author: Smith, Wm. A., C. 0. J.

text:
    SARA F. BASEN AND GRACE F. GROSMAN, EXECUTRICES OF THE ESTATE OF ABRAHAM FISHMAN, DECEASED, PLAINTIFFS, v. CLINTON TRUST COMPANY, DEFENDANT.
    Decided January 30, 1935.
    For the plaintiffs, Grosman •& Grosman.

    For the defendant, Burke, Sheridan ■& Hourigan.

      Amicus curice on behalf of the commissioner of banking and insurance of the State of New Jersey, in opposition to the motion, Louis J. Cohen, assistant attorney-general.

      Amicus curice on behalf of the Keconstruction Finance Corporation, in opposition to the motion, Frederick P. Smith.

   Smith, Wm. A., C. 0. J.

This is a suit by the plaintiffs to recover the balance of a deposit of monej’s deposited with the defendant trust company in its savings department. The account was opened by the plaintiffs on July 28th, 1932, with a deposit of $5,000. At the end of 1932 the account had been increased by deposits so that the plaintiffs had to their credit $7,780. The defendant trust company, together with others, was closed by the March, 1933, proclamations. Thereafter the defendant was permitted to open on a restricted basis which forbade the withdrawal of deposits made previous to the dosing. Subsequently the defendant put into effect a reorganization as to its capital structure, which will be referred to later, and resumed business with the consent of the commissioner of banking and insurance, and new stock was issued, part of which was subscribed for by the Reconstruction Finance Corporation. The defendant received cash for the stock taken by the Reconstruction Finance Corporation, and the reorganization plan contemplated the depositors’ taking stock for one-fourth of their deposits, and approximately one-fourth of the deposits was to be exchanged for participating certificates in a holding company formed to take over the frozen assets of the defendant. When a sufficient number of consents had been received from the creditors and stockholders of the defendant, the commissioner of banking and insurance permitted the defendant to open for business on an unrestricted basis.

Upon the opening there was placed to the credit of the plaintiffs, and the bank so notified them, the sum of $4,125.47. This amount was thereafter withdrawn by the plaintiffs and this suit is now brought to collect the balance of the deposit which was in the hands of the defendant company at the time it was closed in March, 1933.

The reorganization is set up as a defense to the action, and this is set forth under the first defense to the answer. The second defense to the answer is to the effect that the plaintiffs are barred from recovering on the ground of estoppel and that they have approved the reorganization agreement by their withdrawal of the deposit which was credited to them.

At the time of the closing of the trust company, the Trust Company act, which governed the charter of the defendant, provided by its tenth section (4 Comp. Stat., p. 5659), in effect, that no change in the certificate of incorporation of a trust company incorporated under the act should be made whereby rights, remedies, or securities of existing creditors should he in any way impaired; and other sections, particularly section 22 and section 25, provide for proceedings where the company becomes unsafe and where the same was to be wound up by a receiver.

The reorganization was carried ont by the defendant pursuant to an amendment of the Trust Company act passed in 1933 after the closing of the trust company and subsequent to the making of the deposits here sought to be recovered.

The statutes under which the reorganization was effected are chapter 116 (Pamph. L. 1933, p. 241; 1933 Annual Stat. Ser., § 17-74), and chapter 287 (Pamph. L. 1933, p. 770; 1933 Annual Stat. Ser., § 17-80). The latter statute was an amendment of the former in so far as the seventh section is concerned. It will not be necessary to quote these statutes at length; suffice to say that they provide for an amendment of the charter so as to issue the stock contemplated in the reorganization, and the seventh section particularly applies to the creditors. The requirement of the statute is that seventy-five per cent, of the creditors and depositors, and two-thirds of the stockholders consent to the plan, and that any of the remaining twenty-five per cent, of the creditors who do not consent are bound by the reorganization and must accept the stock and securities provided for by the reorganization.

The reorganization was carried out without the consent ■of the plaintiffs, and immediately one-half of the deposit was made available in cash being credited to the plaintiffs’ open account, and was withdrawn. This suit is for the remaining half, which the defendant offers to pay half in stock and half in participating certificates in the holding company which took over the unliquidated assets of the defendant corporation.

The plaintiffs challenge the constitutionality of the 1933 amendments, particularly the second amendment covering section 7, in so far as it applies to them as creditors of the defendant at the time of the passage of the acts. It will be noted that the reorganization merely amended the existing charter and did not create a new Compaq.

It is my conclusion that the act in question in so far as it affects the plaintiffs, is unconstitutional in that it is a violation of the New Jersey constitution, paragraph 3, section 7, article 4, which provides that the legislature shall not pass any * * * ex post facto law, or law impairing the obligation of contracts, or a law depriving any part of any remedy for enforcing a contract which existed when the contract was made.

It is also unconstitutional as being in violation of the United States constitution, article 1, section 10, which provides: “No state shall * * *• pass any law * * * impairing the obligation of contracts.”

It seems to me sufficient in holding that these acts impair the obligation of existing contracts to refer to the following cases: Moore v. Splitdorf Electric Co., 114 N. J. Eq. 358; 168 Atl. Rep. 741; Baldwin v. Flagg, 43 N. J. L. 495; Vanderbilt v. Brunton Piano Co., 111 Id. 596; 169 Atl. Rep. 177.

In the case of Moore v. Splitdorf Electric Co., supra, Mr. Justice Perslde, speaking for the Court of Errors and Appeals, affirms the principle that a statute providing a method of reorganization for a failing corporation cannot require a creditor against his consent to1 accept securities in place of a share of the corporation’s assets.

It might be well to refer to the fact that in another state a statute similar to the one the constitutionality of which is here challenged, has been declared unconstitutional by the United States courts. Shams v. Nebraska (1931), 48 Fed. Rep. (2d ed.) 894.

It seems to me also that the statute is unconstitutional as being in violation of the fourteenth amendment of the United States constitution, section 1, which provides in part: “* * * nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The reason for this is that the statute requires only the determination of the corporation itself as to the propriety of the change in obligation to the creditor, and the consent of the commissioner of banking and insurance. This clearly deprives the plaintiffs of their property without due process of law. No judicial forum is permitted for the purpose of reviewing the fairness of the plan or the fairness of the way it is being carried out. They have no opportunity, before the plan is put into effect, of contesting or disputing claims of other creditors, but must take the stock and participating certificates in common with others who may not be entitled to them, or in an amount which may not be proper.

It has been claimed that this statute should be sustained under the police power and that it was a statute passed during an emergency. The statute in question is simply an amendment to the Trust Company act, and by its terms does not indicate that it is passed under any emergency. I do not therefore think that I may consider it in the guise of an emergency statute. Without any emergency provision, clearly no appeal could be made to1 sustain its validity as an exercise of the police power on the part of the legislature. The police power might to some extent be applied to the business of banking, but it has its limitations, and the means must have a reasonable relationship to the end. The trend of the decisions in both federal and state courts seems to be against any statute requiring a creditor to take a lesser amount for his debt as against his ratable share in the assets of his debtor.

That this statute cannot be sustained under the guise of an emergency statute, it seems only necessary to refer to the case of Vanderbilt v. Brunton Piano Co., supra, and to the same effect in so far as the court’s reasoning is concerned, to the Minnesota mortgage moratorium ease, Home Building and Loan Association v. Blaisdell, 54 Sup. Ct. 231; 78 L. Ed. 413.

The defendant in its answer sets up as a second defense what seems to be an allegation that the plaintiffs are barred by estoppel from maintaining this action, it being contended that they stood by without objection and allowed the Reconstruction Finance Corporation to advance the funds which were to be used in the rehabilitation of the defendant company and applied to the deposits of the creditors, including these plaintiffs.

There is no evidence that the plaintiffs ever notified the Reconstruction Finance Corporation of their objection to the plan. There is likewise no evidence to the effect that they took any stand or made any representation which might be classed as an inducement on the part of the plaintiffs toward the Reconstruction Finance Corporation’s advancing the money and purchasing the preferred stock. There can be found no evidence from the affidavits, nor is there any claim made, that the plaintiffs did anything to induce the Reconstruction Finance Corporation to make the advancement and purchase the stock.

It is my understanding with reference to the law of estoppel as applied to actions at law, that it must first appear that the plaintiffs, to be estopped, did some act which induced the person who is asserting the estoppel, to act, or that the plaintiffs stood by silently with knowledge, when they should have spoken.

It seems to me that there is no proof in the affidavits which would sustain either of these contentions. And the defense of estoppel must further fail because the defendant here is not the one to assert it. If there were any defense of estoppel, it would be a right of the Reconstruction Finance Corporation, and it is not a party to this suit.

The principle of equitable estoppel as recognized and enforced by courts of law is clearly stated in the case of Central Railroad Co. v. MacCartney, 68 N. J. L. 165 (at pp. 175, 176); 53 Atl. Rep. 575.

It is further contended on behalf of the defendant that the form of the remedy adopted by the plaintiffs is not available to them because this bank was insolvent before the reorganization was effected, and the money which has become available to pay to the depositors was obtained through this reorganization, and that at most, the plaintiffs should have only their ratable portion of the assets which the defendant had at the time the bank was closed.

This suit is against the original debtor. The reorganization is not one where title to1 assets was transferred to a new corporate entity and that corporate entity is sought to be held. The reorganization, as I have called it, in so far as these plaintiffs are concerned, is effected through the consent of a portion of the other creditors, stockholders, the commissioner of banking and insurance, and the issuing of additional preferred stock to raise the money with which to continue business, and participating certificates in certain assets of the defendant which were withdrawn from the other assets of the defendant. A reorganization along those lines does not change the corporate entity of the defendant or affect its liability at law to answer to the plaintiffs.

The plaintiffs have also asserted a claim that trust funds are specifically exempt from the restriction of payment of only one-half in cash following the reorganization; in other words that it is contemplated in the reorganization that such funds are to be paid in full by the defendant. The provision referred to does not apply to a trust such as the plaintiffs’. If the trust in question were one in which' the defendant was the trustee, the case might be different. But the relationship in this case between the defendant and the plaintiffs is that of debtor and creditor.

