text:
    AMERICAN WATER CORPORATION, PROSECUTOR, v. MAYOR AND COUNCIL OF THE BOROUGH OF FLORHAM PARK, NEW JERSEY, AND LAYNE-NEW YORK COMPANY, RESPONDENTS.
    Submitted May 13, 1927
    Decided October 25, 1927.
    Municipalities — Contracts—Water Supply — Bids Advertised for and Submitted — Both Unofficially Held Too High — At Request Both Reduced to the Same Amount — Award to One of the Two Bidders — Legal Reasons Not Apparent for Doing so, Award Will be Set Aside.
    On rule to show cause why a writ of certiorari should not issue.
    Before Justices Tkencbabd, Kalisob and Katzenbach.
    For the prosecutor, Hoplcins é Herr.

    For the respondents mayor and council of the borough of Florham Park, New Jersey, Robert E. Burhe.

    For the respondent Layne-New York Company, Hobart & Minará.

   Per Curiam.

This case is before us on a rule to show cause why a writ of certiorari should not be allowed to review three resolutions passed by the mayor and council of the borough of Elorham Park at a meeting of the borough council held on April 4th, 1927. These resolutions refused to award a contract for the digging of a well and installing of a pump and appurtenances to the American Water Corporation, rejected the bid of that company, and awarded the contract to the LayneNew York Company.

The case, by stipulation, is to be treated as though a writ of certiorari had been granted. The proofs taken under the rule to show cause present all the testimony relative to the case. Reasons have been filed by the prosecutor and are printed in the record.

The borough of Elorham Park, in the county of Morris, desired to improve its water supply. An engineer of high standing was consulted. He prepared plans and specifications for the improvements desired. Bids were advertised for. Two bids were submitted, one of the American Water Corporation (the prosecutor), computed by the engineer to amount to $19,400, and one of the Lajme-New York Company which was computed by the engineer to amount to $22,350. These bids were opened and read at a council meeting held on Eebruary 23d, 1927. They were laid over for further consideration. The mayor and members of the council in the meantime visited installations made by the respective bidders. • On April 3d, 1927, a Sunday afternoon, the matter was informally discussed by the mayor and members of council. The engineer of the borough was present. He said that in his opinion both bids were too high and recommended that both be rejected and that the borough re-advertise the work. This suggestion was not satisfactory to the mayor and council because of the delay incident to re-advertising. It was then suggested that the engineer write a letter to the prosecutor asking if he would be willing to accept a contract from the borough to do the work as outlined in the specifications subject to certain conditions, not given in the specifications, for $17,000. This was done. At the same time a similar letter was written and sent to the Layne-New York Company. In replies each bidder agreed to do the work for $17,000. In the answer of the American Water Corporation it was stated by them that as their hid was the lowest they felt that they should have the contract. The Layne-New York Company, in its answer, suggested an extension of time within which the work should be done.

The borough took no action on the letters and replies thereto. At a meeting of the council held on April 4th three resolutions were introduced. The first was to accept the hid of the .American Water Corporation. This was lost by a vote of four to three. The second was that the bid of the American Water Corporation he rejected. This was passed by a vote of four to three. The third resolution was for the acceptance of the Layne-New York Company hid. This was passed by a vote of four to three. There was no question as to the financial responsibility of either bidder or as to the sufficiency of the equipment of ability of either bidder to do the work. The engineer had advised the council that both bidders could do the work.

The reasons assigned for setting aside the award to the Layne-New York Company are ten. Many of them state the same reason in several forms. There are but two questions which we will consider in the disposal of the present controversy. The first is, was the borough obliged to award the contract to the lowest responsible bidder, and did it do. so ? The second is, was there any hearing afforded to the prosecutor before the rejection of its bid (the lowest) as to its responsibility and ability to do the work, and was such a hearing necessary before its bid could be rejected on this ground ?

