text:
    NATHAN KANTOROWITZ, RELATOR, v. ALBERT E. PANCOAST, Jr., BUILDING INSPECTOR, ETC., ET AL., RESPONDENTS.
    Submitted May term, 1927
    Decided November 13, 1928.

      Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the relator, Levy, Fenster & McCloskey.

    For the respondents, Samuel D. Williams and J. Harry Henegan.

   Per Curiam.

An alternative writ of mandamus was allowed in this case on April 2d, 1927. A return was made to the writ; a demurrer was filed to the return.

The case is presented to this court under a stipulation of facts. It appears that on January 20th, 1927, the building inspector of the township of Maplewood, Albert E. Pancoast, Jr., refused to issue a permit to the relator to build a four-story brick apartment house to accommodate forty-four (44) families, on premises known as No. 13 Highland Place, in the township of Maplewood, Essex county. The refusal to issue a permit was based upon the fact that such a permit would be in violation of a building zoning ordinance of the township of Maplewood, adopted April 2d, 1923. Part of the above premises are in what is called the "single-family residence district,” in which the erection of an apartment house is forbidden, and part of the premises are in the business district, to wit: the northerly twenty feet thereof, on which buildings permitted are such as can be occupied, by an apartment house.

There is nothing in ordinance that prevents the relator from using any part or all of the premises for a single-family residence. The ordinance expressly provides that in a business district, No. 8, "any use permitted in a single residence district or a general residence district” is also permitted.

In this situation, we think, the case is controlled by our decision in the case of Koplin v. Village of South Orange, 6 N. J. Mis R. 489.

The result is, the demurrer to the return of the alternative writ of mandamus is overruled and a peremptory writ of mandamus is refused.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ESTHER HARRIS, PLAINTIFF-APPELLEE, v. SAMUEL ROTH AND WILLIAM N. BECKER, TRADING AND DOING BUSINESS AS ROTH & BECKER, DEFENDANTS-APPELLANTS.
    Submitted May 12, 1928
    Decided November 14, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the appellants, Michael I. Estrin.

    For the appellee, Fleming & Handford.

   Per Curiam.

This is an appeal from the Second District Court of the city of Newark;

This action was brought by plaintiff to recover $500 damages sustained by her by reason of her wrongful discharge on June 29th, 1921, by the defendants, by whom she had been hired as a cook under a written contract for a term beginning May 13th, 1921, and ending September 15th, 1921, for the sum of $950.

Judgment was rendered for the plaintiff for $500 and the’ defendants appeal.

Before the trial began the defendants objected that the court had no jurisdiction, because there was no waiver in the demand of the excess of $500. Whether or not that was so under the state of demand as it then stood is of no moment in our judgment, because when that objection was made the plaintiff, with the permission of the court, amended her demand so as to include a waiver of all damages in excess of $500.

The defendants say that the court erred in allowing this amendment. We think not. Amendments are within the sound discretion of the court, and it is evident that defendants were not prejudiced by the amendment in this instance.

We think that the evidence set out in the agreed state of the case discloses that the plaintiff proved a breach of contract by wrongful discharge and proved her damages. We need not add that we likewise think there was no error in refusing defendants’ motion to nonsuit and to direct a verdict.

We find no error in the charge of the court. If the defendants conceived that a pertinent legal principle had been omitted they should have made a request that it be specifically charged, and that they did not do.

The judgment is affirmed, with costs.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GUISEPPE LIBRIZZI, PLAINTIFF IN ERROR.
    Argued May 2, 1928
    Decided November 14, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.

      For the plaintiff in error, Gaetano M. Belfatto and Homer D. Smith.

    For the defendant in error, Joseph L. Smith, prosecutor of the pleas, and Simon L. Fisch, first assistant prosecutor of the pleas.
   Per Curiam.

The defendant was indicted by the grand jury of Essex county, the indictment in the first count charging assault and battery upon Helen Stanchwicz, and in the second count charging carnal abuse.

The jury found “the defendant guilty in manner and form as is set forth in the indictment,” and the defendant sued out this writ of error.

The first point seems to relate to testimony given by Dr. Mitchell, the state’s witness, as to the physical condition of the child after the assault. We think the testimony was proper.

The second point is that the child delayed complaining to her mother until long after the assault. Of course there is no error here. The delay affected the weight and value of the testimony, but did not affect its competency. State v. Schaffer, 87 N. J. L. 663.

The next point seems to relate to the refusal of the trial judge to admit a certificate as to the child’s age. We think that certificate was technically defective and justified the judge in excluding it; but, however that may be, here there was a general verdict of guilty, and the conviction must be sustained if there was evidence justifying a conviction of assault and battery, and an appropriate sentence therefor, regardless of the age of the girl. There was such evidence, and an appropriate sentence, and consequently the exclusion of the certificate, if erroneous, does not justify a reversal. State v. Huggins, 84 N. J. L. 254.

The other objections seem to relate to the admission and rejection of testimony. We have examined the various objections and find no merit in them.

The judgment will be affirmed.


text:
    CAROLINE T. HOPPING ET AL., PLAINTIFFS, v. CONTINENTAL INSURANCE COMPANY, DEFENDANT.
    Submitted May 12, 1928
    Decided November 14, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the rule, Arthur T. Vanderbilt.

    Contra, Applegate, Stevens, Foster, Leonard & Reussille.

   Per Curiam.

This action was brought on two policies of insurance for $1,000 each of the Continental Insurance Company, the defendant, covering property of the plaintiffs in Red Bank, to recover for fire loss. The property was insured in another company in an additional sum of $3,000, and under the standard clause contained in defendant’s policy the defendant company is not liable for a greater proportion of loss than the amount insured bears to the whole insurance, in the present case, two-fifths.

The plaintiffs, to recover the full amount of their policies, namely $2,000, had to prove a total actual loss, according to the conditions of the policies, amounting to not less than $5,000.

The jury rendered a verdict of $2,090, which included the full amount of the claim and interest.

Defendant obtained this rule to show cause why the verdict should not be set aside on the grounds argued here that the verdict was against the weight of the evidence, and that it is excessive because it included the value of a refrigerator, namely, $800, destroyed in the fire, which defendant alleges was not included in plaintiffs’ proof of loss nor covered by the policies sued on, defendant contending that evidence taken under the rule showed that it was the property of the tenant occupying the premises in question and had been insured by such tenant and the loss paid to him by the defendant.

The contentions of the defendant that the verdict is against the weight of the evidence and that it is excessive may be considered together. The claim is first that the great weight of the evidence was to the effect that the loss was well below the figure of $2,000. We have looked into that question and are unable to say that it is so.

The plaintiffs’ testimony as to the loss came from three or four witnesses, expert in character, only one of whom was interested, and apparently they variously estimated the loss at from $5,400 to $8,500, and one of them expressly testified that the refrigerator was not included in his estimate.

It is true that on the contrary a number of experts produced by the defendant considered the loss to be much less than those figures, one of them placing the figure as low as $1,696.

It will thus be seen that even though the refrigerator, which apparently was worth $800 and was destroyed, was not a part of the proof of loss, nor a part of the actual loss, and even though it had been insured by the tenant and the loss paid to him, the figures would seem to show that the verdict cannot be said to be so clearly against the weight of the evidence as to indicate mistake, passion or prejudice upon the part of the jury.

The judge left it to the jury to say whether or not the refrigerator was included in the proof of loss, and told the jury that if it was not, there could be no recovery for it; and there was no objection made to that instruction. We think, in the situation presented, we are justified in assuming that the jury did not include the refrigerator in the verdict, because an inspection of the proof of loss seems to demonstrate that it was not included in the proof of loss.

If that reasoning is correct, we do not see that we are much concerned about the so-called newly-discovered evidence; but if we are to look at that, then we are of the opinion that the so-called newly-discovered evidence is not newly-discovered evidence within the technical rules. It was known to the defendant at the time of the trial and is only cumulative.

The rule to show cause will be discharged.


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    BELLA BOTBYL, AN INFANT, BY ELIZABETH BOTBYL, NEXT FRIEND, AND GEORGE BOTBYL, INDIVIDUALLY, PLAINTIFFS, v. FRED OTT, DEFENDANT.
    Submitted May 12, 1928
    Decided November 14, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the rule, William B. Stites.

    Contra, M. Metz Cohn (Sidney Alexander, of counsel).
   Per Curiam.

This action was brought by the next friend of Bella Botbyl, a child, and by her father, against the defendant, to recover damages which the girl and her father suffered by reason of the negligent operation, as it is said, of the automobile of the defendant, on June 12th, 1926, at six p. m. daylight saving time.

The jury returned a verdict for $5,000 in favor of Bella for personal injuries and $140 in favor of her father, George Botbyl, and defendant obtained this rule to show cause why such verdict should not be set aside.

The infant Bella was six years and three months of age, and at the time of the accident was crossing the street in the city of Paterson. She really had already crossed the street, and, according to the proof, had one foot on the sidewalk and one in the gutter when she was struck by the automobile of the defendant.

The defendant’s first point is that the verdict was against the great weight of the evidence with respect to the negligence of the defendant. We think the question of the negligence of defendant was for the jury and that their finding of negligence cannot be said to be against the great weight of the evidence.

Forth First street, where the accident happened, was thirty-five feet wide. It was a clear day and light. According to testimony submitted on behalf of the plaintiff, there was no other traffic in the street at the time. As stated, she was practically on the sidewalk when she was injured. Plaintiff’s testimony is that defendant was “zigzagging” down the street until he ran into the gutter and up on the sidewalk.

Defendant’s contention, receiving some support from his witnesses, was that there was a truck in the street which obstructed his view of the child until just as she stepped out from behind the truck on her way to the curb.

The question whether there was this truck which interfered with his view we think was a fair jury question and we cannot say that the jury was not justified in finding against the defendant as to that.

Eliminating the truck from the case, then quite clearly the defendant was negligent.

From what we have said it is apparent that the motions for nonsuit and for the direction of a verdict were properly denied.