The application to strike out the answer as being frivolous will be granted and the plaintiffs may enter summary judgment for the balance of their deposit with interest.


source: Caselaw Access Project

author: Pee Curiam.

license: Public Domain

text:
    JEANETTE M. RUDENSEY, ADMINISTRATRIX OF THE ESTATE OF MAX L. RUDENSEY, PLAINTIFF-APPELLANT, v. ALFRED HOFFMAN, DEFENDANT-RESPONDENT.
    Argued October 2, 1934
    Decided March 12, 1935.
    Before Justices Lloyd, Case and Donges.
    For the plaintiff-appellant, Philip Schotland.

    For the defendant-respondent, Julius B. Cohen.

   Pee Curiam.

The judge of the First District Court of the city of Newark, sitting without a jury, gave judgment in favor of the defendant in an action wherein plaintiff sought to recover from the defendant on a check of $194 given by the defendant to the plaintiff. Plaintiff appeals and argues two points grounded in the specification of determinations, namely, that there was no' evidence to support the court’s finding and that the court erred in an evidence ruling. A third point, listed as the second in the brief, appears to be without foundation in the specification of determinations.

Defendant had purchased, by contract with plaintiff’s decedent, a newspaper route in the town of Montclair. By the terms of the contract Budensev was obligated to pay all unpaid bills. There was legal evidence tending to support a factual finding that the defendant, in order to secure continued delivery of the newspaper publications, had been obliged to pay and did pay one of these bills in the amount of $194; that plaintiff at the settlement between the parties to this suit denied the existence of the debt whereupon defendant signed and delivered to the plaintiff the check in question, post-dated, upon the condition that before the date so nominated plaintiff would demonstrate that the bill had not been owed, that plaintiff did not comply with that condition but that on the contrary the debt had in truth been owing, and that defendant consequently stopped payment of the check in accordance with the understanding had at the time o'f delivery. There was therein a basis for the court’s finding. Beyond that we need not go. This court will not review the findings of the District Court upon questions of fact beyond inquiring whether there was any legal evidence upon which the finding might be based. Sheehan v. Menkes, 8 N. J. Mis. R. 867; 152 Atl. Rep. 326.

It is further said that certain hearsay evidence was admitted over objection, and this seems to be so; but the error, if such it was, was not harmful. The objectionable testimony was that the witness under examination, defendant’s son, who handled the transaction, had been informed by the creditor company that the amount due was $194. The gentlemen in charge of the bookkeeping department of the company took the stand and testified of knowledge to the same fact.

Judgment affirmed.


author: Case, J.

text:
    JOHN T. DICKINSON ET AL., PROSECUTORS, v. THE INHABITANTS OF THE CITY OF PLAINFIELD ET AL., RESPONDENTS.
    Decided February 5, 1935.

      Before Justice Case, pursuant to the statute.
    Bor the prosecutors, Andrew V. McDonough.

    Bor the respondents, Spaulding Frazer.

   Case, J.

The writ brings up an order of the board of adjustment of the city of Plainfield revoking a permit granted by the building inspector of that city. The record as placed before me is not technically perfect, but .1 shall endeavor to determine the issue as I understand it. The prosecutors include the owners and the mortgagee of the building involved, as well as the tenants under a lease hereinafter mentioned. All of these interests hinge upon the rights of the owners whom I shall refer to as the prosecutors.

In 1926 prosecutors acquired a property at the corner of Park avenue and Seventh street in the city of Plainfield and constructed thereon a two-story structure with frontages on Park avenue and on Seventh street. The Park avenue frontage was divided between four stores and, situated at the immediate corner, a large room used for the display and sale of Packard automobiles. There was no automobile entrance on that frontage. At the rear, opening on Seventh street but under the same roof, was a garage and service station fitted to receive cars from Seventh street either for servicing, repairs or storage. There was a doorway between this part of the building and the automobile salesroom of sufficient size to permit automobiles to be taken to and from the floor of the salesroom. The entire second fio'or, accessible from the garage, was devoted to various automobile uses, but there was nothing in the rather beautiful Park avenue facade to indicate that the building was used for other than the mentioned sales purposes. The use of the service station has been continuous. The prosecutors lost the automobile agency, and during more recent years the corner salesroom has been used for other commercial purposes. One June 4th, 1934, the prosecutors entered with a prospective tenant into a ten-year lease based upon the assumption that they would turn the Park avenue frontage into a modern service station. On the same day they had sought and obtained a permit from the building inspector of the city of Plainfield to make the necessary alterations in the building and had also applied for and obtained a permit for gasoline tanks and gasoline pumps under the volatile liquid ordinance. The work was contracted for on June 9th and was begun forthwith. There seems to have' been nothing to bring to the attention of other interested property owners that a service station was to be constructed and maintained on the Park avenue frontage until Saturday, June 16th, 1934, when a sign was placed upon the building indicating that after alterations were completed the premises would be put to that use by the American Garage Company. On the following Monday a group of neighboring owners appeared before the Plainfield Council to voice their protest. The board of adjustment met two days later to consider the matter, a petition of appeal having meanwhile been filed with the secretary of that board. The board determined that the permit signed by the building inspector was to set up a non-conforming use where a conforming use had theretofore existed, that that officer was without power to grant such a permit and that his action should be set aside. The board further determined, fo'r reasons given, to refuse such a permit. Proceedings have been prosecuted diligently from that time forward.

The question is whether the building inspector’s permit was properly revoked and a permit by the board of adjustment lawfully denied.

It is conceded that the building is in a business zone and that the prosecutors had, before and at the time of the passage of the present zoning ordinance, October 3d, 1933, set np and maintained a non-conforming use as to a service station on the Seventh street frontage to the extent above described.

The zoning ordinance provided in section 3: “In a business zone no' building or premises shall be used and no building shall be erected or altered which is arranged, intended or designed to be used for any of the following specified trades, industries or uses: * * * 13. Motor vehicle service station except as permitted in section 13.” Section 13 provides for the appointment of a board of adjustment, the power to the board in appropriate cases and subject to appropriate conditions and safeguards to make special exceptions to the terms of the ordinance in harmony with the general purpose and intent and in accordance with the general or specific rules therein contained. That section further provided that appeals may be taken to the' board of adjustment by any person aggrieved in the premises by the act of a public officer. The prosecutors undeniably planned to alter their building with the intention of using it for, and so that it would be designed to be usable as, a motor vehicle service station at the Park avenue frontage. It is plain that unless they had some right that could stand up against the provisions of the ordinance the power to grant permission to make such an alteration lay with the board of adjustment and not with the building inspector.

It is first contended by the prosecutors that they had sucli a right in the earlier non-conforming use above mentioned. Zoning Act, Pamph. L. 1928, ch. 274, § 11. In other words, they argue that uses which were thoroughly hidden from Park avenue and which had entrance and exit solely on Seventh street may be extended, against the ordinance provision, to justify the tearing out of the Park avenue walls, up to the second story, installing the usual service station equipment of oil and gas tanks and the like and converting adjacent portions of the Park avenue sidewalk into entrance and exit driveways; and in support of their argument they rely chiefly upon Frank J. Burkin Lumber Co. v. Fitzsimmons, 106 N. J. L. 183; 147 Atl. Rep. 555; Lamb v. McKee, 10 N. J. Mis. R. 649; 160 Atl. Rep. 563; Edwards v. Derrickson, 28 N. J. L. 39; Provident Institution for Savings v. Castles, 11 N. J. Mis. R. 773; 168 Atl. Rep. 169. Those decisions do not, in my opinion, reach the facts of the present case. In the Durkin Lumber Company case, for instance, the property was applied to' no use except that of the prohibited business, and that being so, it was held, the use being forbidden by the zoning ordinance, that it was a non-conforming use which, having been in existence at the time the ordinance became effective, could lawfully be continued. At the time of the passage of the Plainfield zoning ordinance the portion of the premises now sought to' be devoted to a forbidden use completely conformed to the requirements of the ordinance. Material and distinguishing facts of the present case are that the desired use entails sidewalk and curb changes, some vehicular interference with pedestrians in the use of the sidewalk, disruption of curb parking at the locus, and a certain breach in the extension of normal retail business; also that the established non-conforming use affected in those respects only Seventh street, and that the physical aspect of Seventh street and the functions of that thoroughfare differ from those of Park avenue. Even if we assume that prosecutors’ property is so' integrated as to form a unit in the development and expansion of the nonconforming use, nevertheless that use must, I think, so far as street access is concerned, be regarded as a Seventh street-enterprise. The distinction is not arbitrary. The right of the prosecutors to continue, or indeed to expand, the business of servicing and garaging automobiles through the facilities of a Seventh street entrance does not entitle them, as of right, and against.the ordinance provision, to rip out the structure on the Park avenue frontage and there set up a use to which that location has never been put. Prosecutors do not dispute the propriety of the ordinance provision; they simply try to put themselves outside its purview. I think that to the extent mentioned they are subject to the ordinance, and I conclude, therefore, that no lawful permit could be had for so altering the building structure as to fit it for a motor vehicle service station on the Park avenue frontage without affirmative action by the board of adjustment.

It is next said by the prosecutors that they acquired vested rights when the building inspector’s permit had been issued and acted upon and that it is not within the power of the municipality to limit the rights so acquired; citing Freeman v. Hague, 106 N. J. L. 137; 147 Atl. Rep. 553. That decision bore upon a building permit granted, before the passage of the Zoning act (Pamph. L. 1928, ch. 274), by a duly qualified municipal body. In the present case the permit was issued by an officer who assumed, but did not have, the requisite authority. I do not understand it to be the law that a property owner may obtain from an unauthorized official a permit to do a forbidden act and then, by proceeding quickly with the work, forestall consideration by the lawfully designated tribunal.

Prosecutors finally contend that the document filed with the board and purporting to be an appeal is not an appeal of the type provided in the Zoning act, supra, and that the board is therefore without jurisdiction, first, because the appeal is from a permit to erect a building when in fact the permit was not to erect but to make alterations, repairs and additions to a building already erected and, second, that the appeal contemplated in section 9 of the statute was required by the act to be taken within a reasonable time. T find that the appeal manifested fully whát it related to and that it was taken within a reasonable time.