Taking up the first question the evidence is conclusive that the prosecutor was the lowest bidder. The engineer so found and a reference to the bids of both bidders verifies this. The statute (Pamph. L. 1925, p. 367) provides that:

“No municipality shall enter into any contract for the doing of any work * * * where the sum to be expended exceeds the sum of one thousand dollars, unless the governing body shall first publicly advertise for bids therefor, and shall award the said contract for the doing of said work * * * to the lowest responsible bidder.”

Under this statute the borough was obliged to award the contract to the prosecutor as being the lowest bidder unless there was evidence that would justify a belief on the part of fair minded and reasonable men that the lowest bidder would be unable to perform its contract. Paterson Contracting Co. v. Hackensack, 99 N. J. L. 260. One who is the lowest bidder is entitled to a hearing as to his responsibility before his bid is rejected. Breckenridge & Tichenor v. Newark, 95 Id. 436; Kelly v. Freeholders of Essex, 90 Id. 411. The record discloses that there was no opportunity afforded the prosecutor to show its responsibility. The rejection appears to have been induced by a belief on the part of some of the members of council that the Layne-New York Company had constructed more wells and possibly possessed more imposing equipment. The defendants argue that a hearing was afforded the prosecutor because its representative was present and participated in the discussion of his company’s ability to do the work. We think there is no merit in this contention. The discussion was informal. There was no notice given the prosecutor that its responsibility as a bidder was questioned. There was no opportunity afforded it to present testimony before the council on this point. In fact, we do not think it was the intention of the members of council to question the prosecutor’s responsibility as a bidder. If so they took no proper procedure to do it.

The judgment of this court is that a writ of certiorari be deemed to have been issued bringing up the resolutions and proceedings awarding the contract to the Layne-New York Company, and that said proceedings, including the award of the contract to the Layne-New York Company, be set aside. An order to this effect may be entered, with costs to the prosecutor.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ADOLPH ROOT, ISRAEL MARCUS, LOUIS P. KARSHMAR AND FANNIE KARSHMAR, PROSECUTORS, v. THE MAYOR AND ALDERMEN OF JERSEY CITY AND THE CITY CLERK OF JERSEY CITY, RESPONDENTS.
    Decided November 12, 1927.
    Municipalities — Ordinances—Improvements—Notices to Owners of Land to be Taken — Ordinance Proposed to Take Land for Street Improvement — Held, Defective in That First, Ordinance Did Not State the Location and Character of the Improvement With Sufficient Definiteness as the Law Requires; and Second, it was Illegally Passed, Since There was No Notice of Its Pendency to the Prosecutors as the Law Requires — The Statutes Relating to Municipal Ordinances Reviewed.
    On certiorari.

    Before Justices Treno har», Kalikcfi and Katzenbach.
    For the prosecutors, Perkin.s’ A Drewen.

    For the respondents, Thomas .7. Brogan.

   Per Curiam.

The certiorari allowed in this case brings up for review an ordinance, adopted by the board of commissioners of the mayor and aldermen of Jersey City, entitled "An ordinance to improve Grove street, Newark avenue and Railroad avenue, all in the city of Jersey City, by altering and changing the aforesaid streets in accordance with a hereinafter-mentioned plan,” and which ordinance ordains:

“(1) That for the purpose of altering and changing and otherwise improving ail of the aforesaid streets, all of the property now herein described shall be taken over, and acquired by the city of Jersey City for its uses and purposes: “(a) All of the several properties, together with all improvements and appurtenances thereto, now known as lots 1, 2, 3, 4, 5 and 6 in block No. 204, as shown and described more particularly on a certain map which is annexed hereto and made part hereof.

“(2) All of this said improvement is to be made in conformity with provisions of chapter 152 of the laws of 1917, and the various supplements thereto and amendments thereof, and in accordance with other specifications hereafter to be prepared.

“(3) All of this said improvement shall be deemed to be local only in some certain part or parts hereafter to be determined by the board of assessment, commissioners of the city of Jersey City, and for such part of this improvement as may be determined upon by this said board, a proportion of the costs of the improvements will be taxed.

“(4) This ordinance shall take effect immediately.”