It is next said that the damages awarded by the jury to the child were excessive. We think not. The child was seriously injured and her injuries may be of a permanent character. Besides other injuries, her face is badly and permanently scarred.

We find no error in the charge, nor in the admission or rejection of evidence.

The rule to show cause is discharged.


text:
    FLORENCE WAGNER ET AL., PLAINTIFFS, v. PAUL SOSSNER, DEFENDANT.
    Submitted May 12, 1928
    Decided November 14, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the rule, Thomas E. Brown.

    Contra, William B. Stites.

   Per Curiam.

This is plaintiffs’ rule to show cause why a verdict at the Essex Circuit in favor of defendant should not be set aside.

Three reasons are assigned why the verdict should be set aside:

1. “Because the legal principles charged by the trial judge were through some mistake or prejudice on the part of the jury overlooked or ignored by it.”

2. “Because the verdict is against the weight of the evidence.”

3. “Because the verdict is contrary to the evidence.”

We think that there is no merit in the first point.

We are unable to say that the verdict is against the great weight of the evidence. It was a ease of an automobile collision, the car of the defendant striking the ear of the plaintiffs in the rear, while both were proceeding in the same direction on a public street in Harrison.

Plaintiffs and her driver testified that the plaintiffs’ automobile, at the time of the collision, had been brought to a stop near the curb.

The defendant’s testimony was that, following the plaintiffs’ automobile down the street, and proceeding in the same direction, about fifteen feet away, he was suddenly confronted with an unexpected and dangerous situation by reason of the sudden stopping of plaintiffs’ automobile directly in front of him without any warning or signal of any kind whatsoever, and that in spite of his quick action in immediately applying his brakes, he bumped into the plaintiffs’ car.

The trial judge charged the jury, in effect, that if they believed the plaintiffs’ version they should find for the plaintiffs, and that if they believed the defendant’s version they should find for the defendant.

No complaint is made of that charge.

Now, we cannot say that the verdict for the defendant is against the great weight of the evidence, more especially in view of the admitted fact that plaintiffs’ driver was engaged in testing the brakes of plaintiffs’ car at the time.

It likewise follows that we cannot say that the verdict was contrary to the evidence.

The rule will be discharged.


text:
    GEORGE M. SAWYER, PLAINTIFF-APPELLEE, v. ALEXANDER BRAILOVE, DEFENDANT-APPELLANT.
    Submitted May 12, 1928
    Decided November 17, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the appellant, Kessler & Kessler (Samuel I. Kessler, of counsel).
    For the appellee, Frank J. Burns and Frank Cohn.

   Per Curiam.

This is defendant’s appeal from the Elizabeth District Court from a judgment entered for the plaintiff by the trial judge, sitting without a jury.

The action was in replevin against Brailove for the possession of four X-ray plates said to belong to the plaintiff and for $500 damages. Possession was awarded to plaintiff but no damages were allowed. The defendant appeals, and his contention is that there was no proof of possession of defendant, or right to possession in plaintiff, or demand upon defendant. But we think that the testimony tended to show defendant’s possession of the X-ray plates, the plaintiff’s right to possession, and plaintiff’s demand for possession. There being such evidence, of course it cannot be said that the judge erred in denying motions to nonsuit and in giving judgment for possession, and this, of course, is so even though it appeared that the testimony upon one or all of these matters of fact was in conflict.

The judgment will be affirmed, with costs.


text:
    LILLIAN L. NOE, PROSECUTRIX, v. THE MONMOUTH COUNTY COMMON PLEAS COURT, RESPONDENT.
    Decided November 21, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutrix, Theodore D. Parsons

    For the respondent, William A. Stevens.

   Per Curiam.

The prosecutrix was convicted in a magistrate’s court in the county of Monmouth, which court was held by Joseph M. Cox, a justice of the peace, in and for the county of Monmouth, upon a.conviction charging her with a violation of subdivision 3, section 14, of the Motor Vehicle act, in that the prosecutrix did, on the sixteenth day of September, 1925, on a public highway of the borough of Deal, in the county of Monmouth and State of New Jersey, to wit: On Norwood avenue, said Norwood avenue being at said time and place a public highway in the State of New Jersey, operate a motor vehicle while under the influence of intoxicating liquor.

Upon said conviction, the prosecutrix was sentenced to the common jail of the county of Monmouth for a period of thirty days.

It appears that in addition to this complaint there was a complaint that on the day in question, the prosecutrix had been operating an automobile at a rate of speed in violation of the section of the Motor Vehicle act, regulating the rate of speed with which vehicles may be driven upon the public highway, &e.

Both of these complaints-were tried together, presumably by consent of the prosecutrix, since the record does not disclose she offered any objection to the course pursued by the magistrate; and upon the evidence before him, he found the prosecutrix guilty of the separate violations charged against her, and upon the conviction of the prosecutrix of operating an automobile while under the influence of intoxicating liquor, the magistrate imposed the sentence, as above stated, and upon the conviction for driving an automobile, at a rate of speed prohibited by the Motor Vehicle act, she was adjudged to pay a fine of $100.

Erom both of these convictions and judgments, the prosecutrix appealed to the Monmouth County Court of Common Pleas. By virtue of these appeals the prosecutrix was entitled to a trial de novo. Erom the record of the Court of Common Pleas, it appears that at the hearing of the appeals, counsel of respective parties agreed that the appeals be tried together, and counsel of the prosecutrix announced that the prosecutrix appeared specially and only for the purpose of interposing objection to the jurisdiction of the justice of the peace, before whom the causes were tried, which objections were as follows: (1) That the complaints were not properly sworn to, in that the justice signed the jurat as “justice of the peace of Deal.” (2) That the prosecutrix had not been granted an immediate hearing after her arrest, as required by the statute. (3) That the offense charged had occurred in the township of Ocean and not in the borough of Deal, and that a police officer of the borough of Deal had made the arrest of the prosecutrix without authority.

The trial judge overruled these objections, holding that it appeared that the justice of the peace was an officer designated by the statute as a magistrate, before whom such prosecution might be had, and that the proofs taken on the motion sufficiently disclosed that the prosecutrix had driven a motor car, while under the influence of liquor, within the limits of the borough of Deal; that as to the alleged failure of the justice to hold an immediate hearing, it appeared by such preliminary proofs that the prosecutrix was in such state of intoxication as to be unable to intelligently proceed with the hearing at the time of her arrest, and that the justice had postponed the same for that reason, until the following morning.

An exception was allowed to the ruling of the trial judge, and the court then proceeded to a hearing of the appeals de novo. The record then states that the prosecutrix remained mute and took no part in the proceedings, and then gives a list of the witnesses who were sworn and examined to establish the complaint, the substance of their testimony, and that the court found from the evidence that the complaint for reckless driving involved the complaint while driving under the influence of intoxicating liquor, and thereupon dismissed the complaint for reckless driving, but found the prosecutrix guilty of driving a motor vehicle while under the influence of intoxicating liquor, as charged in the complaint; and it was upon this conviction that the trial judge adjudged the prosecutrix to be committed to the common jail of the county of Monmouth for a period of thirty days.

The validity of the proceedings are now before us for review, by writ of certiorari sued out by the prosecutrix.

The record discloses that the first reason presented for a reversal of the judgment is that the arrest of the prosecutrix was made by an officer without a warrant, though the offense was not committed in his presence.

This objection is without any substance. A complaint was made in writing by a witness who observed the intoxicated condition of the prosecutrix, and he called an officer so that the latter might take the prosecutrix into custody. The officer, seeing her condition, took her out of the automobile to the magistrate’s office.

Under section 31 of the Motor Vehicle act (Pamph. L. 1921, pp. 680, 681) any constable or police officer * * * is authorized to arrest, without warrant, any person violating in the presence of such constable or police officer * * * any of the provisions of this act * * *. There was sufficient proof that the prosecutrix was violating a provision of the Motor Vehicle act in the presence of an officer, so that her arrest was not without warrant of law, or irregular.

The second reason urged for a reversal is that the offense was committed in the township of Ocean and the arrest was made by a police officer of the borough of Deal, in the township of Ocean. The place where the offense was committed raised a factual question, and since there was testimony which tended to show that the offense was committed in the borough of Deal, the finding of the trial judge is not reviewable.

The third reason relied upon for a reversal is that the court had no jurisdiction, in that the complaint was' defective. This reason is too general to be considered. It does not point out in what particular respect the complaint is defective.

The fourth reason presented for a reversal is that the complaint is not subscribed by an officer authorized to make complaints. There is no merit in this contention. The law does not require that the complaint should be made by an officer. The complaint can be made by an individual, who observed a violation of any of the provisions of the Motor Vehicle act.

The fifth reason advanced to support the claim that the proceedings were faulty and defective, and required a reversal of the judgment, is that the justice of the peace adjourned the case and did not hold a summary hearing in accordance with the provisions of the Motor Vehicle act. The record discloses that it was the intoxicated condition of the prosecutrix which prevented the holding of a summary hearing, and that it was in consideration of her not being able to present a defense intelligently, that the magistrate postponed the hearing until she was able to do so. The record shows she was afforded a summary hearing as soon as her condition warranted it.

There is no merit in the sixth reason advanced by counsel of the prosecutrix, that the proceedings are invalid because the prosecutrix was detained in some other place than the office of the magistrate, and, in fact, was detained in a cell in the station house. According to the testimony, her condition of intoxication was such that it was deemed best that she should occupy a cell and not be upon exhibition in a public place.

The seventh reason relied on for a reversal is like the sixth, and needs no comment.

The eighth reason has already been considered and disposed of in what has been said, supra, that it was not necessary that the complaint should have been sworn to and signed by the officer making the arrest.

The ninth reason is without merit, for it appears by the record there was no objection made in the justice court to the hearing of both complaints together in a single trial, and moreover, when the cases came on for trial de novo, in the Common Pleas Court, counsel for prosecutrix consented that both complaints be considered in one proceeding.