It will be observed that the points argued by prosecutors are made to rest upon—and in this numerical order—(1) a right said to have been acquired by an earlier, non-conforming use, (2) a right said to have vested on the issuing of the building inspector’s permit and the act of the prosecutors in proceeding with the work in dependence thereon, and (3) a faulty form of appeal. The form and substance of the ordinance are not attacked. Arbitrary and unreasonable application of the ordinance provision as against neighborhood conditions is not charged.

The action of the adjustment board in setting aside the inspector’s permit and in denying permission on its own authority was valid. The writ is discharged, with costs.

Two things should be said in addendum:

The writ seeks to review an order. I find none; but I have assumed the existence of an order in line with the opinion written on behalf of the board of adjustment.

On the question of conforming or non-conforming use 1 have reached my conclusions solely on the changed use of the Park avenue frontage. The ease does not come before me on the issue extending the non-conforming use along Seventh street and I pass no opinion thereon. After the action of the board of adjustment the prosecutors, under authority of a restraint order by the Court of Chancery, completed the structural changes in the building and are now operating the business as planned. Under the circumstances I think that the present determination should be without prejudice to such further proceedings as prosecutors may be advised are proper to frame and try out the issue of the changes in the Seventh street frontage.


author: Pee Cueiam.

text:
    JOSEPH CASALE, Jr., BY HIS NEXT FRIEND, JOSEPH CASALE, Sr., AND JOSEPH CASALE, RESPONDENT, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, APPELLANT.
    Submitted October term, 1934
    Decided March 25, 1935.
    Before Justices Lloyd, Case and Donges.

      For the appellant, Henry H. Fryling.

    For the respondents, Leon W. Eapp.

   Pee Cueiam.

In this case there is a single specification of determinations with which the appellant is dissatisfied and it is that the District Court erred in giving judgments in favor of the plaintiffs whereas it should have given judgments in favor of the defendant and against the plaintiffs.

There is a motion to dismiss the ease on the ground, among others, that the appellant has failed to file a proper specification of errors. Our books are replete with cases holding that such a specification is inadequate to bring before this court any ruling in the trial court, the latest, Greenblatt Coal Co. v. Jacobs, 12 N. J. Mis. R. 176, citing Cohn v. Bank, 109 N. J. L. 449.

The appeal having been perfected but not adequately presented on the pleadings, j the judgment is affirmed.


author: Per Curiam.

text:
    JOHN A. MAY, PLAINTIFF-RESPONDENT, v. HOSSEY VAN BENSCHOTEN, DEFENDANT-APPELLANT.
    Submitted January 25, 1935
    Decided March 28, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    Por the appellant, John J. Breslin, Jr.

    Por the respondent, J. Chester Massinger.

   Per Curiam.

This is defendant’s appeal from a judgment rendered on a verdict directed for the plaintiff. The suit was for twenty-one months’ rent at the rate of $50 per month for a period beginning with the month of May, 1932, and including the month of January, 1934. The original letting was oral and from month to month. In May, 1932, the tenancy having then run for about five years, the defendant paid up a large amount of arrears, and in the present suit claimed that when that payment was made there had been a valid surrender terminating the tenancy. This was the issue of fact tried, and was the only issue of fact that was in dispute at the trial. There was no surrender in writing as contemplated by section 2 of the Statute of Prauds. Comp. Stat., p. 2610. The claim was of a surrender by operation of law. As to this the parties were the only witnesses. Defendant’s testimony most favorable to him was to the effect that when paying up the arrears late in April, 1932, he told plaintiff that from May 1 he would have to1 get the rent from the other party (one Ackerman, a subtenant of defendant), that defendant was through with the premises. “Q. Did he agree to that? A. Yes. Q. Did you have another conversation with him? A. At the time I paid him I told him I was through. By the court—What did he say to that? A. Well, he said ‘you should have a place somewhere.’ I said, ‘I can’t afford it.’ ”

Assuming this to indicate a “concurrence of the minds of the parties in the common intent of relinquishing the relation of landlord and tenant” (Miller v. Dennis, 68 N. J. L. 320, 323; 53 Atl. Rep. 394), it remained to show that the intent had been “executed by acts which are tantamount to a stipulation to put an end thereto.” Ibid. Delivery and acceptance of possession seem essential, however, before there can be said to have been an execution of the surrender. No change of physical possession is shown in this case. No keys were delivered; the defendant failed to show even that he had vacated the premises completely. He claimed that Ackerman, the subtenant, had become responsible in his place, but Ackerman, in rebuttal, testified that he had a running account with defendant in which he had credited defendant with $25 a month, the agreed rent of the subtenancy, from May 1, 1932, to December, 1933, and defendant did not contradict this. In short, we fail on a careful examination of the evidence to find sufficient to make a complete case to go to the jury on the issue of surrender. The intent to accept a proffered surrender must be reasonably clear and unequivocal, or the logical and necessary result of the landlord’s conduct. Whitcomb v. Brant, 90 N. J. L. 245, 247; 100 Atl. Rep. 175. No such result can be deduced from the evidence here.

It is also alleged for error that the trial court denied an application for a continuance because of an alleged absent witness. It is fundamental that the matter is one of discretion in the trial court, and that its ruling will not be reversed, except where it very clearly appears that the discretion has been erroneously exercised. Heinz v. Atlantic Stages, 113 N. J. L. 321; 174 Atl. Rep. 682. We see no reason for interfering in the matter. The “absent witness” was defendant’s father. There had been a previous trial with a disagreement of the jury. The father had not been sworn at the first trial-. Counsel stated to' the court, “I did not call him, because I did not think it was necessary. His proof would be corroboration of the statement * * * made by the plaintiff to the defendant.”

There was nothing in the paper submitted as an affidavit to indicate what the father’s testimony would be. Mere corroboration of defendant’s testimony would be valueless on a motion to direct for plaintiff, as on such motion defendant’s evidence is taken as true.

The leading case, if not -the only one, on continuance because of an absent witness is the old case of Ogden v. Gibbons, 5 N. J. L. 519, 853*. The practice there indicated seems to be that on an “application for a first postponement” less particularity in stating the character of the expected testimony is required, than on a later application. But that was not a case of second trial after a disagreement, as here, where the same judge was presiding and reasonably made the point that the witness had not been called at the first trial. The paper submitted was a physician’s certificate apparently swotn to before a notary public of Rockland county, Hew York, but the jurat attached was not as required by our statute (Comp. Stat., p. 3774, pl. 34) or practice. Ho venue appears on it, and there is nothing to show where it was sworn to. The judge was certainly not required to consider such an “affidavit,” assuming for present purposes his power to do so'. See Gaddis v. Durashy, 13 N. J. L. 324; Perkins v. Collins, 3 N. J. Eq. 482.

We can discern no error in the refusal to grant a continuance, and none in the direction of a verdict. These are the two points argued. The judgment is affirmed, with costs.


author: Lloyd, J.

text:
    CHARLES H. THORNE, RESPONDENT, v. STATE MUTUAL LIFE ASSURANCE COMPANY, APPELLANT.
    Submitted October term, 1934
    Decided March 25, 1935.
    Before Justices Lloyd, Case and Donges.
    Dor the respondent, Harold W. Borden.

    Dor the appellant, McCarter •& English (Herbert B. Baer, of counsel).
   Lloyd, J.

The solution of this case involves the proper construction of the following provisions of a policy of insurance.

"If the insured while no premium is in default under this policy and disability agreement shall furnish due proof that, before reaching the age of sixty years, and prior to the expiration of this policy, because of accident or disease he has become totally and permanently disabled as hereinafter defined, and that such disability, or the cause thereof, was sustained or contracted after the date hereof, the company agrees as follows:

“(1) To waive the payment of all premiums becoming due under this policy and disability agreement after the commencement of such total disability and during its continuance.

“(2) To pay to the insured (or to the beneficiary of record if such disability is caused by insanity) a monthly income of 1 per cent, of the face amount of this said policy, exclusive of any paid up additions. Such payments shall begin as of the date of the commencement of such disability and shall continue monthly thereafter during the continuance of such total disability, until the expiration of the policy.

“Disability- shall be deemed to be total if the insured has become wholly, continuously and permanently unable to perform any work, mental or manual, or to engage in any occupation or business for compensation, remuneration or profit; and such total disability shall be presumed to be permanent when it is present and has existed continuously for not less than ninety consecutive days.”

The plaintiff below received an injury while playing football and was totally disabled thereby from May 5th, 1932, to August 15th, of the same year. On the latter date he returned to work and the disability ceased to be total or permanent. He brought an action and recovered a judgment based on a theory that the last paragraph of the quoted provisions definitely determined that the disability from which he had suffered was total and permanent because of the fact that it had existed for ninety consecutive days.

We do not agree with the result reached. It must be noted that this is not a temporary, but a total and permanent injury policy. The presumption arising from the continuance of the disability for a period of ninety consecutive days was rebuttable and the evidence that the disability ceased to be either total or permanent came from the plaintiff’s own testimony and deprives the presumption arising from the period of ninety days of disability of any weight.

The injury and its consequences were matters of fact. The presumption prima facie took the place of evidence. The condition of the policy is that the insured shall furnish due proof that he had become totally and permanently disabled and that this condition shall exist at the time the claim is presented. This he was unable to' do. On the contrary his disability was limited both in time and degree, and did not exist when the claim was presented to the company. This was established by the plaintiff himself when in presenting his claim against the company he disclosed that at that time he was not disabled. The purpose of the ninety days provision is obvious. It is in effect an agreement not that a temporary disability shall be absolutely deemed to be a permanent disability, but that for the purposes of a claim the insured shall not be held off indefinitely, but if he is at the time of the claim disabled and has then been so for ninety days immediately preceding, he shall for the purposes of payment of the annuity be deemed to be permanently disabled, but only of course so long as the disability lasts. If his evidence discloses that he was in fact not then permanently disabled then obviously no claim exists. Such is clearly the intention as is evident from the further provisions respecting the right of the insurer to terminate payments on recovery of the insured as set forth in section (2) of the policy.

The construction here given is that accorded to similar policies by the courts of Hew York in Mackenzie v. Equitable Life Assurance Society, 248 N. Y. Supp. 413; in Illinois, in Steffan v. Bankers Life Co., 267 Ill. App. 248, and in other states.