There was annexed to the ordinance a map which contained the following note: “Plotted from survey made 1899 by N. B. Wortendyke, checked and found to agree with the city assessment map of 1926,” and a diagram representing Newark avenue, Railroad avenue and Grove street, and a triangular shaped plot representing lots marked 1, 2, 3, 4, 5 and 6.

There was no other description than that above indicated of the property to be affected by the proposed improvement.

The prosecutors were the owners of lots numbers 1, 2 and 3.

The grounds relied on by them and urged for setting aside the ordinance are — (1) That the ordinance is contrary to the express mandate of the statute, in that the ordinance does not “state the location and character of the improvement to be made,” and (2) that the ordinance was illegally passed and adopted because the prosecutors were not afforded an opportunity to be heard and because the ordinance was passed without notice to the prosecutors of its pendency.

First, as to the prosecutors’ contention that the ordinance is invalid because it does not state the location and character of the improvement to be made. This contention is, .apparently, based on the provision of section 23, article 20 of chapter 152 of the laws of 1917, as amended by chapter 71 of the laws of 1925, which section reads: “When any improvement ordinance shall require the taking of lands or real estate, or any rights or interests therein of any owner thereof, the ordinance for that purpose, when introduced, shall state the location and character of the improvement proposed to be made, the lands and real estate to be taken therefor sufficiently described so as to be readily identified, and such ordinance shall be accompanied by a map prepared under the direction of the governing body showing in detail the location and dimensions of such land proposed to be taken.”

It is manifest from an examination and reading of the ordinance that it does not state the character of the improvement proposed to be made. It is to be observed that section 23 of the Home Rule act, above quoted, not only requires that the location and character of the improvement to be made shall be stated in the ordinance, but that such ordinance shall be accompanied by a map also.

The failure to state in the ordinance the location and character of the improvement, and to sufficiently describe the lands and real estate to be taken for such improvements is fatal to the validity of the ordinance. The statute makes these requirements pre-essentials to be complied with for the enactment of a valid ordinance.

The second point made against the validity of the ordinance is that it was illegally passed and adopted, in that no opportunity was afforded to the prosecutors to be heard before its passage, and because the ordinance was passed without notice to them of its pendency. Subdivision "A” of section 1, of article 10, of chapter 155 of the laws of 1925, paragraph 1, provides: "Every ordinance after being introduced and having passed a first reading shall be published at least once in a newspaper printed and circulated in the municipality, if there be one, and if not in a newspaper printed in the county and circulated in the municipality, together with a notice of the introduction thereof and the time and place when and where such ordinance will bo further considered for final passage.”

Paragraph (b) of section "A” provides, in case of ordinances providing for local improvements authorized by article 20 of the Home Rule act, such publication shall be twice, once of which shall be at least ten days prior to the time fixed for further consideration of final passage, and within the same time a copy of such notice shall be mailed to every person whose lands may be affected by such ordinance.

The record discloses that no notice was given to the prosecutor of any hearing to be held on the ordinance, as is required to be given by the statute, before its proposed passage. Erom the record it appears that a hearing was had on September 7th, 1926, at which time the ordinance in question was considered, and that at that hearing there was no objection presented against the ordinance. Since the record discloses that no notice was given to the prosecutors of such hearing, we cannot assume, in the absence of any testimony or circumstance tending to show that any one of them was present, that they were otherwise made aware of the hearing.

It is true that under paragraph (b) it is further provided that the failure to mail the notice therein provided for shall not invalidate any ordinance, proceeding or assessment.

This provision seems to us can only be understood in the sense, if that is practicable, so far as owners of land affected by the ordinance, who have received statutory notice, the failure to give such notice to one or more owners of lands affected by the ordinance shall not invalidate such ordinance as to those who have received notice. To adopt any other view would not only make the provision of the statute requiring the giving of notice an idle ceremony, but would impliedly sanction the taking of one’s property without due process of law. See Loudenslager v. Atlantic County, 86 N. J. L. 555.

We cannot say, from the record before us, that the prosecutors are chargeable with laches.