The tenth reason urged for a reversal is that the court below violated the constitutional rights of the prosecutrix in subjecting her to an examination by a physican without her consent. This reason seems to have been abandoned, for it is not argued in the brief, and moreover, there is no merit in the contention.

The eleventh reason relied on for a reversal is the same in character as has been commented upon in considering the fourth reason, and which later reason was found to be unsubstantial.

The result reached is that the judgment of the Court of Common Pleas be affirmed, with costs.


text:
    THE BOARD OF HEALTH OF JERSEY CITY, PLAINTIFF-RESPONDENT, v. SIDNEY FRUHMAN, DEFENDANT-RELATOR.
    Argued October term, 1928
    Decided November 22, 1928.
    Before Justices Minturn, Black and Campbell.
    For the defendant-relator, Joseph M. Alsofrom.

    For the plaintiff-respondent, Thomas J. Brogan.

   Per Curiam.

This writ of certiorari brings up for review the record of a judgment obtained for a penalty against the relator, or prosecutor, before the Second District Court of Jersey City. The state of demand filed alleged the cause of action as follows: That on January 4th the defendant had in his possession, in a store located at 107 Newark avenue, Jersey City, with intent to distribute and sell and to offer for distribution and sale, one hundred and nine and one-half pounds of miscellaneous meats that were slimy and putrid and unfit for food, all of which was contrary to an act entitled, “An act to secure the purity of foods, beverages, confectionery, condiments, drugs and medicines, and to prevent deception in the distribution and sales thereof (Revision of 1907).” The act is known as chapter 217 (Pamph. L. 1907), and the provision particularly alleged to have been violated is section 3, paragraph 6 of a supplement to the act, known as chapter 156 of the laws of 1909.

For this offense the board of health alleged a penalty of $50, besides costs of suit.

The court gave judgment, after hearing and trial, for $200, which was entered against the defendant.

The main contention of the prosecutor is that the trial court did not have the right to fine the prosecutor $200; that under the section set forth in the state of demand no power was vested in the court to impose any penalty because the act provided no penalty for a violation of section 3, paragraph 6, of the supplement of 1909.

These acts are all in pari materia and must be read conjunctively as one continuous act. Section 1 of the Pure Food act (1907) provides: “That no person shall distribute or sell, or manufacture for distribution or sale, or have in his possession with intent to distribute or sell, any article of food or drug which under any of the provisions of this act is or shall be deemed to be adultered or misbranded.”

Section 3 of the supplement of 1907 defines adulterated food as follows: “If it consists in whole or in part of a filthy, decomposed or putrid • animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal or one that has died otherwise than by slaughter.”

Section 32 of the same act (1909) provides: “That every person who shall violate any of the provisions of section 1 of this act shall be liable to a penalty of $50 for the first offense, and $100 for the second offense, and $200 for the third and each subsequent offense.”

Upon this subject the defendant was not misinformed or misled, since the act of the legislature, with which he must be presumed to have been conversant, and which was referred to in the state of demand as the basis for the action, makes the penalty specific and clear. The state of demand clearly informed the prosecutor of the statute alleged to have been violated. The facts constituting the violation were distinctly stated and he was thereby informed that it was for such violation that the penalty was claimed; and the record shows that a motion was made and allowed to amend the summons and the state of demand in this particular so as to conform with the provisions of the act. This we think was entirely regular. York v. Frank, 1 N. J. Mis. R. 544. It has been settled as a rule of procedure and practice that where the pleading contains an averment of facts bringing the case within the terms of the statute a general reference to the statute imposing the penalty is generally regarded as sufficient for the purposes of a judgment. State Board of Health v. Van Druens, 77 N. J. L. 443.

The contention therefore made that the court awarded a judgment for an amount greater than that originally demanded by the summons is without substance, and affords no basis for a reversal of the judgment.

It appears from the record that the prosecutor was a third offender in the respect complained of, and was subject to the penalty of $200; and it is also to be observed that section 40 of the Pure Eood act (Revision of 1907) vests a liberality of amendment in the trial court sufficiently comprehensive to include the question now raised.

It may be also observed that the District Court has the power to amend pleadings in the respect complained of. Comp. Slat., p. 2002, section 161 of the District Court act.

The cases cited by the defendant in support of his contention manifestly refer to situations where the defendant was not before the court at the time of the amendment, and where the amendment was made without his presence or knowledge. The defendant therefore was not embarrassed or prejudiced in any way by the proceedings taken, but must be held to have had ample notice of the provisions of the statute, and the amendments made upon notice in his presence, which are sufficiently comprehensive to justify the judgment rendered against him.

Our conclusion therefore is that the judgment appealed from should be affirmed, with costs.


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    PUBLIC SERVICE CO-ORDINATED TRANSPORT, A CORPORATION, RELATOR, v. ADDISON H. CLARK, AS COLLECTOR OF TAXES OF THE TOWN OF WESTFIELD, DEFENDANT.
    Argued October term, 1928
    Decided November 22, 1928.
    Before Justices Minturn, Black and Campbell.
    For the relator, Frank Bergen.

    For the defendant, Paul Q. Oliver.

   Per Curiam.

This is an application for a peremptory or alternative writ of mandamus requiring the respondent to accept the moneys tendered by the relator in payment of the first half of the franchise taxes assessed against the relator for the year 1927, and apportioned to the town of Westfield, and to issue his receipt therefor, and to cancel the tax lien of record.

The facts in the case are agreed upon by stipulation. The relator is a traction company of the State of New Jersey and subject to the franchise taxes imposed by chapter 290. Pamph. L. 1906, p. 644. A portion of its railway is in the town of Westfield, and therefore under the act a portion of the franchise taxes so assessed is apportioned by the state board of taxes and assessments to the town of Westfield. Under the provisions of section 6 of the act these taxes become due and payable in the same manner as other taxes, one-half on June 1st and one-half on December 1st in each year; and are made a first lien upon the property and franchises of the corporation in the taxing district on December 1st following the assessment, until paid. They are to be collected in the samé manner and subject to the same discounts and penalties as other taxes.

The total amount of the 1927 franchise tax against the railway apportioned to the town of Westfield was $5,929.03, diyisable as aforesaid.

About June 1st, 1927, the relator tendered to the respondent collector one-half of such taxes less the sum of $624.45, which was the amount which the relator theretofore paid to the town of Westfield in pursuance of a contract entered into between the relator and the said town, which the relator claims it had the right to deduct under the provisions of section 7 of the Franchise Tax act. Respondent refused to receive the same as tendered upon the ground that the reduced amount is not lawfully deductible under the provisions of the said act.

The franchise ordinance under which the railway tracks in Westfield are maintained contain the following provision:

“7. Said company and its officers, agents, servants and employes shall not, nor shall any or either of them, be allowed to shovel, throw or place snow, ice, slush or any other material along the side of its tracks in such manner as to obstruct or hinder other public travel thereon, nor on the said streets and avenues; when removing the said snow, ice, slush or other material from its tracks, said company and its officers, agents, servants and employes shall, without unnecessary delay, and within twenty-four hours after service of a written notice by or on behalf of the township committee, and with a sufficient force of men, cause the same to be leveled between the tracks and the gutter line of each side thereof.”

Thereafter an agreement was made between the town of Westfield and the predecessor of the relator that in lieu of the .railway company complying with the aforesaid provisions of the franchise ordinances the town of Westfield would remove all of the snow from certain streets in the town, and that the relator’s predecessor should pay to the town one-half of the cost incurred in removing the snow from portions of Elm street, East Broad street, Westfield avenue and Summit avenue. This agreement was carried out, and in the year 1926 the town of Westfield sent a bill for the relator’s predecessor’s share of the expense in the doing of this work, in the sum of $624.45, which amount was duly paid. This is the amount which is now in controversy, and the question to be determined is whether or not the said sum may be deducted from the franchise tax apportioned to the town of Westfield under the provisions of section 7 of the Franchise Tax act. Pamph. L. 1906, p. 647. That section reads as follows:

“All money now or hereafter payable by any street railroad corporation to any taxing district for its exclusive use, pursuant to any contract, agreement, resolution or ordinance [except money expended for paving or repairing a street, highway or any other public place, or taxes on real or personal property] shall be paid, notwithstanding this act, and when paid shall be considered on account of or in full, as the case may be, for the franchise tax to be assessed and apportioned according to the provisions hereof; if the amount so payable is greater than the amount of the franchise tax apportioned to such taxing district, such payment shall be in lieu thereof; if less, the difference in amount shall be payable as herein provided.”

It is now insisted by the relator that it is entitled to a peremptory writ requiring the respondent to accept the money tendered and to give a receipt in full for the franchise taxes assessed and payable June 1st, 1927, and to cancel the tax lien upon the records of the township.

It is to be observed that the franchise ordinance (1898) under which the relator’s predecessor operated contained a stipulation obliging it to level between the tracks and street curbs such quantities of snow as it removed from its tracks. The agreement entered into between the predecessor of the relator and the town was to the effect that the town might remove all snow from certain streets above specified, and the transport company or its predecessor agreed to pay half of the expense of such removal. As we read this agreement and construe it, it obligated the transport company to remove the snow instead of leveling it, on condition that the town would perform such service for it at a cost of fifty per cent, of the removal of all the snow from the street, and under the Eranchise Tax act above cited we think that the expense thereby incurred is not to be chargeable against an3r taxes assessed on real or personal property of the relator or its predecessor.

In our judgment the’manifest construction of chapter 290 (Pamph. L. 1906), which provides that every street railway line shall pay an annual franchise tax to the municipality through which it is operated, was to compel such street railway lines to pay the tax to the municipalities through which they operated. In Phillipsburg Horse Car Railroad Co. v. State Board of Assessors, 82 N. J. L. 49, it was declared that the tax imposed by this act is a franchise tax for the use of the streets, and it was further declared: “This is indicated by section 7, which provides that money payable to a taxing district pursuant to any contract shall be paid notwithstanding this act, but that the amounts so paid shall be deducted from the tax assessed under the act and apportioned to such district under its provisions. Money paid under such contracts are usually to be paid in consideration of the granting by the municipality of the franchise to occupy its streets. Such provision is tantamount to an expression that the privilege upon which this tax is levied and the privilege for which such moneys are paid under such contracts are to some extent, at least, similar.”