The result we reach is that the condition of payment being that the disability should be both total and permanent, and a condition existing at the time of claim, and the proofs clearly showing that it was not permanent and not existing when claim was made, it follows that no liability attached under the policy and that the judgment in favor of the plaintiff below was error.

It is therefore reversed.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. GEORGE BOLLES, PLAINTIFF IN ERROR.
    Submitted January 25, 1935
    Decided March 28, 1935.

      Before Brogan, Chief Justice, and Justices Parker and Bobine.
    Por the plaintiff in error, Leon M. Bardfeld.,
    Por the state, Thomas G. Tuso, prosecutor of the pleas.
   Per Curiam.

The case arises under chapter 436 of the laws of 1933 (Pamph. L.. pp. 1180 et seq.) being the act concerning alcoholic beverages. The indictment seems to be referable to section 48 relating to manufacture of alcoholic beverages without a license, &c., and section 50, which reads as follows:

“Any person who shall knowingly aid or abet another in the violation of this act shall be guilty of a misdemeanor punishable in the same manner as the violation aided or abetted.” (Page 1124.)

The indictment was in three counts; the first, charging the defendant Bolles with manufacturing, and the second, charging him with the possession of certain materials and machinery for the manufacture of alcoholic beverages, with intent, &c., were abandoned by the state, and the sole reliance was on the third count for abetting another person whose name was unknown to the grand jury in the manufacture of alcoholic beverages, in violation of the statute, &c.

The case is submitted on briefs and, although there were twelve assignments of error and thirteen specifications of causes for reversal under section 136 of the Criminal Procedure act, only three are presented in the brief. The first is that the trial court refused to withdraw a juror and declare a mistrial at the opening because of certain remarks made by the prosecutor in his said opening.

The second and third, which are argued together, are based on the tenth and eleventh assignments of error and the eleventh and twelfth causes for reversal which are identical and are (a) because the verdict of the jury is against the weight of the evidence, and (b) there was no evidence to support the verdict.

The first of these is cognizable only under section 136. The second is not cognizable either under section 136 or on strict writ of error, because it does not point to any ruling of the trial court. There were motions to direct an acquittal both when the state rested and at the conclusion of the case, which motions were denied by the court and exception entered, but neither of these rulings is now challenged in the brief and therefore they require no consideration.

As to the refusal to withdraw a juror it will be necessary to go to some extent into the facts.

The defendant was the owner of a farm where he lived; and at a short distance from his house was his barn. This he used in part himself for farm purposes and part of it he had rented out, about a month previous to a raid by the county officials, to a man whom he had never known before, whom he had not seen since he had rented the portion of the barn to him, allegedly for storage purposes, who paid him $20 for the first month’s rent and then seems to have disappeared from the scene. The lease was not in writing. About a month afterwards the public authorities of Cumberland county, on notification from the prosecutor’s office, raided the barn and found installed there what appeared to be all the components of a still with the exception of what was called in the evidence the “column or dephlegm ator,” which appears to have been the essential appliance for the separation of unnecessary water from the alcohol They found no grain, mash or similar basis of distillation, but the presence of ashes denoted that the furnace had been used not long before. Several of the state’s witnesses testified distinctly to a smell of alcohol in and around the place. The defendant generally denied any knowledge of what was going on in his barn and took the position that he had simply rented it innocently for storage purposes and had paid no attention as to what was done there. The various articles found in the barn were seized and taken to the county seat where they were inspected by the jury during the course of the trial.

In his opening the prosecutor said in part: “At the time the officers went—I don't know who gave them the information, I can't tell-—but as the result of some tip-off, the finished products were done away with. When the officers arrived, they found all these things which yon will see-,” &e.

The motion to withdraw a juror was predicated upon the prosecutor's remarks about the tip-off. The court denied the motion, saying: “I instruct the jury that the case will be presented and tried solely on the evidence that is submitted here in court, and not upon any opinion that counsel on either side may express. I don't think that the remark can possibly harm your client, particularly in view of the instructions which I have now given the jury. I deny your motion.”

We find no harmful error in the refusal of the court to withdraw a juror. In the first place, it was discretionary; and in cases of that kind the only question that can arise is whether the discretion was abused. We think that it was not. The rule laid down by a considerable line of cases in this state is, in effect, that where one of the opposing counsel goes beyond the limit justified by the evidence, the court is not in general required to break up the trial and start over again, but it is sufficient for the judge to instruct the jury in definite terms that they are to decide the case on the evidence alone and not be influenced by unwarranted statements of counsel. Furthermore, it is not so clear that the statement was unwarranted. True, the question of a tip-off was decidedly a matter of inference; but if the jury were entitled to find from the facts that everything appropriate to a still was on the premises at the time of the raid with the exception of the column, and that that was essential to the making of alcoholic product, and the existence of such manufacture was fairly indicated by the smell to1 which the officers testified, it may well have been inferred that the column had been hurriedly removed as being the one thing specifically characteristic of a still and of nothing else. However, it is sufficient to say, so far as relates to the refusal of the court to declare a mistrial, that, in our judgment, the discretion of the court was not abused in this regard.

The only other point, in view of what has already been said, is whether the verdict was against the weight of evidence. As to the fact of the barn having been used for the manufacture of alcoholic liquor contrary to the act, there was no evidence to rebut the evidence for the state of the existence of a complete alcoholic making plant with the exception of the column feature and the material plus the ashes, the fuel (coke), a large number of five-gallon cans, and the smell of alcohol already adverted to. The jury, as we have said, were therefore entitled to find that the manufacture of alcoholic beverages had been going on.

The remaining question was whether the defendant had abetted in that manufacture. However, this particular phase of the case is not argued at all in the brief. The whole argument on weight of evidence seems to go to the proposition that there was no sufficient proof of the manufacture; and consequently, as the other phase of the complicity of the defendant in that manufacture is not argued, it needs no' discussion here.

The judgment will be affirmed.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    ARTHUR RIEGELHAUPT, SAMUEL BLUM AND JOSEPH BLUM, CO-PARTNERS TRADING AS BLUM BROS. & RIEGELHAUPT, PLAINTIFFS, v. MICHELE RUSSO AND NUNZIO CIRIELLO, INDIVIDUALLY AND AS CO-PARTNERS, AND JAMES CIRIELLO, DEFENDANTS.
    Decided March 28, 1935.
    Por the plaintiffs, David L. Malta.

    Por the city of Bayonne and the board of commissioners of said "city, Alfred Brenner.

   Brown, C. C. J.

This matter is before the court on the plaintiff’s rule to show cause addressed to the city of Bayonne and the board of commissioners of the city of Bayonne why said parties should not be required to turn over to the sheriff of Hudson county the sum of $500 levied upon toward the payment of a judgment obtained by the plaintiffs against the defendant Busso. The matter is presented to the court on an agreed statement of facts entered into between the parties. On the 6th day of June, 1934, the plaintiffs recovered a judgment against the defendant Busso for the sum of $819.48. Execution was issued on the 8th day of June, 1934. On June 22d, 1934, Busso made application for a liquor license to the city of Bayonne and the application was accompanied by a payment of $500 as required by law. On June 26th, 1934, the sheriff attempted to make a levy on the $500 in possession of the city of Bayonne claiming the same to be the property of Eusso. The city of Bayonne contends that from the time the $500 was paid it became the property of the city subject to a statutory refund of part of the sum if the license was not granted. Eusso’s application for a liquor license was granted by the city of Bayonne on the 3d day of July, 1934. Pamph. L. 1934, ch. 194, § 1, 4, amending Pamph. L. 1933, ch. 436, § 22, as amended by Pamph. L. 1934, ch. 85, § 18, provides:

“A photostatic copy of all federal licenses, permits and/or stamps necessary to the lawful conduct of the business for which a state license is sought and which relate to alcoholic beverages, or other evidence in lieu thereof satisfactory to the commissioner, must accompany the license application, together with a deposit of the full amount of the required license fee, which deposit to the extent of ninety per centum thereof shall be returned to the applicant by the commissioner or other issuing authority if the application is denied and the remaining ten per centum shall constitute an investigation foe and be disposed of as hereinafter provided.”

It is a generally accepted proposition of law that a garnishee cannot be held liable unless it be shown that he is indebted to the defendant at the time of the commencement of the garnishee proceedings. This rule can be applied in this case. At the time levy was made the city of Bayonne was not indebted to the defendant. A debt which is conditional or contingent is not the subject of a levy until the condition is fulfilled and the debt becomes absolute. The condition or contingency did not take place or was not performed, in the case at bar, so as to make the debt absolute from the city to the defendant. Another principle of law that precludes a recovery against the city is that a levying creditor acquires no greater right in the property levied upon than the defendant had at the time of the levy and where defendant has not acquired such interest in or power over it as to permit him to dispose of it adversely to others it cannot be levied upon as a debt. A liberal and reasonable construction of the statute hereinbefore cited is that the money paid with the filing of an application, while designated as a deposit, was from the very time of its payment to be used to satisfy the charge for the license fee and that ninety per cent, of it could only be refunded in case the license was not granted; that ten per cent, of the amount of the deposit became the absolute property of the city of Bayonne upon its payment and that the city of Bayonne was only obliged to refund the remaining ninety per cent, in case the license was not granted. There was not such a right or credit in said moneys belonging to the judgment debtor as would give a judgment creditor a lien over the property right of the city of Bayonne in the fund. The only right which the defendant debtor had in the license fee was the right of a return of ninety per cent, of the money upon the denial of the application.

There was a certain other refund provided for by the Alcoholic Beverage act that was to be made upon a surrender of the license after its issuance and before its expiration. Pamph. L. 1934, eh. 85, § 24, amending Pamph. L. 1933, ch. 436, § 28; 1934 Stat. Serv., § 100-339. Evidentty the Alcoholic Beverage act contemplates the refund of license moneys on conditions existing before as well as after the issuance of the license. We are concerned about the right of refund under the condition existing before the granting of a license. The plaintiff judgment creditor can only levy on those rights and credits which the defendant in execution possessed at the time the levy was made. The defendant at the time the levy was made had a property right in ninety per cent, of the fund deposited provided the license was not granted. This condition never occurred; consequently, the defendant had no property right in the $500 which could be taken by a judgment creditor under the Execution act.