For the reasons stated, the ordinance should be set aside.


text:
    ANNA KALB, PLAINTIFF-APPELLANT, v. MORRIS FISHER, DEFENDANT-RESPONDENT.
    Submitted May term, 1927
    Decided November 15, 1927.
    Negligence — Injury to Customer of a Grocery Store Through a Fall — Nonsuit on Ground That Negligence Had Not Been Shown — Held, That There was Evidence of Negligence in Allowing Vegetable Refuse to Habitually Litter the Sidewalk When the Injury Occurred — Judgment Reversed.
    On appeal from the Essex Circuit Court.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the appellant, Bilberman <£• Grosman.

    For the respondent, Nathan H. Berger.

   Per Curiam.

This is the plaintiff’s appeal from a judgment of nonsuit in the Essex Circuit Court. The ground of appeal is that the court erroneously granted a nonsuit.

The ease made by the plaintiff was that oil April 23d, 1925, she entered the defendant’s grocery and vegetable store at 298 Belmont avenue, Newark, to make some purchases. As she was leaving the store at the stoop, leading from the store to the sidewalk, she slipped, fell and struck her right knee on a lettuce box and received injuries for which the present action was brought.

The nonsuit was granted by the learned trial judge apparently on the ground that no negligence was shown. We think this conclusion cannot be justified under the evidence. The proofs showed that the sidewalk in front of the defendant’s store was habitually littered with lettuce and other vegetable refuse and that the defendant was on a number of occasions notified by the street cleaners and city inspectors to abate the condition, which the defendant, though promising to comply, would refuse to do. There was proof that the plaintiff stepped on some of the lettuce leaves that were allowed to collect and that she received the injuries in consequence.

Eespondent relies upon the case of Taylor v. Roth & Co., 4 N. J. Adv. R. 974. That case, however, is not authority in the present situation. Plaintiff in that case sought to invoke the doctrine of res ipsa loquitur. The court held that the doctrine was not applicable, and that inasmuch as the plaintiff, had not proved that she had fallen on any slippery substance placed on the floor by the defendant, no negligence was established, and that a nonsuit was proper. In the present case there is proof not only that the plaintiff fell upon the lettuce leaves allowed to collect on the sidewalk by the defendant, but that this was a condition of. long standing of which the defendant had both actual and constructive notice.

The judgment is reversed and a venire de novo awarded.


text:
    INTERSTATE REFRIGERATING COMPANY v. ALPER SHRETER.
    Decided November 12, 1927.
    On plaintiff’s rule to show cause.
    For the plaintiff, Milton M. linger.

      Contra, Mendelsohn & Mendelsohn.

   Per Curiam.

Our examination of the proofs and rulings in the aDove cause leads us to the conclusion that none of the grounds relied upon by the plaintiff for setting aside the verdict have legal merit.

The rule to show cause will be discharged.


text:
    GEORGE F. HEWSON COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT, v. JOHN EBERSBERGER, DEFENDANT-APPELLANT.
    Submitted May term, 1927
    Decided November 15, 1927.
    Contracts — Commissions for Agent in Securing Tenant — Judgment for Plaintiff — Alleged That There was a Specific Contract, and That the Court Erred in Submitting Case on Quantum Meruit Basis; That There was No Proof of Services Upon Which to Rest a Claim and That as the Owner' on Good Grounds Refused to Complete the Lease, No Recovery Could be Had — Held, That There was No Error in Submitting Case on Basis of Reasonable Value of Services, That There was Evidence of the Value of the Services and That Claim That Owner Refused to Consummate Lease on Reasonable Grounds is Not Well Taken.
    On appeal from the Essex Circuit Court.
    Before Gummere, Chíbe Justice, and Justices Black and Lloyd.
    For the appellant, Fast & Fast.

    For the respondent, Aaron Harder.

   Per Curiam.

This is an appeal by the defendant from a judgment against him in the Circuit Court of Essex county, wherein the plaintiff was awarded $6,288.75 by a jury for the reasonable value of services rendered by the plaintiff to defendant in obtaining a tenant for an apartment house in Newark known as the M aragaret Ap artmen ts.