The act of 1906 (chapter 290) limits the deduction by the transport company to moneys paid to the municipality by way of license fee “for the exclusive use of the municipality.” The effort in this instance is to enable the company to deduct the money paid to the town to reimburse the town for money expended by it for the benefit and use of the company at the request and agreement of the company. This construction is emphasized by the language, “for the exclusive use of the municipality.” The license fees paid in this instance by the transport company, as fixed by the franchise ordinance, are for the exclusive use of the town, 'similar to other taxes; but in this instance the agreement is made to deduct one-half of the cost of the snow removal on certain streets, which is tantamount to the assertion that the town has been reimbursed for money actually paid out for its own use. We are inclined to agree in this respect with the views of the attorney-general in his opinion to the commissioner of municipal accounts, cited in the briefs as follows:

“If a street railway purchases its water from a municipality that company cannot deduct the amount so paid for water from the franchise taxes due under the act. Where the company receives an equivalent in value for the thing which it pays, no deduction can be made. This section (7) does not authorize any deduction by the railroad companies for commodities supplied or services rendered.”

We are of the opinion that the agreement between the company and the township, to the effect that the latter should remove the snow as required by ordinance, was a matter of convenience to the transport company. Under the agreement it admitted its obligation to remove the snow, but substituted the township to perform this service for it at a cost of fifty per cent, of the cost of removal of all the snow from the street.

Our consideration of the entire case leads us to the conclusion that the sum of money in question, the subject-matter of this contention, is not properly chargeable against the township on account of the payment of the franchise tax, and cannot be deducted therefrom, and we therefore have reached the conclusion that the rule to show cause should be discharged.


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    JOSEPH E. AMOROSE, PLAINTIFF-RESPONDENT, v. PEERLESS HOME MADE BAKING COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May term, 1928
    Decided November 23, 1928.

      Before Justices Trenchard, Kalisch and Lloyd.
    For the appellants, Pomerehne, Laible & Kautz.

    For the respondent, Richard J. Fitz Maurice.

   Per Curiam.

This was an action for the recovery of rent of property No. 320 Central avenue, East Orange, brought in the District Court of that city. The ease was tried before the judge and a jury and resulted in a verdict for the plaintiff in the sum of $250. The defendant appeals and assigned as reasons for reversal refusal of the court to grant defendant’s motion for nonsuit made at the end of plaintiff’s case and a like refusal to grant a motion for the direction of a verdict in favor of the defendant at the close of the entire case.

We think the motions should have been granted. The premises were leased on January 26th, 1926, by the plaintiff to the defendant for a period of three years at a rental of $90 per month for the first year, and varying increasing sums for the remaining period. In the month of April of that year the defendant applied to the landlord to reduce the rent. This the plaintiff refused to do, but said that he had a store at No. 324 Central avenue which he would rent for varying sums, less, however, than the rent defendant was paying. To this the defendant replied that it was satisfactory and asked the plaintiff to move his fixtures for him, which the latter did. The defendant then moved from the premises No. 320 Central avenue to No. 324, paying the rent for No. 320 to April 30th, 1926, and subsequently made payment of the rent for No. 324 from that date up to and including December 1st, 1926. The plaintiff moved into and occupied premises No. 320 a few days after it was vacated by the defendant. The present action was not brought until July, 1927, and claimed for the rent due for the' preceding five months of January, February, March, April and May, 1927.

It is inconceivable that it was the intention of the parties or either of them to continue the lease. It is clear that the contract was for the substitution of one property for another as is clearly evinced by the defendant’s statement that he was unable to pay the rent of No. 320, the suggestion of the plaintiff to substitute No. 324 and his prompt occupancy of the property himself. No other construction we think could the jury draw therefrom.

In this state of the proofs we think the defendant was entitled to have its motions granted. Sypherd v. Myers, 80 N. J. L. 321. We think it conclusively appears that there was a surrender by the tenant and an acceptance of that surrender by the landlord, and that in consequence no claim could be predicated on the lease theretofore executed.

The judgment is reversed.


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GOTTHEIL REICHERT AND JAMES GAMBINO, PLAINTIFFS IN ERROR.
    Submitted May term, 1928
    Decided November 23, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the plaintiffs in error, Leon E. Cone and William A. Hagerty.

    For the defendant in error, Albert H. Holland.

   Per Curiam.

This is an appeal by the defendants from a conviction on an indictment charging the possession of intoxicating liquors and its unlawful manufacture. The case is here both on bills of exception and on a certificate under the one hundred and thirty-sixth section of the Criminal Procedure act.

In the assignments of error and in the specifications of causes for reversal the defendants urge that the judgment should be reversed on three grounds.

1. That the learned trial judge improperly denied the defendants’ motion for the direction of a verdict of not guilty, which motion was made both at the close of the state’s case and again at the conclusion of the entire case.

2. That the verdict is against the weight of the evidence.

3. That the court should have withdrawn a juror on motion of defendants’ counsel because of certain questions propounded to the appellant Gambino.

An examination of the record convinces us that none of these grounds of appeal or causes for reversal are sufficient to justify disturbance of the verdicts and judgments rendered thereon.

The appellant Eeichert is the owner of a small farm situate in a remote section of Morris county, distant about fifteen hundred feet from any public road and on which was located a residence and barn adjoining. A portion of the farm was operated as a truck farm and in its operation Gambino was a partner. On October 25th, 1927, a raid was made on the premises by county officials and members of the state police. In the barn was found a still of one hundred and fifty gallons capacity in active operation. In the house behind a trunk in a bedroom two jugs of intoxicating liquor were found. Prom the still fumes were emanating which could be readily detected by their odor a distance of one hundred feet. Gambino was found in bed in the house at the time. Eeichert was absent. When the raid was made another man, seeing the detectives, started to run but was caught. At the direction of the officers,. Gambino and two others, also found on the place, disconnected and dismantled the still. The explanation given by Gambino of his presence on the place was that he was engaged in the joint business of trucking on the farm with the owner and had been since September 15th, and that from that time until the raid was made had been engaged in preparing the ground for. the crops.

These facts we think combined to make a prima facie ease justifying its submission to the jury at the conclusion of the state’s proofs. These proofs were measurably increased by the improbable story told by Gambino and Eeichert as to the cultivation of soil for trucking purposes from the middle of September until the latter part of October, and the like improbable story of Eeichert that he had leased the barn on October 1st to a man named Presea, a man he had never seen before or since. It is incredible that on a small place so situated those in charge of its operation should have known nothing of the existence of a still in the barn, a building ordinarily used in. conjunction with farming purposes, and that still emitting odors detectable at the distance named.

The conclusion we reach is that the trial judge was right in refusing to take control of the case from the jury and we think that the jury did no violence to the evidence in finding the defendants guilty.

The questions objected to were directed to the defendant Gambino on cross-examination, and were to ascertain his whereabouts in view of his previous statements that he had worked constantly at the farm from September 15th. In view of these statements, the questions were not objectionable.

The judgment is affirmed.


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    BESSIE MARGOLIUS, PLAINTIFF-APPELLANT, v. MICHAEL FLEMING, HAROLD C. FIELD AND ARVID MARTHIN, DEFENDANTS-RESPONDENTS.
    Submitted May term, 1928
    Decided November 23, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the appellant, Edmund A. Hayes.

    For the respondents, C. Raymond Lyons and Joseph H. Edgar.

   Per Curiam.

This is an action to recover rent for the month of October, 1927, on a lease of premises in Highland Park. It is against Fleming, as lessee, against Field, as surety, for the performance of the conditions of the lease by Field Eestaurant, Incorporated, and against Marthin, upon his or her assumption of the obligation of the lease. The lease was made May 1st, 1926, between the plaintiff and Fleming for a period of five years. On May 28th, 1927, Fleming sold his interest in the business conducted therein to Field Eestaurant, Incorporated, and the plaintiff consented to the transfer of the lease. The obligations of the lease were assumed by the Field Eestaurant, Incorporated, and on the same day Field became surety to the plaintiff for the performance of the covenants of the lease by Field Eestaurant,' Incorporated. On October 1st, 1927, Field Eestaurant, Incorporated, transferred its interest in the lease to Marthin, and on the same date Marthin assumed to perform its obligations and conditions. The lease contained a provision against assignment or the subletting of the premises without the consent of the plaintiff.

On the foregoing state of facts the court gave judgment in favor of the plaintiff against Marthin but in favor of the defendants Fleming and Field. The reasons for the conclusion reached by the trial court are not given and no brief is filed for the respondent.

We think the latter judgment was wrong. Fleming was liable as lessee, and assignment of the lease to Field Restaurant, Incorporated, did not of itself, in the absence of affirmative evidence of a surrender (of which there was none), relieve him from the obligations in the lease. Arlington Realty Co. v. Berkow, 128 Atl. Rep. 605. Field was liable by reason of his undertaking as guarantor of the performance of the conditions of the lease by Field Restaurant, Incorporated. The contract was eo-temporaneous with the assumption of the lease by the company and upon a sufficient consideration. By its terms it agreed to pay on default. In this situation the cases of Wilkinson-Gaddis Co. v. Van Riper, 63 N. J. L. 394, and Pfeiffer v. Crossley, 91 Id. 433, are controlling.

The judgment is reversed.


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    JOHN A. NAPPER, PLAINTIFF, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, DEFENDANT. JOHN W. SNYDER, PLAINTIFF, v. WEST JERSEY AND SEASHORE RAILROAD COMPANY, DEFENDANT.
    Submitted May term, 1928
    Decided November 23, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the rule, Bourgeois & Coulomb.

    Contra, Ralph W. Westcott and Robert J. Tait Paul.

   Per Curiam.

