damages to be awarded him. In other words, it is suggested that he is not now obliged to take such stocks back. The motion obviously cannot prevail for the reason that the court found no conversion of the stocks remaining in the accounts after they were closed. The only damages to which plaintiff is entitled are those arising from the improper sales of October 11th and 14th, 1930. The sales thereafter made to and including November 7th, 1930, were found to have been regular, under the margin contract existing between the parties. The stocks in question did not lose their character as pledged stock and defendants had the right to retain them pending the adjustment or payment of the deficit, in accordance with the recognized rules of law. Meyer, Law of Stock Brokers and Stock Exchanges (Ed. 1931), p. 313, § 65,; p. 359, § 78; p. 403, § 96; Bardsley v. First National Bank, &c., Montclair, 111 N. J. L. 512, 518; 168 Atl. Rep. 665. Plaintiff had it in his power, had he seen fit, to have ordered the sale of the stock at the time and thus have saved it from loss or depreciation. But this he did not do. The motion, in the circumstances, must be denied.

Since final judgment should be entered in this litigation, the court now fixes Saturday, December 9th, 1933, at ten A. m., at the county court house, Freehold, as the time and place when and where it will consider the amount of damages to which plaintiff is entitled and to have included in a supplemental poslea to be signed and also the sum which defendants may have stated therein as covering the deficit in question following the closing of the accounts.


text:
    INHABITANTS OF THE CITY OF PLAINFIELD, PROSECUTOR, v. FRANK L. CLEARY, JUDGE, ET AL., RESPONDENTS.
    Argued May 2, 1933
    Decided September 15, 1933.
    Before Justices Case, Bodine and Donges.
    Bor the prosecutor, William Newcorn.

    Bor the respondents, Dolliver <& Feaster, Horace F. Bunker and Codington, Blalz <& Smalley.

   Per Curiam.

This writ brings up an order of the Union County Circuit Court setting aside certain assessments for benefits against properties in Plainfield growing out of the widening of Church street, which was done as a local improvement. One property, that of the trustees of the Rahway and Plainfield Monthly Meeting of the Religious Society of Briends, fronts on the widened street and is used as a church and graveyard. The other properties are on Bront street near the point where the widened Church street deadends at Bront street.

The propriety of an assessment against the cemetery property was considered upon a writ of certiorari in Vail v. Plainfield, 9 N. J. Mis. R. 817, where the Supreme Court held that an assessment was proper. Appeal was then taken by the Society of Briends to the Circuit Court to challenge the reasonableness of the levy. There was testimony of the enhanced value of the land by reason of the improvement. There was also testimony that there was no increase in value because of the fact that the land, was used as a cemetery. The theory upon which the action of the Circuit Court is sought to be justified is that the matter of the use of the land is to be considered and, since a burial plot is no more valuable when fronting on a wide street in the center of a city than any other place, there should be no assessment.

No authority is cited for the stand taken by the Society of Friends and reliance is had entirely upon the testimony taken of experts to the effect that there is no increase in the value of the land. In a proceeding of this kind, the value of the land as such is what must be considered, without regard to the use to which the owner chooses to put it. We conclude the cancellation of the assessment should be sot aside, and the assessment affirmed.

The properties of the other respondents are, as stated, located on Front street. Assessments were levied on Front street for a distance of one hundred and fifty feet on each side of the widened street. The contention is that these properties are so located as not to be benefited by the widening. Church street was widened from thirty-three feet to eighty feet. Directly opposite the dead end lies the property of Hubert Realty Company. The next property to the west is that of the respondent MeCutcheon estate, with a frontage of sixty-four and thirty-four-one hundredths feet, and next to the west is that of the other respondents having a frontage of forty-four feet, so these properties are all within approximately one hundred and ten feet of the widened street. The weight of the testimony indicates that there was an enhancement of value of these properties by reason of the improvement. It stands to reason that the section of East Front street near Church street would be more valuable by reason of that street being eighty feet wide than when it was only thirty-three feet. The evidence does not justify the action taken in the Circuit Court and the cancellation of these assessments is likewise set aside, and the assessments affirmed.


text:
    LEON BRUNE v. WILLIAM MISKIND, JOSEPH DI DONATO, WALKATHON-MARATHON, INCORPORATED, EDWARD GIULIANO, ERNEST PFEIFFER, GEORGE FELDMAN, MICKEY THAYER, GEORGE FITZSIMMONS, AND GEORGE A. YOUNGINGER POST NO. 275, VETERANS OF FOREIGN WARS.
    Argued October 28, 1933
    Decided October 31, 1933.
    Before Justice Parker, at chambers.
    Por the plaintiff, Bozza, Bozza é Bozza.

    Por the defendants, Thomas Bruneito.

   Parker, J.