The rule to show cause will be discharged.


author: Hartshorne, C. C. J.

text:
    Essex County Orphans Court.
    IN THE MATTER OF THE ESTATE OF JOSEPH DeCONZA, DECEASED.
    Decided March 18, 1935.
    For Karin Edstrom DeConza, petitioner for letters of administration, Egner & Beatty (by Lloyd Beatty).

    For Teresa Leone, caveatrix, Anthony D. Appice (by Peter 8. Perlanti).

   Hartshorne, C. C. J.

This is a contest as to who is entitled to administration of the estate of the decedent, Joseph DeConza, the contestants being Karin Edstrom DeConza, who went through a marriage ceremony with the decedent, six days before he died, in the Mountainside Hospital, Montclair, and decedent’s sister, who claims that such marriage is void, because of decedent’s lack of mental capacity to contract a marriage. The .specific issue is whether or not evidence as to such incapacity is admissible here, the objection being that same amounts to a collateral attack on the marriage, whereas such marriage must be considered valid, unless and until set aside by direct attack in equity.

This objection is both right and wrong, the distinction depending upon whether or not the marriage is totally void or merely voidable. If void, no marriage exists, and any court, in any proceeding, where the issue arises, can so find. 76 A. L. R. 771 note. On the other hand, if the marriage is voidable, such may be terminated only by death or the decree of a competent tribunal, to wit, equity in New Jersey. Ysern v. Horter, 94 N. J. Eq. 135; Re DeConza, 13 N. J. Mis. R. 41. On general principles, at common law, since marriage is a contract, and there must be a meeting of the minds to contract, a person who is without mentality cannot contract; there is no contract and no marriage, or, in other words, the marriage is absolutely void. Such is the weight of authority, though there are certain jurisdictions to the contrary. 38 Corpus Juris, "Marriage” § 14c p. 1285. Under such circumstances, any court may determine such question in any proceeding, as seen above.

But the institution of marriage is peculiarly a social compact,. and, hence, subject to the social control of the public and the state. Its existence and incidents at common law may, therefore, be altered by the state. This New Jersey has done, and, with specific regard to marriages, where there was “incapacity to consent.” Pamph. L. 1931, ch. 311, p. 783; 1931 Stat. Serv., § 62-1. By such act, the legislature has provided for annulment proceedings in equity, in such a' situation. In such act the legislature has further provided that any such decree “shall not render illegitimate the issue of any marriage so dissolved,” with a specific exception as to marriages where there was another wife or husband living. In other words, with that exception, it was the legislative intention that the marriages should be considered valid until nullified by decree, and that even when so nullified, the marriage should continue valid as far as the issue were concerned.

Hence, the legislature of this state has expressed the public policy of this state to be contrary to the common law, to wit, that a formal marriage, even where one of the parties is, in fact, incapable mentally of consenting, is voidable, and not void. New Jersey, thus, is in accord with a series of other states which have, by statute, made a marriage under such circumstances voidable only. See 38 C. J., “Marriage “ § 14c.

Applying the above principles, therefore, this court cannot entertain evidence as to the mental incapacity of the decedent at the time of his marriage, and administration will be granted to Karin Edst'rom DeConza.


text:
    BERNARD NEILLEY, PROSECUTOR, v. CITY OF PASSAIC ET AL., DEFENDANTS. FRANK ELMO, PROSECUTOR, v. CITY OF PASSAIC ET AL., DEFENDANTS.
    Submitted January 25, 1935
    Decided April 4, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    For the prosecutors, Edward A. Levy.

    For the defendants, Thomas E. Duffy.

   Per Curiam.

These two parallel writs of certiorari each bring up a resolution of the board of commissioners of Passaic, dated June 9th, 1931, and an ordinance of the same board, introduced June 9th, 1931, and finally passed two weeks later. The writs were allowed on December 5th, 1933. bio explanation of the delay of two and one-half years in applying for the writs, and over a year in bringing them on for argument, is offered or is otherwise apparent.

The prosecutors had been acting as “assistant superintendents of weights and measures” for the city of Passaic, since 1925. The resolution attacked purports to abolish the offices (three in number) in the interest of economy. The ordinance is of like purport. Both prosecutors claim to be protected by a tenure of office statute: one, in addition, as a veteran. They further claim that the offices were created by the Weights and Measures act of 1911 (Pamph. L., pp. 414, 416; Cum. Supp. Comp. Stat. 1924—at p. 3843), and therefore could not be abolished by any municipal action. The principal answer made is that prosecutors were never appointed as prescribed in that act, and never, in consequence, held any office thereunder.

We think the writs should be dismissed because of the long delay. Such was the result in Glori v. Board of Police Commissioners, 72 N. J. L. 131; 60 Atl. Rep. 47, in certiorari, and in Taylor v. Board of Councilmen of City of Bayonne, 57 N. J. L. 376; 30 Atl. Rep. 431, in mandamus.

Apart from this, we think the prosecutors have no standing under the act of 1911. The scheme of that act is as follows (pages 416 et seq.) :

(Sec. 10). 1. State superintendent, appointed by governor.

2. County superintendents, appointed by the governing body of the county.

3. Municipal superintendents (when authorized by ordinance), compulsory in cities over sixty thousand, permissory in others. To be designated by the municipal body.

4. Assistant state superintendents (section 11) appointed by state superintendent.

5. Assistant county superintendents, appointed by county superintendent upon resolution of county governing body.

6. Assistant municipal superintendents, appointed by municipal superintendents on resolution of the municipal body. The two prosecutors seem to be in this class, but were never appointed by any municipal superintendent, nor does any resolution appear requesting such superintendent to make any appointment. What did happen was that on May 19th, 1925, the director of revenue and finance notified the board of the appointment by him of the two prosecutors, and one other, as assistant superintendents of weights and measures, and a secretary to the superintendent “pursuant to chapter 201, laws of 1911, with all amendments thereof and supplements thereto.” There seems to have been a similar appointment by the director of public affairs, in June, 1927, concurred in by the board. Eb! statutory authority for any such appointment is invoked by the prosecutors, and defendants say there is none. In 1920 there were two amendments, chapters 209 and 210, pages 404, 406. By chapter 209, section 10 was amended by striking out the latter part, not here material, and adding a tenure of office clause covering “all persons appointed as in this act provided.” Chapter 210 amends a tenure of- office supplement of 1912 (Pamph. L., p. 168), by adding to those protected by the tenure of office clause “the secretaries and assistant superintendents appointed by the respective governing bodies or by the respective county or municipal superintendents,” &c., “shall hold their office during good behavior * *

This presupposes the holding of an office. The prosecutors held no office. They could not be appointed by the municipality under the statute, but only by the municipal superintendent when thereto requested by resolution. The municipality had no authority to set up any such office to be filled by it. At best prosecutors held an employment or perhaps a position under control of the municipality. That body by resolution and ordinance undertook to abolish these so-called offices, ostensibly for economy. We think that it had full power so to do; indeed, if they were illegal, that was its duty. The prosecutors, as usual, attack the good faith of this action, but we see no evidence of bad faith, particularly as for over three years no others have been employed in the stead of the prosecutors.

The writs will be dismissed.


text:
    JOSEPH FALEY, PETITIONER-DEFENDANT, v. TRENTON MALLEABLE IRON COMPANY, PROSECUTOR-RESPONDENT.
    Submitted January 25, 1935
    Decided April 4, 1935.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    Por the prosecutor, Henry M. Hartmann. ■

    Por the defendant, William Reich.

   Per Curiam.

This is a certiorari to the Mercer Common Pleas, which affirmed an award of the workmen’s compensation bureau in favor of the petitioner Paley. The case is submitted on briefs, and the grounds argued are (1) that the deputy commissioner refused to dismiss the petition for lack of proof of an accident; (2) (a) that he refused to give consideration to certain X-ray photographs duly admitted in evidence, (b) or to a previous accident suffered by the petitioner; (3) that the Common Pleas on appeal erroneously required the employer to pay the cost of a stenographic transcript for the use of the petitioner; (4) that the proofs do not furnish a rational, basis for the judgment; which seems to' be tantamount to saying that the evidence does not support the finding.

The date of the alleged accident was August 9th, 1932. Prom the commissioner’s determination it appears that there was previously either an agreement or an award of temporary disability plus three per cent, total disability for fifteen weeks. On June 27th, 1933, the formal petition was filed herein, the employer answered in due course, and the matter was tried before the deputy commissioner, who found on the testimony before him, that “petitioner must have had an arthritic condition of the back prior to the accident of August 9th, 1932,” and that on that day he sustained an injury to his back while at work. The disability was fixed at thirty per cent, for one hundred and thirty-five weeks.

There was a petition by the employer to reopen this award, for several reasons not necessary now to reproduce in full. This was denied; and on appeal to the Common Pleas the award was affirmed.

As to the first point, we think there was substantial proof of an accident in the sense intended by the statute. In fact, the answer admitted this. Moreover, we have the prior award or agreement, whatever it was; and the evidence indicated a sudden breakdown while handling a heavy mould. The point seems altogether unsubstantial.

Point 2 (a) is that certain X-ray photographs taken in 1930, two years before the accident, were not considered, and (b) that the prior accident in connection with which they were taken was not considered. It does appear, at the very end of the printed book, that on a motion to reopen the case, March 23d, 1934 (a petition of that date was filed April 10th) the commissioner said “as regards these X-rays, I disregarded them in my findings. I gave no consideration to a previous accident. This man was working up until the time of the second occurrence and from that time on he couldn’t work, and whether there was a pre-existing condition or not, it makes no difference.” Concluding, he said: “I fixed it on the facts proven of the second accident, and I said nothing about the first X-rays * * There had been some hint, apparently unsupported by proof, that the 1930 X-rays were not pictures of the petitioner, but it was not followed up, and fell by the wayside. The commissioner filed a written order denying the petition to reopen, repudiating any suggestion that he had given any attention to ex parte suggestions out of court that the X-rays were spurious, and added that "an understanding reading of the decision would show that consideration was given the respondent’s evidence concerning the original X-rays.” As to the second branch of point 2, the case makes it fairly clear that the award was based on the difference in disability between that existing after the second accident (1932) and that due to the 1930 accident, if persisting at the time of the second. The award is for "30 per cent, total disability as the- result of lighting up or rendering active this pre-existing arthritic condition.”