This is a review of the third trial of these eases in two of which trials verdicts were rendered for the plaintiffs and in one the jury disagreed. The cases are now before us on rules for new trials and eight identical reasons are urged in each ease for making the rules absolute. These reasons are: (1) .verdict against the weight of the evidence; (2) verdict excessive; (3) verdict result of prejudice and passion in the jury; (4) legal evidence of defendants erroneously excluded; (5) illegal evidence of the plaintiffs erroneously admitted; (6) erroneous instruction on the law to the jury; (7) erroneous refusal to charge defendant’s several requests; (8) erroneous charging of plaintiffs’ requests.

EuLe 125 of the Supreme Court requires that the party entering a rule for new trial “shall write down the reasons upon which he rests such motion with such particularity as is now required in stating grounds of appeal.” Tested by this requirement it is obvious that reasons 4, 5, 6, 7 and 8 do not adequately state any reason upon which this court can act, and leaves only the question of the weight of the evidence and the amount of the verdicts.

It is true that in the arguments counsel for the rule specify the denial of the defendant’s requests 4 and 5, but this does not supply the place of the reasons themselves. The court is entitled to know precisely the specific rulings to be dealt with and opposing counsel what he is expected to meet when the argument of the rule is presented. It will be observed that in the rule cited the last twelve words are italicized, emphasizing the purposes and importance of the requirement. In the case of State v. Blaine, 6 N. J. Adv. R. 506, the general subject of the sufficiency of - assignments of error in criminal cases was considered in a careful opinion by Mr. Justice Parker, and it was stated that the assignment of the refusal to charge requests recited by number only is irregular and insufficient, citing both criminal and civil cases as authority. Much more irregular and insufficient is it therefore when the reasons are simply that the court erred in refusing to charge generally the requests of the defendant and in charging those of the plaintiff (nineteen in number in the one case, and eleven in the other).

Coming to the valid reasons, the only one argued is that the verdict is against the weight of the evidence on the negligence of the defendant and the contributory negligence of the plaintiffs. The cases were to recover damages for personal injuries received in a collision between an automobile in which the plaintiffs were riding and a train of the defendant, and for damages to Napper’s car. Napper and Snyder were proceeding northward along the Glassboro road, and when they reached the tracks of the defendant the gate on that side being broken was not lowered, the defendant apparently relying on the signals from the train and a watchman stationed at the crossing. Of this defective condition of the gates no notice was posted as required by section 1 of the act of 1909 (Pamph. L., p. 137), which enacts that where safety gates designed to protect the traveling public are erected, any person approaching such crossing shall,, during such hours as posted notice at said crossing shall specify, be entitled to assume that such safety gates are in good and proper order and will be duly operated unless a written notice bearing the inscription “Out of Order” be posted at a conspicuous place at such crossing, or that the flagman will guard the crossing with sufficient care whereby the traveler will be warned of his danger.

The night was dark and drizzly. It became therefore a question for the jury whether (the gate being out of order and no sign to that effect being posted) the company had adequately met its obligation to warn the plaintiffs. In view of the fact that this is the second concurring verdict and that the evidence was conflicting, we are constrained to refuse to grant a new trial.

The rules are discharged.


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    EDWARD KERLING, ARCHIE THOMPSON AND CLARENCE BRADBURY, PLAINTIFFS, v. WILLIAM MANKETTO AND MAX BERG, DEFENDANTS.
    Submitted May term, 1928
    Decided November 23, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.

      For the rule, William B. Stites.

      Contra, Ward & McGinnis.

   Per Curiam.

A number of reasons are urged for making the rule absolute in this case, none of which seem to call for discussion except those relating to the damages awarded. There were three plaintiffs and three awards: To Edward Kerling, $11,500; to Archie Thompson, $500; to Clarence Bradbury, $79.53. Complant is made of the first and second awards.

The claims grew out of an automobile collision between a car driven by Edward Kerling in a northerly direction on Main avenue, in Clifton (followed by the car of Clarence Bradbury), and the car of Manketto, operated by his servant, Max Berg, in a southerly direction. The proofs were abundant that the defendant’s car passed over to the easterly side of Main avenue in front of the Kerling ear, resulting in a headon collision which in turn caused the Bradbury car to collide with the rear of the Kerling car; and that this was due to the negligence of the driver Berg.

As a result of the collision Kerling suffered a broken knee cap and injured knee joint, together with some minor cuts around the body and one leg. He was taken to the hospital where he remained for six weeks, and then was confined to his home for four months with a plaster cast on the knee. He was employed in a silk mill as a loom fixer, receiving $60 a week. When he was able to return to work he was given an easier position, as assistant foreman, at $30 a week. Later his knee gave way and he was unable to continue his employment. The proofs are that it is a permanent disablement for the trade that he knew. He incurred considerable medical expense and his car was damaged to the extent of $300. Considering the severity of the injury, the pain and the incapacity, we do not think that the verdict is so clearly excessive that it should be disturbed.

The same is true of the award to Thompson, where injuries consisted of cuts and bruises and a severe injury to the hand. When injured he was earning $35 a week and lost fifteen weeks’ time. Clearly the award of $500 was not excessive.

The other reasons alleged call for no discussion.

The rule for new trial is discharged.


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. D. RALPH STARRY, PLAINTIFF IN ERROR.
    Argued May 2, 1928
    Decided November 23, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the appellant—plaintiff in error, McCarter & English.

    For the respondent—defendant in error, Abe J. David.

   Per Curiam.

Plaintiff in error was a supervisor of schools and was indicted for lewdness in private with one of his scholars. He was convicted of the offense and sentenced to pay a fine of $1,000. The case is here on both bills of exception and specifications of causes for reversal under the one hundred and thirty-sixth section of the Criminal Procedure act.

The assignments of error and reasons for reversal are directed to alleged trial errors in rulings on evidence and in the court’s charge. It is also contended that the verdict was against the weight of the evidence.

A careful examination of the ruling and the charge leads us to the conclusion that they were free from error and that the plaintiff in error was not prejudiced in making his defense upon the merits. It would serve no useful purpose or tend to elucidate any legal principal to discuss in detail the alleged errors. The questions objected to were propounded on cross-examination of the defendant or of the defendant’s witnesses for character, and all, we think, were within the province of cross-examining counsel to ask. The charge was an impartial submission of the case to the jury by the learned judge, with some comments on the evidence, calling attention of the jury to certain features of that evidence which seemed to be of importance in the cause, at the same time shielding the defendant by clear exposition of the law respecting the burden of proof and the proof of good character which the plaintiff in error had adduced. The verdict is not against the weight of the evidence.

The judgment is affirmed.


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    HARRY J. MOSS AND ADELINE MOSS, PLAINTIFFS-RESPONDENTS, v. NATHAN NEWMARK, DEFENDANT-APPELLANT.
    Submitted May term, 1928
    Decided November 23, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the appellant, Harry Unger.

    For the respondents, Corn & Silverman.

   Per Curiam.

This action was to recover damages caused by an excavation made so near to the property of the plaintiffs as to undermine it. The ease was tried before the judge and a jury. Appellant seeks to have reviewed a number of rulings in the trial of the case. But two of these, however, are properly before us, no exception having been taken to the rulings complained of. It is only when the case is tried by the judge without a jury that parties are relieved of the duty of making timely objection and taking suitable exception to the rulings of the court. Smith v. Kruse, 128 Atl. Rep. 379.

It is first claimed that the court erred in refusing an adjournment asked for by the defendant’s attorney on the ground that a witness who had not been- subpoenaed was absent. This was a matter resting in the discretion of the trial judge.

The other exception taken was to a portion of the charge that the jury might estimate the costs of reporting the damage to the plaintiffs’ property. This instruction was not erroneous. While the real measure of damages was the depreciation if any in the market value of the property, it was proper for the jury to consider as bearing on that question the costs of restoring the property to its former condition.

The judgment is affirmed.


author: Per Criam.

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    GEORGE S. LEPORE, PLAINTIFF-APPELLANT, v. JOHN KOOLIGAN, DEFENDANT-RESPONDENT.
    Submitted May term, 1928
    Decided November 23, 1928.

      Before Justices Trenchard, Kalisch and Lloyd.
    For the appellant, A. Michael Lepore.

    For the respondent, Cyrus W. Lunn.

   Per Criam.

Plaintiff appeals from a judgment for the defendant in a case tried in the First District Court of Jersey City. The action was to recover a broker’s commission on the sale of real estate. Appellant contends that there was error of law in rendering the judgment. There was no contract in writing between the parties, but the plaintiff served upon the defendant a notice in accordance with the amendment to the statute of frauds (Pamph. L. 1918, p. 1020, § 10), requesting the defendant to sign it. This the defendant refused to do and the broker gave him an exact copy. To this the defendant made no response. Appellant contends that this created a binding contract between the parties and that he was therefore entitled to judgment.

The difficulty with this contention is that thereafter a question of fact was raised as to the service rendered by the appellant. In the case as settled by the judgment it is stated that the defendant put in his testimony and the plaintiff offered evidence in rebuttal, whereupon the trial judge, sitting without a jury, makes this finding: “From the conflicting evidence before me, the plaintiff and his witnesses claiming that he had produced the buyer, and the defendant claiming that he had himself brought the property to the attention of the buyer whom he had known for many years, I drew the conclusion of fact that the plaintiff had not actually effected the sale of the property in question, but that the defendant had himself, by his own efforts, made the sale. I, therefore, gave judgment in favor of the defendant and against the plaintiff.”

From this it appears that the disposition of the case turned wholly upon the determination of a question of fact which is not reviewable on appeal. Duff v. Prudential Insurance Co., 90 N. J. L. 646. It was essential not only that the plaintiff prove compliance with the amendment to the statute of frauds, but also that he was the efficient and procuring cause of the sale. Queen v. Jennings, 93 Id. 353. This the court found that he did not do. The judgment is affirmed.


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    CHARLES INTILI, PLAINTIFF-RESPONDENT, v. HUBERT (HERBERT A.) BONNET AND EDWARD BONNET, DEFENDANTS-APPELLANTS.
    Submitted May term, 1928
    Decided November 23, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the appellants, William J. McCormack.