The writ was awarded by order of a Supreme Court Commissioner. The order covers eight full typewriter pages and closely follows the language of the moving affidavit, but I do not find in it any specific statement of the ground or grounds on which the attachment was ordered, except that it is “for fraudulently contracting the debt respecting which suit is to be brought.” The power of the commissioner arises, if at all, under clause 3 of section 1 of the Attachment act (Comp. Stat., p. 133), viz., proof by affidavit of fraud which Avould warrant an order for a capias ad respondendum, and this refers us at once to section 57 of the Practice act of 1903, clause 4, “that [defendant] fraudulently contracted the debt or incurred the demand.” There must be “a debt or demand founded upon a contract — express or implied.” In this case the order adjudged that there is a debt.

The material facts appearing in the affidavit are that the plaintiff and defendant Giuliano engaged in a joint venture to operate a “dance marathon” in Belleville; that they secured from defendants Di Donato and Miskind April 15th, 1932, an agreement for the use of a building for three months; that they enlisted the participation of the local veteran post b}r agreeing to pay that body ten per cent, of the net profits; that defendant Fitzsimmons, head of the post and recorder of Belleville, was also in his individua] capacity a party to the arrangement; that a permit was secured in the name of the post; that Di Donato and Miskind delayed delivery of possession on one pretext or another until May 21st when they served notice canceling the agreement on the alleged ground (claimed to be false) that nothing had been done toward performing it; that plaintiff went to see them and was told he was not wanted, and that Fitzsimmons for the post confirmed this. Giuliano deserted; one Mickey Thayer, employed by plaintiff as an entertainer, also deserted; Thayer, together with two new parties named Ernest Pfeiffer and George Feldman, not previously mentioned, formed a corporation, which, as I surmise, though it is not definitely stated, took over the hall and conducted the “dance marathon” at a profit, as claimed, of $131,000. The plaintiff claims seventy per cent, of this profit under the agreements, or $91,700, and the commissioner, as has been said, adjudged an attachment for that amount as against all the parties named, viz., Miskind, Di Donato, the corporation WalkathonMarathon, Incorporated, Giuliano, Pfeiffer, Feldman, Thayer, Fitzsimmons and the veteran post, “for fraudulently contracting the debt respecting which suit is to be brought.”

In the first place, I can find no warrant whatever for an attachment against the two corporations. Assuming that a corporation, as such, can be guilty of a fraud, as for example under the Blue Sky law (Pamph. L. 1927, p. 138), and in such cases as Stevens v. Liberty Packing Co., 111 N. J. Eq. 61; 161 Atl. Rep. 193, I have never heard of a corporation being held to bail for such fraud, and that is the test set up in the Attachment act.

But on broader grounds neither the corporations nor the individuals should have been subjected to an attachment, as on the facts averred in the affidavit there was no liability to-be held to bail in either case. It is elementary that the fraud underlying an order to hold to bail must be fraud in the inception of the contract. The present order rests specifically upon the fraudulent “contracting of a debt;” and that is the language of the statute. Our cases are clear that there must be proof of a fraudulent intent at the time of contracting. Van Kirk ads. Staats, 24 N. J. L. 121. No such proof, I think, is to be found in the affidavit. So far as appears, the contract of April 15th, 1932, on which plaintiff’s claim to recovery must fundamentally rest, was entered into honestly enough by Di Donato and Miskind, on the one part, and by Giuliano on the other part. The veteran post and Fitzsimmons were brought in by plaintiff himself, who also, with Giuliano, employed Mickey Thayer. With Pfeiffer and Feldman and the Walkathon-Marathon corporation plaintiff had no relations whatever. The gist of the matter is that the parties to the contract repented of their bargain, and in conjunction with Thayer, Fitzsimmons and the others, including Giuliano who deserted as above stated, set out to make more money by breaching the contract, freezing out the plaintiff, and taking control themselves, than by keeping the contract and letting plaintiff receive seventy per cent, of the profits. There is not a word in the affidavit to indicate that plaintiff was fraudulently induced to enter into the contract and on the faith of that inducement let any of the defendants have money which he now seeks to recover back. He stands on the contract and demands the stipulated percentage. It may be that he is entitled to a judgment for that percentage, or consequential damages for breach of the contract. On neither point is a decision now intimated. But that there is no case for an arrest for fraud as against any of the defendants, I am entirely clear.

The capias ad respondendum, will therefore be set aside, and the bail, if given, discharged, the action to proceed as if commenced by summons.

Defendants are jointly, but not severally, entitled to the costs of this motion.


text:
    JULIA B. L. MILLER, ADMINISTRATRIX, ETC., OF HERMAN MILLER, DECEASED, AND SUBSTITUTED AS PLAINTIFF FOR SAID HERMAN MILLER, v. ALBERT STIEGLITZ ET AL.
    Decided November 3, 1933.