Point 3 challenges the award in the Pleas, of $127 as part of the costs, for stenographic transcript of the hearing before the bureau. We think the award was proper. The petitioner had prevailed: the employer appealed, and petitioner had to defend his award. The case, under the statute, is heard upon the stenographic transcript of the evidence before the commissioner. Pamph. L. 1932, ch. 25, p. 38; 1932 Stat. Serv. **236-60. The proposition is that the successful petitioner must pay for a state of the case when his award is appealed. To this we do not agree. The act just cited requires the transcript to be filed in the Colnmon Pleas, and provides that costs when awarded shall be taxed and allowed as for like services in the Common Pleas Courts. The Common Pleas Fees and Costs act of 1926 (Pamph. L., p. 395—at p. 403) provides that “a party to whom costs are awarded in an action, motion, or other proceeding, is entitled to include his necessary disbursements, as follows * * * the fees for taking depositions, as provided by law; * * * the legal fees paid for a certified copy of a deposition or other paper * * * recorded or filed in any public office, necessarily used or obtained for use * * * upon appeal * * *.”

We perceive adequate statutory authority for the award in question.

Point 4. Finally, that "the proofs did not furnish a rational basis for judgment.” We have examined them, and think that they do. Moreover, two independent courts have agreed in the same finding, on evidence deemed satisfactory, and we see no good reason to overrule them in this regard.

The judgment will be affirmed, with costs.


author: Per Cubiam.

text:
    MINNISINK OIL COMPANY, PROSECUTOR, v. LOTTIE A. MILLER, AND THE MORRIS COUNTY COURT OF COMMON PLEAS, RESPONDENTS.
    Submitted January 25, 1935
    Decided April 4, 1935.
    Before Bbogau, Chief Justice, and Justices Parkeb and Bodine.
    Por the prosecutor, Edward A. MarMey and Charles W. Broadhurst.

    Por the respondent, Frank C. Scerho.

   Per Cubiam.

This is a workmen’s compensation case. The only question raised relates to the evidence rule of res gestee. George B. Miller was employed at the defendant’s service station where there was a pit to' facilitate the greasing of automobiles. He had been working there under a car, and climbed out, holding his hand on the side Of his head, and saying, “I got a crack on the head.” This was excluded more than once, but finally remained in the testimony. The proof further showed that he became sick that night, vomited, was taken to the hospital, the trouble diagnosed as cerebral hemorrhage, he became unconscious and died on the third day afterwards. There was sufficient evidence, though disputed, to connect the cerebral hemorrhage with a blow on the head: the question was whether the statement of deceased about a “crack on the head” was competent to support a finding that there was in fact a blow on the head. This question is raised in both points made in the brief, in these words: “because the only testimony that the decedent sustained an accident was hearsay testimony of witnesses.”

The Common Pleas judge carefully considered this point, and held, on the authority of Murphy v. George Brown & Co., 91 N. J. L. 412; 103 Atl. Rep. 28, that the testimony was competent. In that holding we concur. It is further supported by the very recent decision by this court in Demeter v. Rosenberg, 114 N. J. L. 55; 175 Atl. Rep. 621. No other question is raised. The writ will accordingly be dismissed, with costs.


text:
    SARAH BLACKMAN, PLAINTIFF-RESPONDENT, v. JANSSEN DAIRY CORPORATION, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted January term, 1935
    Decided April 6, 1935.
    Before Justices Lloyd, Case and Donges.
    For the plaintiff-respondent, Fred Feinberg and Max Feinherg.

    For the defendant-appellant, Charles Stoclcdell Gray and Fveritt Rhinehart.

   The opinion of the court was delivered by

Case, J.

Plaintiff sued for personal injuries suffered from a fall said to have been caused by a condition of nuisance in the sidewalk at the front of the defendant’s premises. The judge, sitting without a jury, gave judgment to the plaintiff, and defendant appeals. The specification of determinations with which the appellant is dissatisfied includes the court’s refusal to nonsuit and to grant defendant’s motion for a judgment in its favor.

The brief state of the ease settled by the court does not enable us to distinguish with certainty between the recital of the evidence produced and the statement of the court’s findings thereon. Our understanding, however, is that the court returns to us as the proofs in the case “that the defendant was, on November 3d, 1932, the owner, in complete possession, of the premises at 261 Ocean avenue, Jersey City, and had acquired title and possession thereto on October 1st, 1930; that the condition complained of existed on the sidewalk at the time when the property was acquired by defendant; that the sidewalk was cement and near the curb line there was a round opening in the cement about twelve inches in diameter and the dirt therein was at least one inch below the level of the cement;” and we understand further that upon those proofs the court based its factual findings as follows: “I found as a factual question that this condition constituted a nuisance, and that it was not due to wear or tear, or action of the elements; that the defendant maintained and adopted this condition; that the plaintiff while walking on the sidewalk fell and injured herself by reason of this condition.” The foregoing is the sum total of the evidence and also of the findings thereon except that an award was given for the plaintiff and against the defendant for $150. It is further certified to us that there was a motion by defendant for nonsuit, followed by a refusal and an exception thereon; and that the defendant rested without proof, moved for a judgment in its favor as a matter of law upon specified grounds, was refused and took an exception.

The respondent undertakes to support the judgment upon the theory that the condition of the sidewalk constituted a nuisance, that the nuisance was due to the construction of the sidewalk and that the defendant maintained the nuisance and is therefore liable for the plaintiff’s injuries which were caused thereby, citing Braelow v. Klein, 100 N. J. L. 156; 125 Atl. Rep. 103; Monzolino v. Grossman, 111 N. J. L. 325; 168 Atl. Rep. 673, and Durant v. Palmer, 29 N. J. L. 544. We think that the proved facts do not bring the case within the purview of any of those decisions. They are not comparable to those of Durant v. Palmer, wherein there was an unprotected areaway leading to the house basement. The alleged nuisance in the instant case is neither found nor proved to have been a matter of construction and therefore is essentially different from the condition existing in Braelow v. Klein. In Monzolino v. Grossman the source of the trouble was an awning hung from an adjoining building. We think that the instant case falls rather within the classification of Ford v. Jersey Central Power and Light Co., 111 N. J. L. 112; 166. Atl. Rep. 490, and Savarese v. Fleckenstein, 111 N. J. L. 574; 168 Atl. Rep. 850; affirmed, 114 N. J. L. 275; 176 Atl. Rep. 332. It is clear from the proofs that the condition complained of was not created by the defendant but existed prior to the latter’s acquisition of the property. The finding by the court below that the defendant maintained and adopted the condition is a conclusion that seems to have no support in the proofs. The round opening, about twelve inches in diameter, in the cement suggests that a pole or a tree may originally have occupied that space, but whether so or not and, if so, at whose instance it was put there or removed does not appear. If the defect was breakage and dilapidation in the cement, and the charge against the defendant is failure to repair, that sets up no case for the plaintiff. Rupp v. Burgess, 70 N. J. L. 7; 56 Atl. Rep. 166. All that we have is that there was the hole in the cement and a slight depression of an inch in the earth fill, a condition that existed at the time of the acquisition of title by the defendant and still remains. That, under the cases, is not sufficient to visit liability upon the defendant. The refusal of the motions for nonsuit and direction was error.

Kespondent’s brief mentions a photograph that was in evidence, but the photograph is not before us and is not recited in the settlement of facts that comes to us in the printed case.

The judgment below will be reversed.


text:
    SADIE J. FOLLEY, PLAINTIFF-RESPONDENT, v. UNITED BUILDING AND LOAN ASSOCIATION OF HACKENSACK, DEFENDANT-APPELLANT. GEORGE FOLLEY, PLAINTIFF-RESPONDENT, v. UNITED BUILDING AND LOAN ASSOCIATION OF HACKENSACK, DEFENDANT-APPELLANT.
    Submitted January 26, 1935
    Decided April 6, 1935.
    Before Justices Lloyd, Casis and Donges.
    For the plaintiffs-respondents, James A. Major.

    For the defendant-appellant, Harry E. Walburg.

   The opinion of the court was delivered by

Case, J.

Sadie J. Folley sues for personal injuries and her husband, George Folley, for damages per quod. Each state of demand alleges that the defendant is the owner of certain dwelling house premises and that on or about February 12th, 1934, the parties plaintiff, as tenants of the premises, took up their occupancy by virtue of a certain lease made by the defendant with Mrs. Folley; that the defendant, as landlord, was then under the duty of using due and proper care to keep and maintain the stairways in a safe and proper condition; that defendant failed therein and that consequently, on the said February 12th, 1934, Mrs. Folley fell and was injured in using the rear stairway. At the close of plaintiffs’ case defendant moved and was denied a nonsuit, to which ruling exception was taken. At the close of the entire case defendant moved for a direction of verdict upon which decision was reserved. The ruling on the last mentioned motion and the judgment itself do not appear in the printed state of the case except as the clerk’s docket discloses a judgment for the plaintiff in the sum of $200. However, the issue disclosed by the briefs is whether the defendant was entitled to succeed as on a motion for judgment, and this, in turn, depends upon whether or not there was evidence to establish Mrs. Folley as an invitee rather than as a trespasser or a licensee.