    For the respondent, Ferdinand D. Masucci.

   Per Curiam.

Plaintiff recovered in the court below on a stop-notice under the Mechanics’ Lien law. The appeal specifies a number of alleged errors, for one of which there must be a reversal. The stop-notice served was for $238.76; the proofs that but $229.26 was due the plaintiff. Of this variance there was no explanation on the trial.

The amendment to the Mechanics’ Lien law {Pamph. L. 1910, p. 500) requires that the claimant shall specify in his stop-notice the amount due as nearly as possible. An unexplained demand for more than may be due is fatal. The reason for this exactness is obvious. • The owner is called on to pay claims to which he may well be a stranger. He is not directly a party to the contract with the claimant and frequently knows nothing of it. In this situation when a notice is served and calls for more than is due he is probably without knowledge whether the claim is just or otherwise. Hence, the requirement not only of good faith in the claim but that in case of variance the claimant shall bear the burden of explanation and establishing that the error was due to honest mistake and not to design or carelesness. Tuttle v. Cadwell, 92 N. J. L. 28.

The judgment is reversed.


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    P. GEROME DIFFLEY, PLAINTIFF-RESPONDENT, v. JACOBSON MANUFACTURING COMPANY, DEFENDANT-APPELLANT.
    Submitted May term, 1928
    Decided November 23, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the appellant, Cohen & Klein.

    For the respondent, Fleming & Handford.

   Per Curiam.

This was an action to recover damages in the sum of $500 for breach of contract of employment. On June 13th, 1927, plaintiff was engaged to work for the defendant at a salary of $6,500 per year, payable $125 weekly. Plaintiff remained in the employment but a short time when it is claimed the contract was annulled by the employer and the plaintiff discharged.

In the state of the case as settled by the judge it appears that five days after entering into the contract defendant advised plaintiff that it did not continue to employ him on a salary basis but offered to engage him on a commission. This offer the plaintiff refused. Then defendant offered to pay the first installment of $125 provided the plaintiff would execute a general release terminating all relationship between the parties. This also the plaintiff refused. Two days later when the first installment of salary was due plaintiff agreed to execute the release as asked for but the defendant refused to carry it out, its president stating that he would take the matter up with counsel.

Appellant contends that this action of the defendant did not constitute a rescission of the contract. We think it did. It was notice from the employer to the employe that it would not continue the contract and offering other terms. If wrongful the employe was entitled to recover the damages sustained thereby.

It is also claimed that there was later a mutual rescission. This is not the case. The subsequent négotiations pertained wholly to an adjustment of the damages sustained because of defendant’s wrongful act, and had no bearing otherwise on the former contract between the parties.

It is contended finally that it was the duty of the plaintiff to continue to tender his services. This is not true if as appears he had been definitely dismissed. It was not incumbent on him to pursue a fruitless offer to continue to work for one who had terminated the contract.

The judgment is affirmed.


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    GEORGE STOLL AND JOHN S. STOLL, PLAINTIFFS, v. FRED T. SCHANTZ AND ANDREW SCHANTZ, DEFENDANTS.
    Submitted May term, 1928
    Decided November 23, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the rule, King & Vogt.

      Contra, Samuel D. Williams.

   Per Curiam.

This is a rule for new trial allowed to the plaintiff John S. Stoll by the Circuit Court judge and limited to the question of damages only. The action was to recover damages for personal injuries received in a collision between an automobile driven by the plaintiff and an automobile of the defendant Ered T. Schantz,' driven by his servant, Andrew Schantz. The injuries sustained by the plaintiff were a fractured pelvic bone and bruises about the body, from which he suffered severe pain and incurred expenses aggregating $223. Erom the evidence it appeared that he was in the hospital one week and in bed at his home for six weeks thereafter, subsequently for a considerable time being able to get about only with crutches. The verdict was for $445.

It is objected by the respondents that the learned trial judge was without authority to thus limit the rule. This is not so. In the case of Gyorfy v. Levy, 1 N. J. Mis. R. 157, it was held under rule 83 of the Practice act of 1912 (Pamph,. L., p. 399), which provides that, “a rule to show cause why a new trial should not be granted may, in the discretion of the court, be special, and then the question shall be heard and decided on the grounds upon which the question was allowed” (now embodied in the Supreme Court rule 130), that the Circuit Court judge could grant such special rule, subject, of course, to the higher power of this court to modify or enlarge the rule. We have not been asked to enlarge the rule.

It is next objected that the evidence taken at the trial on the question of liability is not before the court. The hearing of this evidence on the amount of the verdict is not apparent, but in any event it appears from the respondents’ admissions in their brief that objection was made to the sufficiency of the state of the case in accordance with rule 126. Application was then made to the trial judge who settled the case adversely to the respondents’ contention. The record as it stands is therefore all that is or properly can be placed before us on this rule and from it we think the verdict is so grossly inadequate as to require a new trial on the amount of the damages.

Eule absolute as to damages only.


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    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JEROME M. WATTERS, DEFENDANT-PROSECUTOR.
    Argued October term, 1928
    Decided November 22, 1928.
    Before Justices Minturn, Black and Campbell.

      For the plaintiff, Edward L. Katzenbach, attorney-general.
    For the defendant, Howe & Davis.

   Per Curiam.

The application is for a writ of certiorari to review the finding of the Eirst District Court of the city of Newark resulting in the conviction of the prosecutor upon a charge of practicing optometry without a license, in which proceeding the statutory penalty was imposed upon the prosecutor.

The action was brought to recover the penalty under section 21 of the act of 1904 (1 Gomp. Stat., § 108), as follows: “No person, not the holder of a certificate of registration, duly issued to him, shall, after January 1st, 1915, practice optometry within this state.”

The defendant was a licensed osteopath, and insisted that because of his license in that respect he was further entitled to practice optometry. The practice of osteopathy is defined by the statute (1 Gum.. Supp. Comp. Stat., p. 1896), as “a method or system of healing whereby displaced structure of the body are replaced by the hand or hands of the operator in such a manner that the constituent elements of the diseased body may reassoeiate themselves for the cure of the disease.”

Optometry is defined by the statute (Pamph. L. 1919, p. 105; 1 Gum. Supp. Comp. Stat., p. 1900) as follows: “The employment of objective and subjective means for the examination of the human eye for the purpose of ascertaining any departure from the normal, measuring its powers of vision, and adapting lenses for the aid thereof. Any person who shall offer or attempt to practice optometry, or who shall publish or represent himself as qualified to practice optometry, shall for the purposes of this act be deemed to practice optometry within the meaning of this act.”

The twenty-third section of the act provides: “That nothing in this act shall be construed to apply to a duly licensed physician authorized to practice medicine under the laws of the State of New Jersey.”

The Osteopathic acts have been amply defined by this court in conformity with the plain provisions of the statute. State Medical Board v. De Young, 6 N. J. Mis. R. 231; State Board of Medical Examiners v. Baudentistel, Ibid. 249.

The question in the case is reduced to the single one as to whether or not the defendant’s legal right to practice osteopathy includes the right to practice optometry, and such is his contention. It was in evidence that the defendant tested the patient’s eyes by the employment of objective and subjective means and prescribed glasses for the use of the patient. These facts were found by the District Court, and upon them the conviction resulted, and such finding, being a question of fact with ample evidence to support it, is not reviewable here. Nor is there anything in the contention urged by the prosecutor that because he is a regularly licensed osteopath he comes within the category of a licensed physician who may practice medicine and surgery, including that branch of medical service here involved. The difficulty with the proposition is that the defendant is limted by statute to the practice of osteopathy, which is specifically defined by the statute and by the decisions, and does not bring him within the generic term of a regularly licensed physician.

Our examination of the case leads us to the conclusion that the application for the writ of certiorari should therefore be denied.


text:
    ROBERT A. ALTSCHULER AND ARTHUR L. ROBINSON, PROSECUTORS, v. NEWTON H. PORTER, CIRCUIT COURT JUDGE; EMIL A. C. KEPPLER AND MAX H. KEPPLER, PARTNERS, TRADING AS KEPPLER & COMPANY, AND CLARENCE MABIE, RESPONDENTS.
    Decided November 24, 1928.

      Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutors, Rex B. Altschuler.

    For the respondents, Sidney W. Eldridge.

   Per Curiam.

This matter comes before us by writ of certiorari,, to review the legal propriety of an order made by Newton H. Porter, the Circuit Court judge, holding the Circuit in Bergen county, in an attachment proceeding instituted in said Circuit, by Robert Altschuler, plaintiff, v. Charles W. Owen, defendant, setting aside an order previously made by the Circuit Court appointing an auditor in said attachment proceeding. The facts are fully set forth in the opinion of Judge Porter. We concur in his views as stated by him in the opinion. The opinion is as follows:

"The facts which were stipulated by counsel on this motion’ are, in part, as follows:

"(1) Keppler & Company brought an attachment suit against Charles W. Owen, an absconding and non-resident debtor, on August 3d, 1936, for $58,840.88. A writ was delivered to the sheriff of Bergen county on August 4th, 1936, returnable August 33d, 1936, whereupon he levied on certain residence property and contents. This writ was returned to the clerk of the Supreme Court by the sheriff on August 13th, 1936.

“(3) On August 10th, 1936, an attachment suit was brought in the Bergen County Circuit Court against said Owen by Robert A. Altschuler for $5,513.50, and a writ of attachment issued on that date returnable on September 14th, 1926. Said writ was delivered to the sheriff on August 10th, 1936, and he levied on that date on twenty shares of stock of United Bond and Mortgage Company’’, and a certificate of membership in the Hackensack Golf Club, all standing in the name of the said defendant.

“(3) An auditor was appointed by the Supreme Court on August 26th, 1926, and an auditor was appointed by the Circuit Court on September 14th, 1926.

“(4) On August 26th, 1926, an alias writ of attachment was issued out of the Supreme Court in the Keppler suit aforesaid directed to the sheriff of Bergen county, who thereunder, on August 31st, 1926, levied upon the twenty shares of stock of United Bond and Mortgage Company, and the certificate of membership in Hackensack Golf Club aforesaid.