The grounds of appeal argued are:

1. That the court erred in submitting the case upon a quantum meruit basis, because, it is alleged, the complaint set up a special contract.

2. There was no proof of value of services upon which to rest a claim so based.

3. That the owner refused to complete the lease upon good ground; therefore, no recovery could be had.

The court did not err in submitting the case on the basis of the reasonable value of the services. The language of the complaint is substantially the same as in the case of Colloty v. Schuman, 16 N. J. L. 502, in which the Court of Errors and Appeals upheld a verdict resting on a quantum meruit. If the fact were otherwise, the case having been heard on its merits, amendment would be permissible even in this court. Boniewsky v. Polish Rome, 5 N. J. Adv. R. 540 (not yet officially reported). Moreover, section 21 of the Practice act of 1921, page 382, provides that “no judgment shall be reversed for error as to matter of pleading or procedure unless, after examination of the whole case, it shall appear that the error injuriously affected the substantial rights of the parties.” The defendant’s rights were not injuriously affected.

We think, also, that there was evidence of the value of the plaintiff’s services. It was shown that for renting there Avas a regular rate of five per cent, commission in the real estate board of the city of Newark, of which Hewson, president of the plaintiff company, Avas a member. This, coming into the case without objection, offered some basis for the jury’s consideration, and on it a verdict rendered at the lower rate of three per cent, was well within the proofs adduced.

The claim that the owner refused to consummate a lease to the tenant for adequate reasons is not well founded. It is difficult to find in the grounds of appeal any ruling of the courts presenting the question sought to be raised. If the fact here were otherwise, the criticism would be without merit. The plaintiff’s proofs showed that a tenant had been procured who was ready and able to comply with the terms which the plaintiff was authorized to offer. The defendant, however, attempted to make the signing of the lease contingent on an agreement with 'the plaintiff, his agent, as to commissions, and contends here that he could legally do so. This the court properly told the jury the defendant could not do; that in such a situation it was his duty to execute the lease, leaving to the future to settle his differences with the plaintiff by negotiation or suit.

The judgment is affirmed.


text:
    ANTHONY MAUTHE, PLAINTIFF-RESPONDENT, v. B. & G. SERVICE STATION, INCORPORATED, DEFENDANT-APPELLANT.
    Submitted May term, 1927
    Decided November 15, 1927.
    Negligence — Death of Boy Fifteen and a Half Years Old Through Burns — Boy was Employed in a Gasoline Service Station— Judgment for Plaintiff — Defendant Alleges That Plaintiff Has Remedy Under Workmen’s Compensation Act — Held, That Deceased Being Under Age of Permissive Employment, the Common Law Remedy is Not Affected by the Workmen’s Compensation Act, Notwithstanding the Statute of 1924, Chapter 159 — Held, Further, That the Accident was the Result of the Defendant’s Negligence and That the Award was Not Excessive Under the Circumstances.
    On rule to show cause.
    Before G-umhere, Chibe Justtoe, and Justices Biack and Lloyd.
    Eor the appellant, I. Faerber Goldenhorn.

    Eor the respondent, Meehan Brothers.

   Per Curiam.

This is defendant’s rule to show cause why a verdict recovered by Anthony Mauthe, administrator of Joseph Mauthe, deceased, should not be set aside and a new trial granted.

Joseph Mauthe, son of the plaintiff, was killed on February 26th, 1926. He was employed by the defendant in its gasoline supply station at the corner of Newark and Pavonia avenues, in Jersey City. The case was tried in the Hudson Circuit in January last and resulted in a verdict for the plaintiff in the sum of $8,000.

The reasons urged for a now trial are that the court erred in refusing a nonsuit, that the verdict is against the weight of the evidence and that it is excessive.

The grounds upon which the nonsuit was asked are that the respondent’s remedy was under the Workmen’s Compensation act of 1911 and its amendments and supplements, and that the trial court was consequently without jurisdiction to hear the case.