On January 22d, 1934, Mrs. Folley and the defendant entered into' a written lease for the premises to begin on February 15th, 1934, and to end on May 1st, 1935. Mrs. Folley testified that there as an oral undertaking by the defendant that it would make necessary repairs, “would clean and fix everything there was to be done and have the house in good order.” Assuming that that oral undertaking made by a representative of the defendant was binding upon the defendant, it nevertheless remains that the Folleys went into the premises on the 12th of February, three days before the term of the lease began, apparently without any authority and, so far as the record discloses, without any knowledge on the part of the defendant. We are unable to draw from the testimony an invitation to the Folleys to enter the premises before the time fixed in the lease or to deduce a legal obligation upon the defendant to have the repairs made before the beginning of the lease term. Bespondents’ brief contains the assertion that “there was sufficient evidence from which a jury could infer that Mrs. Folley was an invitee,” but we are cited to no such testimony. The burden of proof is, of course, upon the plaintiffs, and as there is no proof that the plaintiffs were on the premises on the 12th day of February by any invitation, express or implied, of the defendant, it follows that they were either trespassers or licensees. The general rule is that the only duty of a landowner to a licensee or a trespasser is to refrain from acts -willfully injurious. Fleckenstein v. Great Atlantic and Pacific Tea Co., 91 N. J. L. 145; 102 Atl. Rep. 700. There is neither proof nor suggestion that the defendant as guilty of willful or wanton injury. Defendant’s motion should, therefore, have been granted as to Mrs. Folley. Unless the wife can recover for personal injuries suffered by her, the husband in such an action is not entitled to consequential damages. Rossman v. Newbon, 112 N. J. L. 261; 170 Atl. Rep. 230. Therefore the motion as to the husband should also have been granted.

Judgment below will be reversed.


text:
    LLOYD W. CASNER, INCORPORATED, A CORPORATION, PLAINTIFF-RESPONDENT, v. WILLIAM HARTSHORNE, DEFENDANT-APPELLANT.
    Submitted January 26, 1935
    Decided April 6, 1935.
    Before Justices Lloyd, Case and Donges.
    For the plaintiff-respondent, Charles Walker.

    For the defendant-appellant, Theodore D. Parsons.

   The opinion of the court was delivered by

Case, J.

The appeal is from a judgment of $478.02 and costs entered on a jury verdict in the District Court of the Second Judicial District of the county of -Monmouth. Plaintiff sued to recover costs that he had paid incident to an appeal by him from an adverse judgment in an action tried at the Monmouth Circuit -wherein he was the plaintiff and the present defendant was his attorney. Defendant’s employment as such attorney was under a contract in writing signed by the defendant, as follows:

“Dear Mr. Hartshorne:

This will confirm my conversation with you in reference to your fees in the case in which I am the plaintiff, and the Pitkin Memorial Hospital is the defendant now on the list for trial in the New Jersey Supreme Court in Monmouth county.

Pursuant to our conversation, I hereby authorize you to deduct from whatever money you recover in this suit, 25% to cover your fees and disbursements. The understanding being that you are to conduct the case to its conclusion, and if the judgment is recovered to take such further steps as you may deem necessary to collect the money due thereon, whether in the law courts or in the Court of Chancery if the same should be necessary. Also that in the event of an appeal from the judgment of the law court, you will conduct the appeal without cost to me other than the $100 retainer which yon have heretofore received and which is to be yours in addition to the 25%.

Yours truly,

I hereby accept the retainer as above stated.

¥m. Haetshoene."

The above mentioned judgment was affirmed by the Court of Errors and Appeals on the appeal.

Appellant’s first point is that the contract as construed by the plaintiff is void because against public policy. Plaintiff construed the contract as an undertaking by the defendant to pay the costs and disbursements of the appeal without contribution from the plaintiff except as set forth in the contract. And that, for the purpose of this point, must be understood as the bargain. The argument is that the contract is against public policy in that it violates the old common law rules against maintenance and champerty. But nearly fifty years ago it was held in Schomp v. Schenck, 40 N. J. L. 195, 206, that the doctrine of maintenance does not prevail in this state and that as a consequence a contract may not be voided on that ground. That decision has since been regarded as the ruling law on the subject in this jurisdiction. Bouvier v. Baltimore and New York Railway Co., 67 N. J. L. 281, 291; 51 Atl. Rep. 781; Terney v. Wilson, 45 N. J. L. 282; Weller v. Jersey City, &c., Railway Co., 66 N. J. Eq. 11, 17; 57 Atl. Rep. 730; Bigelow v. Old Dominion Copper, 74 N. J. Eq. 458, 490; 71 Atl. Rep. 153. It is said that the involvement of costs rather than mere services puts the instant case outside the purview of the S chomp decision. Hot so. The opinion (at p. 201), makes clear that a stipulation to bear the expenses of a litigation is on a par with a bargain for services.

Further, we consider that the agreement as so construed is not so much against public policy as would be the act of the attorney in violating a compact with his client to the latter’s disadvantage after the event against which it was directed had transpired.

The second and remaining point presented by the appellant is that the written contract was not ambiguous and therefore should have been construed by the court and should not have been submitted to the jury for interpretation. The point rests upon the following portion of the judge’s charge to the jury: “It is the province of the court to determine the effect of a contract as a matter of law, but if the contract by its terms is ambiguous, it is the province of the jury to determine its effect.” The harm which appellant urges was suffered by him as a result of this charge is that the contract was submitted to the jury for interpretation.

Where there is no ambiguity in a written contract, it is the province of the court and not of the jury to determine its meaning (Albert v. Ford Motor Co., 112 N. J. L. 597; 172 Atl. Rep. 379), but when the construction of a written instrument depends upon extrinsic facts, as to which there is a dispute, its construction is a mixed question of law and fact and presents a jury question under proper instructions from the court. Sommer Faucet Co. v. Commercial Casualty Insurance Co., 89 N. J. L. 693; 99 Atl. Rep. 342. The written agreement on its face appears to us to be without ambiguity: * * * “In the event of an appeal from the judgment of the law court, you [the defendant] will conduct the appeal without cost to me [plaintiff] other than the $100 retainer which you have heretofore received and which is to be yours in addition to the 25%.” There was an appeal and therefore the obligation upon the appellant to conduct the appeal without cost to the respondent except as set forth in the writing is plain. Had the judge interpreted the contract he must so have ruled. But the appellant injected into the trial of the instant case the proposition, with supporting proof extrinsic to the writing, that the contingent fee named in the writing referred not to an appeal by the plaintiff but only to a possible appeal by the party sued, namely, Baleigh Pitkin-Paul Morgan Memorial Hospital, and that this interpretation of the contract was understood by the respondent at the time the contract was made and also at a later conference. That proof was controverted by the respondent. There was thus brought into the case at the instance of, and in the interest of, the appellant a factual doubt which had to be resolved by the jury and could not be settled by the court. Therefore, although the court’s charge was not a precise statement of the law, we think that the defendant was not harmed thereby. The contract had to go to the jury for determination, and to the jury it went. That course gave the defendant an opportunity to prevail which he would not have had under the strict construction of the written words.

The judgment below will be affirmed, with costs.


author: Pee Cubiam.

text:
    WILLIAM KRUSCHKA, BY HERBERT P. KRUSCHKA, HIS NEXT FRIEND, HERBERT P. KRUSCHKA, INDIVIDUALLY, AND EDITH H. KRUSCHKA, PLAINTIFFS-RESPONDENTS, v. MAE KONVITZ, DEFENDANT-APPELLANT.
    Submitted January 26, 1935
    Decided April 9, 1935.
    Before Bbogan, Chief Justice, and Justices Pabkee and Bodine.
    Por the defondant-appellant, Edward A. Mar'kley.

    Por the plaintiffs-respondents, William J. O’Hagan.

   Pee Cubiam.

The infant plaintiff was grievously injured by reason of a collision between the car his father was driving and that driven by the defendant. The action was tried before the court and a jury.

The court, at no time, defined negligence, proximate cause, contributory negligence, or stated the true rule of damages applicable to an action of this kind. Such legal principles were obviously an essential part of the court’s charge, if the jury were to' find the facts within the bounds of the controlling legal principles. Counsel was certainly entitled to the expectation that the court would observe this fundamental duty. At the close of the charge, counsel directed the court’s attention to the omission but the court instead of then requesting written requests, if ignorant of the legal principles applicable, expressed the opinion that the matters suggested were well covered. We cannot find this to be so. Such action was prejudicial error. Hartwyk v. Shea, 114 N. J. L. 235; 176 Atl. Rep. 390.

Since this case must be retried, it might be well for counsel to note that an inquiry addressed to 'jurors as to their acquaintance with counsel employed in the case finds no sanction in our law, since mere acquaintance would not tend to show a lack of impartiality as between the parties to the suit. Boyd v. Husted, 3 N. J. Mis. R. 225; 127 Atl. Rep. 667.

The judgment is reversed.


author: Bbogan, Chief Justice.

text:
    RAYMOND CHASAN, PROSECUTOR, v. THE COURT OF COMMON PLEAS IN AND FOR THE COUNTY OF HUDSON, GUSTAVE BACH, CLERK OF THE COUNTY OF HUDSON, ELNORA SMITH AND RICHARD J. NORRELL, RESPONDENTS.
    Submitted January 26, 1935
    Decided April 9, 1935.
    Before Bkogan, Chief Justice, and Justices Pakkee and Bodine.
    For the prosecutor, Richard Doherty.

    For the respondents (Eichard J. Horrell), Robert 8. Barigrove.

   Bbogan, Chief Justice.

The writ brings up for review an order of the Court of Common Pleas of Hudson county in a garnishment proceeding. The situation may briefly be stated as follows: Raymond Chasan, an attorney-at-law of New Jersey, had acted as solicitor in a Chancery proceeding for his client, Elnora Smith, as a result of which it was decreed that Miss Smith was entitled to $3,493.87. It appears without dispute that there was an agreement between him and his client that he should receive one-third of the amount recovered as and for compensation for his legal services. Thereafter, as solicitor, he received $1,576.45 on account of the amount due under the decree and he advised his client of the sum so received and further that he was retaining therefrom the amount of his entire fee, namely, $1,164.62, and that he held the balance of $411.83 subject to her order. The client, Elnora Smith, withdrew the sum of $100 from the amount so held by the attorney for her. Thereafter she confessed judgment in favor Of Richard J. Horrell for the amount of a funeral bill for the burial of her sister which totaled over $600; execution was issued for the amount of the unpaid judgment and a copy of the execution served on said Chasan, from whom the officer demanded the full amount of the judgment, which he refused to pay. Thereupon an affidavit was presented to a judge of the Common Pleas Court, who allowed a rule to show cause as to why Chasan should not pay this judgment in full out of the fund he had recovered for Miss Smith.