“(5) On September 18th, 1926, a pluries writ of attachment was issued out of the Supreme Court in the Keppler suit aforesaid, directed to the sheriff of Bergen county, who thereunder on October 8th, 1926, levied upon the twenty shares of stock of United Bond and Mortgage Company, and the certificate of membership in Hackensack Golf Club aforesaid.

“It seems settled under the decisions of this state that more than one writ of attachment may issue out of the same court against the same defendant at the suit of different plaintiffs, but that but one such suit be permitted to go to judgment and but one auditor shall be appointed.

“The legislative intent was to conserve the property of an absent or absconding debtor for the benefit of the attaching and applying creditors, to take the property into the custody of the laws and to administer it for that purpose. Harris v. Linnard, 9 N. J. L. 58; Cummins v. Blair, 18 Id. 151; Brundred v. Del Hoyo, 20 Id. 328; Brown v. Bissett, 21 Id. 46; Duffin v. Wolf, Ibid. 475; Woodward v. Lishman, 80 Id. 586.

“The case at bar, however, is distinguishable from all of the above cited cases in that the writs were not issued out of the same court and the property levied on was not the same. No case is cited which covers this situation. Nor have I found any. In principle, however, I see no difference. The writ in the Supreme Court suit was.issued and executed prior to the Circuit Court writ and is therefore the senior writ and should: take precedence. This is so notwithstanding the fact that, different property was levied on under the original writs.

“The auditor appointed by the Supreme Court in the Keppier suit should administer all of the property levied on for the benefit of the plaintiff in that suit and applying creditors, thereunder as provided by statute.

“The appointment of the auditor in the Altschuler Circuit: Court suit should be set aside.

“An order will be signed in accordance with these views.”'

Eor the reasons stated in the opinion, the certiorari is dismissed, with costs.


text:
    JOHN O’DONNEL, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF DANIEL J. O’DONNEL, DECEASED, PLAINTIFF, v. LAGGREN BROTHERS COMPANY, INCORPORATED, A CORPORATION OF THE STATE OF NEW JERSEY, AND PATRICK CONTEY, DEFENDANTS.
    Submitted May term, 1928
    Decided November 23, 1928.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the rule, Kellogg & Chance and Frank V. Introcaso.

      Contra, Edward Griffin.

   Per Curiam.

This is a rule for new trial allowed to the defendant Laggren Brothers Company, Incorporated. The action was by O’Donnel, as administrator of his deceased son Daniel, a bo]'- a little under fourteen years of age, to recover damages for the death of the son, claimed to have been caused by the negligence of the defendants. The case was tried, at the Hudson Circuit and resulted in a verdict of $6,500 against Laggren Brothers, Incorporated, and a verdict of no cause of action .■as to the defendant Contey.

The reasons urged for making the rule absolute are that the court should have granted the defendants’ motion for a nonsuit at the conclusion of the plaintiff’s proofs and a like motion for direction, of a verdict in favor of the defendants at the conclusion of the entire ease, on the ground that no negligence had been shown in the defendant and that the deceased was guilty of contributory negligence; also that the verdict is contrary to the weight of the evidence and is excessive.

The action arose out of an accident which occurred about noon, August 3d, 1926, on Broadway just below Eorty-fourth street, in the city of Bayonne. Deceased was riding on a bicycle westerly on Forty-fourth street, intending to turn ■southward on Broadway. As he reached Broadway his progress was stopped by a truck of the defendant Contey, which was proceeding south on Broadway. As the truck passed he proceeded immediately behind it, passing down Broadway, ■and then turning to his right and riding beside the Contey truck, collided with the rear left wheel of the Laggren truck ■and was thrown under the rear right wheel of the Contey truck and killed. One witness for the plaintiff testified that the Laggren truck had been parked facing the wrong way on the west side of Broadway, turned around and was proceeding south when the collision occurred; later testifying that the turn was not complete at the time but that it was then pointed toward the Contey truck moving south. Another witness for the plaintiff testified that the Laggren truck was pointed toward the Contey truck when the accident happened.

If the Laggren truck was proceeding south, obviously no negligence was exhibited in the driver. If it was turning and was facing the Contey truck at the time of the accident, it would be difficult to see how a collision of the bicycle with the left-hand rear wheel could throw the deceased the length of the truck and in front of the rear wheel of the Contey truck. The whole story, however, that this truck had been parked facing in the wrong direction on the street or that it made any movement is so at variance with the great preponderance of evidenec in the case that a new trial must be awarded.

Rule absolute as to Laggren Brothers Company, Incorporated.


author: Buchanan, V. C.

text:
    Arcade Realty Holding Corporation, complainant, v. Charles G. Hildinger et al., defendants.
    [Decided October 18th, 1928.]

      Mr. Alexander Budson and Mr. James J. McGoogan, for the complainant.

      Mr. Harry Heher, for the defendants.
   Buchanan, V. C.

In 1925 Eredericlc A. Duggan leased the premises Nos. 13-17 East State street, Trenton, New Jersey, to Messrs. Lissner, Krueger and Goldberg for sixty-three years, subject to existing tenancies, and assigned his lessor’s interest in such tenancies.

Among such existing tenancies was a lease in 1920 from Duggan to Hildinger and Bishop, of a part of the premises, for a term of ten years. Hildinger and Bishop operated billiard and pool parlors, and by their lease were to pay as rent, in monthly installments, “a sum equivalent to one-half the gross receipts” of such billiard rooms, “less payments made for the labor, light, heat and advertising necessary to operate the same.” •

Lissner, Krueger and Goldberg immediately assigned their rights to complainant (their corporation).

Subsequent to complainant’s thus becoming the landlord of Hildinger and Bishop, the latter rendered monthly statements to complainant, in and by which they deducted expenses other than labor, light, heat and advertising, and claimed the right so to do.

Complainant thereupon filed its bill for discovery and an accounting and for an adjudication of the true interpretation of the contract.

Defendants contend that during the entire term of their lease, prior to the lease from Duggan to complainant, they had, with the acquiescence and consent of Duggan, deducted these additional expenditures, to wit, all the expenditures in the operating of the billiard parlors, including the carrying over into a succeeding month, as an expenditure for that month, of any deficit in one month’s receipts under the expenditures for the same month; that this course of conduct constituted an interpretation of the contract" by the parties, and perhaps a mutual modification thereof, which will be upheld now as against Duggan’s assignees just as against Duggan himself.

Complainant contends that the lease is clear and leaves no room for interpretation; that no oral modification of the lease can be valid or binding, because of the statute of frauds; that if such modification was made, and would otherwise be valid and binding, defendants are estopped from such claim because they did not notify complainant’s assignors of such modification.

Let us consider first the questions arising, as between lessor and lessee, under the provisions of the lease.

The lessor agreed to install toilet rooms, elevator and electric wiring; the lessee agreed to install electric light fixtures, billiard tables and appurtenances, and to operate the leased premises as a billiard parlor.

The rental for the premises “during the term” of the lease, is a sum equal to one-half the gross receipts of the billiard rooms, less the payments made for labor, light, heat and advertising necessary to operate the same; in other words the rental was to be one-half the net receipts of the billiard rooms, such net receipts being ascertained by deducting from the gross receipts the specified items of expense. (In paragraph 5 of the lease these net receipts are spoken of as “profits.”)

The proofs show that some of the expenditures such as for coal, and license fees, while made in one month, covered more than one month’s operation. The lease does not provide for a monthly rental, but a rental for the term, paid in monthly installments. It seems clear therefore that the accounting between the parties must “carry over” from month to month— not that a monthly rent would be due each month on the basis of that particular month’s expenditures and receipts.

To illustrate: If in April, say, the receipts were light and the expenditures heavy, the latter might exceed the former, and there be a loss instead of a profit for that month. In that event not only would there be no installment payable to the lessor for that month, but the lessees would be entitled to add the loss' to the expenditures for the month of May in ascertaining the “profit” for May, one-half of which would be payable to the lessor.

In other words the rental is for the whole term as a whole, and the lessor is only entitled, in the long run, to one-half thh net receipts from the business during the whole term (unless the receipts should be diminished by failure of lessees to operate the business in a proper manner).

On the other hand, the lessees have no right, under the terms of the lease, to deduct anything but the specified expenditures in arriving at the net receipts of which the lessor is to receive half. The statements of account rendered by the lessees to complainant; show that they have deducted a number of such items, for instance, amounts paid for billiard balls, for linoleum, for repairs, for cushions, for a radio set, for towels and divers other items which, under the terms of the lease, are not so deductible. Paragraph 3 of the lease expressly provides that lessees shall at their own cost and expense keep the equipment in complete renovation and repair and supplied with all appurtenances. The lessees under a lease are bound'to make repairs to the leased premises, unless the lessor agrees so to do; this lease contains no such agreement by the lessor. There are other items of reduction in the statements of account, as to the propriety of which the evidence before the court is insufficient for determination. ■

Let us next consider whether any reason appears why this matter should not be determined as it would be between the original lessor and the lessees. The lease was not recorded. The evidence shows that there was never any conversation or communication between complainant and the lessees, Hildinger and Bishop, as to the terms or rights under this lease until after complainant had succeeded to the rights of the original lessor, Duggan. (The word “complainants” will be used from this point herein to include complainant’s assignors.) So far as appears by the evidence complainants obtained whatever information they had, about the Hildinger and Bishop lease, from Duggan. ■ Hildinger and Bishop were in open possession; complainants had notice therefore that they had rights,' and were bound at their peril to inquire of Hildinger and Bishop what their rights were. This they did not do. There is nothing therefore to estop Hildinger and Bishop from asserting such rights as they had.