Joseph Mauthe was a minor of the age of fifteen and one-half years, and, therefore, under the age of permissive employment, under the statute, in the service for which he was engaged. This being true, the common law remedies of the administrator of his estate were not affected by the Workmen’s Compensation acts. Fier v. Weil, 92 N. J. L. 610; Lesko v. Liondale Bleach Works, 93 Id. 4. But it is contended that chapter 159 of the laws of 1924, page 359, provides a statutory remedy in such case which supersedes the common law remedy. The second section, paragraph 9, of the act expressly provides that nothing in the act “shall deprive an infant under the age of sixteen of the right or rights now existing to recover damages in a common law action or other proceeding for injuries received by reason of the negligence of his or her master.” We think the result reached by the earlier decisions above cited are not intended to be modified by the statute in question.

Our examination of the proofs convinces us that the evidence of negligence was such that the case was properly submitted to the jury and that its finding should not be disturbed. The deceased was employed in the defendant’s gasoline and fuel station in Jersey City. In this station gasoline, grease, motor oils and other materials of explosive nature were carried. On February 26th, 1926, there was an explosion in the station and the deceased was seen to run out of the building with his clothing in flames. Preceding the fire there was in a small room in the station a stove burning coal, around which there was no sheeting or other protection. The room contained lubricating oil, empty gasoline cans, drippings of gasoline in small quantities; the floor had oil and grease spots on it; there were small pieces of wood and papers lying around. On the dajr of the fire, firemen threw out the stove in which there were hot coals; on that day the same general conditions existed in the room as before the fire.

We think from this it was reasonable to infer that the explosion was caused by the heated stove coming in contact with explosive materials by reason of insufficient protection. The defendant produced no evidence, but rested on the proofs as already adduced.

As to damages. At the time of his death the deceased was receiving $20 a week which he paid over to his parents. He was also receiving small gratuities. He had been raised to a period when he was and could be expected to continue to be of substantial aid to his parents. The father was helpless owing to an injury to the eye, and it is not unreasonable to expect that the assistance which the son was rendering would be continued by him after reaching his majority.

Conceiving as we do that the evidence was legally sufficient to require its submission to the jury, that the jury was justified in inferring the defendant’s negligence therefrom, and that the verdict was not so clearly excessive as to require a retrial of the case, the rule for a new trial is discharged.


text:
    WILBUR D. SPEECE, PLAINTIFF-RESPONDENT, v. J. ANTHONY DEL VECCHIO, DEFENDANT-APPELLANT.
    Submitted May term, 1927
    Decided November 15, 1927.
    Contracts — Contract to Alter and Repair Building — Defendant Refused to Permit Plaintiff to Complete — Suit for Money Due Under Contract and for Certain Extras — No Error Found in Court’s Refusal to Grant Nonsuit, to Direct a Verdict, or in the Admission of Evidence — Judgment for Plaintiff Affirmed.
    On appeal from the Atlantic County Circuit Court.
    Before Gummeiie, Chief Justice, and Justices Black and Lloyd.

      Eor the appellant, 'William Elmer Brown, Jr.

    Por the respondent, Garitón Godfrey and William I. Garrison.

   Per Curiam.

This is an appeal by the defendant from a judgment rendered in the Atlantic County Circuit Court, in favor of the plaintiff, Wilbur D. Speece. Speece had contracted with the defendant, Del Yecchio, to make certain alterations in a building owned by the latter, at Haminonton. These alterations were not completed by reason, as claimed by Speece, of the fact that the appellant refused to permit him to complete. A lien was filed and the suit thereon prosecuted for moneys claimed to be due under the contract, and for certain extra work and materials, which Speece claimed to have furnished outside of the contract, at the request of the appellant.

The principal grounds of appeal are that the court refused to control the ease by the granting of a nonsuit, or the direction of a verdict in favor of the defendant below, and it is urged in support of the motions made to that end in the court below that the evidence for extras did not accord with the averments of the complaint, and that the plaintiff failed to substantially perform the contract. The first contention entirely overlooks the fact that the complaint alleged moneys to be due for extras, as well as under the contract, and as to the second, the proofs that the defendant had prevented full compliance with the original contract could not be ignored.