On the return of the rule to show cause no witnesses were sworn, no affidavits received nor proof of any kind offered on the matter. The court, having heard the matter thus informally, and the representations of the parties, signed an order declaring that all the moneys in the hands of Chasan were held for the benefit of Elnora Smith except the sum of $525.49 upon which Chasan was allowed a lien for the services he rendered his client in the Court of Chancery, and further ordering that Chasan pay over to the attorney of Horrell a sum sufficient to satisfy the judgment. The order is brought up by the writ for review and is challenged by the reasons for reversal which we find unnecessary to state.

The order will be set aside for the reason that the court, in making the order in question, exceeded its jurisdiction. The theory upon which the order was made was that the court determined that Chasan was a mere garnishee which, in the record before us, depositions having been taken under the writ, he denies, except as to the sum of $311.83. The execution statute (Cum. Supp. Comp. Stat. 1911-1924, p. 1207, § 71-9i), provides, under circumstances like these, that the court may, on the return of a rule to show cause, order a garnishee to pay the debt, providing he admits it. But here, Chasan, the solicitor, does not admit that he holds sufficient moneys of the judgment debtor to' satisf}’’ the debt. He contends that he retains only $311.83 of Miss Smith’s money and that the balance belongs to him for services. Whether he is within his rights in so doing is another matter, not before us. The court below had no power to determine, in a proceeding of this kind, the rights of the adverse claimants to the fund. Ho suit therefor was pending and the rule to show cause served on the attorney was not process sufficient to give the court jurisdiction over the subject-matter of the controversy. National Bank of New Jersey v. Ainscow, 12 N. J. Mis. R. 562; 173 Atl. Rep. 336; First Mechanics National Bank of Trenton v. New Jersey Brick and Supply Co., 112 N. J. L. 218; 171 Atl. Rep. 176; The Barrett Co. v. United Building Construction Co., 5 N. J. Mis. R. 87; 135 Atl. Rep. 477; N. Drake, Inc., v. Donovan, 8 N. J. Mis. R. 869; 152 Atl. Rep. 337.

The order will therefore be set aside, with costs.


author: Bbogan, Ciiiee Justice.

text:
    STATE OF NEW JERSEY, PHILIP REEVES, A POLICE OFFICER OF THE TOWN OF BLOOMFIELD (PROSECUTOR), DEFENDANT IN CERTIORARI, v. CHRISTOPHER MOWEL (DEFENDANT), PROSECUTOR IN CERTIORARI.
    Submitted January 26, 1935
    Decided April 9, 1935.

      Before Bbogan, Chibe Justice, and Justices Pabkeb and Bodine.
    Por the defendant in certiorari, William A. Wachenfeld, prosecutor of the Pleas (C. William Caruso, legal assistant).
    Por the prosecutor in certiorari, 8am Weiss.

   Bbogan, Ciiiee Justice.

The writ of certiorari in this case was allowed to review the conviction of the prosecutor for violation of a provision of the Motor Yehicle act. The prosecutor was convicted as a second offender against the provisions of the statute (Pamph. L. 1931, ch. 171, § 14, subdiv. 3, an amendment of the original act, Pamph. L. 1921, ch. 208), in that he operated an automobile while under the influence of intoxicating liquor. He was convicted of the present charge in the Eecorder’s Court of the town of Bloomfield in Essex county, and on appeal to the Common Pleas Court of that county where, under the statute, a trial de novo was had, the conviction was affirmed.

The record before us indicates that previously, on January 9th, 1931, he had been convicted of a like offense in the Police Court of Orange, New Jersey.

The prosecutor files two reasons for reversal, the first being that the warrant following the conviction in the Eecorder’s Court of Bloomfield was not issued in the name of the police officer who made the arrest, as complainant. We find no merit in this contention. The Motor Yehicle act of 1921 (supra) by section 30, page 680, provides that all proceedings for the violation of the provisions of this act shall be entitled and shall run in the name of the state with the commissioner of motor vehicles or a motor vehicle inspector, or a police officer or a constable, or such other persons as shall, by complaint, institute the proceedings, as prosecutor. In this case the proceeding by which the prosecution was initiated, i. e., the complaint in which the charge was stated, was entitled in the name of the State of New Jersey and the name of the arresting officer was stated, as the prosecutor. The section above mentioned does not mean, much less necessitate, that the warrant must contain the name of the police officer who intends to prove the violation. A reading of the statute in its entirety as to this particular makes that manifest. Turning to the twenty-fifth section of the statute (supra—at p. 677), we find authority for a magistrate or recorder or police judge, within thirty days after the commission of the offense, to issue a summons or warrant directed to any constable, police officer, &c., for the appearance or arrest of the person so charged. The first reason for reversal therefore fails.

The second point relied upon for a reversal of the conviction is that the Common Pleas Court received in evidence a certified copy of the prosecutor’s prior conviction of a like violation of the act in the Police Court in Orange. The certificate thus received in evidence is a recital under the hand and seal of the commissioner of motor vehicles that the license of the prosecutor was revoked on January 9th, 1931, following a conviction for driving while intoxicated, &e. Attached to said certificate was the report of the magistrate who had heard the case in the Police Court of Orange, New Jersey, showing that the prosecutor was adjudged guilty of violation of the statute (section 14, subsection 3) on January 9th, 1931; that he was fined $200 and his license revoked for two years. Purthermore, subdivision 2 of article 4 of the statute (supra) provides that any such record from the office of the commissioner of motor vehicles when authenticated, as this exhibit was, “shall be evidence equally with and in like manner as the original.” The exhibit therefore was properly received in evidence.

The prosecutor did not take the stand. Ho testimony in his behalf was offered in the trial before the Common Pleas Court. We notice, too, that there is included in the return to the writ the record Of conviction of the prosecutor in the Recorder’s Court of Bloomfield, which is in nowise challenged, and that it contains the recital that “the said Christopher Mowel, defendant, pleaded guilty to having been in fact convicted of a previous violation of the aforesaid subdivision, section and act, to wit, on January 9th, 1931, at Orange, New Jersey.”

We find no merit in the reasons for reversal, and the judgment of conviction is affirmed, with costs.


text:
    THOMAS ARLOTTO, APPELLANT, v. HAUCK REALTY COMPANY, RESPONDENT.
    Submitted October 12, 1934
    Decided March 25, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Jacob Siegal.

    For the respondent, Frederick J. Gassert.

   Lloyd, J.

Plaintiff below brought an action of replevin to recover four boilers and four ranges sold to Emma G. Lembo under a conditional sales contract, she being the owner of the house in which they were placed. The defendant at the time was the holder of a mortgage which was in process of foreclosure. It subsequently became the purchaser of the property and it was in this capacity that it became the defendant in the present action. Judgment was given for the defendant in the District Court and the plaintiff appeals, contending that under the evidence judgment should have been rendered in his favor.

By the terms of the conditional sale agreement the contract called for the sale and installation of the boilers and ranges, and it was stipulated in the state of the case that the “ranges and boilers are connected together and to the plumbing system by couplings and are easily removable.” It was also stipulated that there were no ranges or boilers in the premises at the time these were installed.

It is urged by the appellant that the property of the plaintiff in these chattels was protected by the Conditional Sales act of 1919 (page 461) which provides in section 4 as follows:

“Every provision in a conditional sale reserving property in the seller after possession of the goods is delivered to the buyer, shall be valid as to all persons, except as hereinafter otherwise provided.”

These exceptions are contained in paragraphs 5 and 7 as follows:

“5. Every provision in a conditional sale reserving property in the seller, shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the contract or a copy thereof shall be filed as hereinafter provided, unless such contract or copy is so filed within ten days after the making of the conditional sale.”

“7. * * * If the goods are so affixed to realty at the time of a conditional sale or subsequently as to become part thereof, but to be severable without material injury to the freehold, the reservation of property shall be void after the goods are so affixed as against subsequent purchasers of the realty for value and without notice of the conditional seller’s title, unless the conditional sale contract, or a copy thereof, together with a statement signed by the seller briefly describing the realty and stating that the goods are or are to be affixed thereto, shall be filed before such purchase in the office where a deed of the realty would be recorded or registered to affect such realty.”

We think it clear from the stipulation that the goods were not so attached to the freehold that they could not be removed without material injury to the property, and that this is so clear that no finding to the contrary could be sustained on the facts. The building to which they were attached was a house (presumably a dwelling house) and by the stipulation were “connected only by couplings and were easily removable.” Certainly no inference could be drawn therefrom that such removal would do material injury to the freehold. Nor do we think that the plaintiff’s title was impaired by the other quoted sections of the Sales act.

From the stipulation it appears that the conditional sales contract was made on October 3d, 1931, and filed November 18th, 1932. Foreclosure proceedings on the mortgage held by the defendant were instituted on August 13th, 1931, a decree entered October 31st, 1932, and on November 16th, 1932, a fieri facias was issued in the case and a levy made upon the premises. On December 15th, 1932, the property was sold by the sheriff.

A critical examination of sections 5 and 7 makes it apparent that the former is dealing solely with detached goods which are the subject of a conditional sale and to purchasers of those goods or creditors acquiring liens thereon. It in no wise refers to a purchaser of the real property, and that this is so is apparent from a like careful reading of section 7 which protects a purchaser of the realty where fixtures are attached to the freehold though subject to easy removal without damage unless the contract is filed before the purchase is made.

Tested by this construction we think the judgment cannot be sustained. The mortgagee was not a purchaser of the goods within the intent and meaning of section 5. It was a purchaser, we think, ultimately of the real property, even though that purchase was by sheriff sale, and the goods were affixed to the realty but in a manner severable without injury to the freehold, but as such purchaser his title would only be protected as against a conditional sale seller’s rights if the conditional sale contract was not filed before the purchase. The purchase under the sheriff sale by the mortgagee was on December 15th, 1932, but the conditional sales contract had then already been recorded. This being true the title of the seller remained undisturbed.

The conclusion here reached is in harmony with the case of Sellitto v. Heating and Plumbing Finance Co., 116 Id. 247; 174 Atl. Rep. 147; affirmed, 117 N. J. Eq. 19; 174 Atl. Rep. 708.

The judgment is reversed with costs.