It remains to be considered what rights Hildinger and Bishop did have. As has already been noted they had the right to carry over losses incurred in one month into- the next month’s accounting. They also claim that by agreement between them and Duggan, or by his consent and acqiescence and estoppel against him, they acquired the right to make deductions other than those specified in the lease. To this latter claim- defendants interpose the objection of the statute of frauds against' an oral modification of the lease. This objection wbuld seem to be valid (in the absence of any eircumstances raising an estoppel against complainants relying thereon — and none such appear); but aside from that, the proofs appear quite insufficient to establish that there was any agreement to modify, or any circumstances of acquiescence or otherwise which would estop Duggan (or the complainants who succeeded to his rights and liabilities) from denying such a modification.

It does appear by the proofs that from the very beginning Hildinger and Bishop rendered statements of account to Duggan which included deductions not authorized by the lease, and gave checks for rent based on such statements, which checks were retained and cashed by Duggan.

This, however, is not enough to preclude Duggan or complainants from insisting now on their legal rights — the mere receiving by Duggan of a less amount than was legally due him. His acceptance of a part only of what was due him, does not, without more, constitute a waiver of his right to the balance or an estoppel against his asserting such right. There must be shown either an agreement with consideration or an intent to waive, or a change in defendants’ circumstances, because of his failure to insist on his rights, rendering it inequitable. for him (or complainants) now to insist on them. None of these is proven by the evidence.

The only evidence in anywise tending to show an agreement or waiver by Duggan is that of Hildinger. Bishop testifies that he never had any conversation with Duggan about the lease or the statements or the accounts. The bookkeeper, Laird (the only other witness on the point), says only that in the early days of the lease Duggan called several times and discussed the contents of the statements with Hildinger, out of Laird’s presence, and then asked Laird to get the bills for some of the items shown on the statements so that he could see what the expenditures were for.

Hildinger testifies that “in a conversation with Bishop and Duggan * * * there was some objection to the items to be deducted,” and Mr. Duggan said: “There is only one way to get at this, and that is to count everything in. He was to keep up the repair of the buildings and the heater and everything like that;” that Duggan “said he didn’t think it could be worked out the way the lease called for and the only way to do it was to deduct everything out, and talked it over. Well go ahead and make all the deductions and then try to do the best we could to get along.”

He also says that Laird and Duggan talked it over.

Eecalled, he said that he made the additional deductions because that was “my understanding of the lease in conversation with Mr. Duggan;” and later asked as to when the modification was made, he said, “I don’t recall that modification just offhand.”

These are the portions of Hildinger’s testimony which are the strongest in favor of defendants. Taken by themselves they are quite unsatisfactory and fail to establish any valid agreement modifying the lease. Taken in connection with the balance of Hildinger’s testimony, which is replete with “I think” and “I don’t recall,” and statements of which the meaning is quite unintelligible to this court, the testimony is still more unsatisfactory. In addition, Bishop (the other defendant himself) and Laird (defendants’ witness) say that they never had any such conversations with Duggan. Still further, Krueger (one of the complainants) testified — and it was not denied by Hildinger — that after complainant had taken over this property and the present dispute had arisen, he, at Hildinger’s suggestion, arranged a conference with Duggan and Hildinger, at which he (Krueger) asked why Hildinger and Bishop had been allowed to deduct the additional items, and Duggan denied that he had authorized or allowed the deductions to be made, saying that the only way he allowed it was that he didn’t get paid.' Duggan was not called as a witness, nor any reason given for the failure. The burden was of course on defendants to establish their affirmative defense. The evidence fails to establish modification either by agreement, waiver or estoppel.

Defendants concede the right of complainants to an accounting — the dispute has been as to the items to be dealt with in the accounting. The only items which defendants are entitled to deduct from ihe gross receipts are those as specified by the lease, and herein determined, with this exception: It is intimated in the proofs that defendants may have made expenditures which they were not bound to make under the lease and of which lessors received the benefit (such as heating part of the building not leased to defendants). Complainants seeking equity must do equity, and if any such items in fact exist defendants should be allowed credit for them.

It may be referred to a master to take and state the account, unless the parties can agree.


text:
    DAVID SEIDMAN, PROSECUTOR, v. JOHN CRAVEN & SONS COMPANY, ALBERT T. SUMMERFIELD AND WILLIAM H. BROWN, DEFENDANTS.
    Decided November 24, 1928.
    Before Justices Trenchard, Kalisch and Katzenbach.
    For the prosecutor, Milberg & Milberg (Samuel Tartalsky, of counsel).
    For the defendants, Peter Bentley (Herbert Clark Gilson, of counsel).
   Per Curiam.

The action of the prosecutor was instituted under section 96 of the District Court act (3 Comp. Slat., p. 1895), which section provides as follows: "If any person shall enter upon or into any lands, tenements or other possessions, and detain or hold the same with force or strong hand, or with weapons, or breaking open the doors, windows or other part of a house, whether any person be in it or not, or by any kind of violence whatsoever, or by threatening to kill, maim or beat the party in possession, or by such words, circumstanuces or actions as have a natural tendency to excite fear or apprehension of danger, or by putting out of doors, or carrying away the goods of the party in possession, or by entering peaceably and then turning by force or frightening by threats, or by other circumstances of terror, the party-out of possession; in any such ease' evey person so offending shall be guilty of a forcible entry and detainer within the meaning of this act.”

Section 97 provides: “No person who shall lawfully or peaceably enter upon or into any lands, tenements or other possessions, shall hold or keep the same unlawfully and with force, or strong hand, or weapons, or violence, or menaces, or terrifying words, circumstances or actions aforesaid; and it is hereby declared that whatever words or circumstances, conduct or actions will make an entry forcible under this act shall also make a detainer forcible.”

Section 98 provides: “The three next preceding sections of this act shall extend to and comprehend terms for years, and all estates, whether freehold or less than freehold.”

The record before us for review, by writ of certiorari, discloses that the posecutor was nonsuited in the Second District Court of Jersey City. The trial judge, sitting with a jury, nonsuited the plaintiff, upon the ground that the cause of action was coram non judice, and was controlled by the decision of this court in Miller v. Kutchinski, 92 N. J. L. 97.

As section 96 of the District Court act, supra, expressly confers jurisdiction of this class of cases on the District Court, and as the case sub judice was brought under that section it cannot properly be said that the action was coram non judice.

The cause of action dealt with by the Supreme Court in Miller v. Kutchinski, supra, was founded on the Eorcible Entry and Detainer act (2 Comp. Stat., p. 2598), but this is not the case here. This may be of slight importance, since the facts developed in the instant case are very dissimilar. This leaves the question whether or not there was any proof of either forcible entry or unlawful detainer.

The facts, disclosed at the trial, are as follows: About the middle of June, 1926, in a conversation had between the defendant Brown, who was the treasurer of the John Craven & Sons Company, and the prosecutor, something was said by the former to the latter concerning the leasing of the premises in question to him. From that conversation it is gleaned that the prosecutor was willing to pay $100 per month rent for the premises, whereupon Brown undertook to find out what rent the owner of the premises, Summerfieíd, wanted for the premises. In that latter part of June, 1926, Brown wrote to the prosecutor the following: “Mr. Summerfield, owner of the store, 73 Railroad avenue, states he will not rent the store for a cent less than $125 per month.”

The testimony then is to the effect that on the 30th day of June the prosecutor gave his check for $125 to Brown, for which the former received a receipt, which was dated July 15th, 1927, and recites the following: “Received from Mr. Seidman $125 in payment for rent due in advance, for house No. 73 R. R. avenue, Jersey City, for the month ending August 15th, 1926.”

This receipt, on its face, has printed under it the word “agent,” but without signature, and at the bottom appears the following: “John Craven & Sons Co. paid L. June 30th, 1926.”

There was also testimony to the effect that Brown handed to the prosecutor a key for the premises. But on July 2d, 1926, Brown returned the money to the prosecutor. The prosecutor testified that in the conversation alluded to, he was told that if he wanted the premises for $125 a month there would have to be a lease for three years. Of course, an oral agreement, if made for such a term, was void, as being within the statute of frauds.

It was not until the 16th day of September, 1926, when the defendants were served by the prosecutor with the following notice: “I hereby demand of you to forthwith deliver to me possession of premises and store, situate and known as No. 73 Railroad avenue, in the city of Jersey City, county of Hudson, and State of New Jersey, which said possession I am entitled to, and that in default of compliance with the said demand, you will forthwith be proceeded against, as guilty of forcible entry and unlawful detainer.”

The defendant Summerfield testified that he owned the premises, and that John Craven & Sons Company, nor anyone else, had any authority to sign his name to any lease without his express authority. He further testified he had never given the Craven company any permission to let the premises to the prosecutor; that he never signed any lease for the premises, and as far as he knew, the Craven company had never signed any lease or leases for him, but had acted for him in the collection of rent.

The undisputed fact in the case is, that the right of entry of the prosecutor, if he had any, did not commence before July 15th, 1926.

It was essential in order for the prosecutor to recover on the theory of forcible entry, to show that he was legally in actual possession at the time he alleges there was a forcible entry, and secondly, if he was forcibly ousted, and is legally entitled to possession, in order for him to succeed on the theory that there was and is an unlawful detainer, it was incumbent upon him to establish that he was legally entitled to actual possession.

It was practically conceded, by counsel of prosecutor, at the trial, that there was no testimony establishing either forcible entry or unlawful detainer, by either Summerfield or the Craven company. The insistence being that a nonsuit ought not to have prevailed in favor of Brown, the treasurer of the company.

At the time the motion for nonsuit was made, the posture of the case was, that it appeared that the prosecutor had at no time been in the actual possession of the premises, which was an essential factor, in order to entitle him to a verdict of restitution, since, if there was a letting, it was for only one month, so that the prosecutor’s right of possession expired on the 15th day of August, 1926.

The prosecutor gave the statutory notice for possession of the premises to the defendants nearly a month after the monthly term of the letting had expired.

The verdict in a case of unlawful detainer is restitution of the premises to the person entitled to possession.

As Brown had .no estate in the premises and was not in either actual or constructive possession, it is quite clear that under the provisions of the statute upon which the prosecutor’s action is based, Brown could not be properly held to answer, and therefore the nonsuit granted in his favor was proper judicial action.

Judgment is affirmed, with costs.