Error in the admission and rejection of evidence is alleged, as well as in portions of the charge, and denial by the court of certain requests presented for charge.

We have examined these grounds of appeal and do not find in the rulings on evidence anything justifying a reversal of the judgment. The requests presented in so far as they were proper were, we think, adequately covered in the court’s charge.

The judgment is affirmed.


text:
    MABEL J. CURTIS, PLAINTIFF, v. PUBLIC SERVICE RAILWAY COMPANY AND NATIONAL BISCUIT COMPANY, DEFENDANTS.
    Submitted May term, 1927
    Decided November 15, 1927.
    Negligence — Injury to Plaintiff’s Knee-joint — Judgment for $16,850 Held Excessive — Reduced to $13,000 or Rule Made Absolute.
    Oil rule for new trial.
    Before Guam eke, Chief Justice, and Justices Black and Lloyd.
    For the rule, Henry H. Fryling.

    Contra, Smith & Slingerland.

   Per Curiam.

This is a rule for new trial allowed to the defendant National Biscuit Company, based solely on the ground that the damages awarded are excessive.

Mabel Curtis, a school teacher, had a knee-joint broken March 4th, 1925, and the jury, on February 4th, 1921, awarded her $16,850 damages. The proofs were that the injury was painful and so continues, and she was kept in bed for eight weeks and had to submit to painful manipulation and flexing of the joint to lessen stiffness. After getting up she used first crutches and then a cane. She returned to her work in September following and is either taken to her school by a friend or by a taxi. The knee still causes pain and curtails some of her activities. It does not now, however, impair her earnings.

While all this is true, the award is very large, and, as we think, excessive, and should not be allowed to stand for the full amount. If, therefore, the plaintiff will accept a reduction of the verdict to $13,000 the rule will be discharged; otherwise it will be made absolute.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. HARRY MOORE, PLAINTIFF IN ERROR.
    Decided November 15, 1927.
    On. writ of error.
    Before Gummeeb, Chief Justice, and Justices Black, and Lloyd.
    For the plaintiff in error, B. Ten Broeclc Stout.

    For the defendant in error, James Mercer Davis.

   Per Curiam.

The writ of error in this case brings nothing before us for review. The state of the case discloses no judgment in the court below. It is only from final judgment that a writ of error will lie to the Court of Quarter Sessions. State v. Kelsey, 82 N. J. L. 542.

The writ will therefore be dismissed.

Submitted May term, 1927
    Submitted May term, 1927


author: Milton M. Unger, S. C. C.

text:
    Essex County Court of Quarter Sessions.
    STATE OF NEW JERSEY, PLAINTIFF, v. HARRY MORLEY, DEFENDANT.
    Searches and Seizures — Warrants—Liquor Laws — Warrants Must Contain Direction That it be Served in Daytime, Unless the Affidavits are Positive — Officer Must Give Copy of Warrant, Together With Receipt for Property Taken, Specifying it in Detail — Stealthy Encroachments Upon a General Depreciation of Rights by Well-Intended but Mistakenly Over-Zealous Executive Officers Must be Prevented.
    On motion to quash search warrants.
    For the defendant, William, A. Wachenfeld.

   Milton M. Unger, S. C. C.

Upon the complaint of Joseph Trivigino, supported by his affidavits, before a Supreme Court commissioner, made in pursuance of an act entitled “An act concerning intoxicating liquor, used or to be used for beverage purposes” (Pamph. L. 1922, ch. 255), the Supreme Court commissioner (who, by the act, is constituted a committing magistrate for that purpose) issued a search warrant authorizing and commanding the officers named therein, to search the premises known as The Floral House, consisting of a main house, hotel and outbuildings, conducted by the defendant at Bloomfield avenue near Lane avenue, in the borough of West Caldwell, Essex county, New Jersey, for any liquor kept or stored therein, and to bring it before the Supreme Court commissioner, to be dealt with according to law.

The warrant was issued on August 12th, 1927, and was executed on August 13th, 1927, and liquor was seized upon the premises. Upon the return of the warrant, which was made by the officer who executed it, counsel moved to quash the warrant upon several grounds.

Under section 9 of the act, the Supreme Court commissioner, as a “magistrate” is charged with the performance of any judicial act prior to the indictment of a violator of the act. State v. Lowenthal, 2 N. J. Mis. R. 18.

Section 10 of the act reads:

“On and after the date when this act goes into effect, no person shall manufacture, sell, barter, transport, import, export, deliver, furnish or possess, any intoxicating liquor * * 3c »

Section 15 of the act provides as follows:

“It shall be unlawful to keep, occupy or maintain any room, house, building, vehicle or place whatsoever, where liquor is manufactured, sold, kept, stored, transported, bartered, or otherwise disposed of in violation of this act; and any such liquor found in, or on, or about any such room, house, building, vehicle or place, and all fixtures, equipment or paraphernalia had or used in connection with maintaining or conducting any such room, house, building, vehicle or place, shall be subject to seizure, forfeiture, confiscation and disposal as in this act provided. A search warrant may issue, as hereinafter provided, to search any of the premises or property herein mentioned.”

The first ground set up by the defendant in support of the motion to quash is that the warrant contains no direction to the officer executing it, that it be served in the daytime. Section 22 of the act is in the following language:

“When a search warrant is allowed, the magistrate must insert a direction therein that it be served in the daytime, unless the affidavits are positive that the property is on the person or in the place to be searched, in which case the magistrate may insert a direction that it be served at any time of the day or night.”

Section 10 of the Federal Espionage act (40 Stat. 228), provides as follows:

“The judge or commissioner must insert a direction in the warrant that it be served in the daytime, unless the affidavits are positive that the property is on the person or in the place to be searched, in which case he may insert a direction that it be served at any time of the day or night.”

These two provisions are practically identical. In United States v. Kaplan, 286 Fed. Rep. 963, the latter of the two statutory enactments was construed. The court said:

“I concur in the opinion, that a search and seizure in the night-time, where the warrant does not, in terms, contain a

direction that it may he served at any time of the day or night, are illegal, and when there is no positive evidence that the property is on the person or in the place to be searched, issuance of a warrant to search at night is illegal.”

The warrant in the instant case was executed at about eleven p. vi., on the night of August 13th, 1927. Not only did it fail to contain a direction that it be served at any time of the day or night, but it also lacked the direction that it be served in the daytime. Concerning such a direction, the statute says that it “must” be inserted.

In United States v. Borhowski, 268 Fed. Rep. 408, the court said:

“The rule is that there must be compliance with whatever formalities are required by statute. 19 Encycl. Pl. & Pr. 327; 25 Am. & Eng. Encycl. L. 147. On this point it is said in Arch. Cr. Pr. & Pl. (8th ed.) 131: “The proceedings upon search warrants should be strictly legal, for there is not a description of process known to the law, the execution of which is more distressing to the citizen. Perhaps there is none which excites such intense feeling in consequence of its humiliating and degrading effects.' ”

There must be some direction as to the time when the warrant may be served, and though the affidavits be positive that the property is on the person or in the place to be searched, nevertheless, there must be a direction that a warrant bo served “at any time of the day or night.” As was stated in United States v. Kaplan, supra:

“The warrant should be full and complete in itself. Both as to essentials and as to direction; the first because essential and the second in order that the officer serving the paper shall not have the excuse of ignorance as to his duty, and that the accused may promptly know what is the accusation against him, upon what it is based, and what the officers should do.” The result of these decisions must be that the defendant should prevail upon his present motion to quash.

It is also contended that the proceedings had upon the execution of the warrant were defective in that the officer executing the same failed to give a copy of the warrant, together with a receipt for the property taken, specifying it in detail, to the person from whom it was taken by him, or in whose possession it was found; or, in the absence of any person, failed to leave the same where he found the property. It is alleged that this omission constitutes a violation of section 24 of the act. Section 24 of the act is in very much the same language as section 12 of the Espionage act, supra.

Construing that section, the court said, in United States v. Kaplan, supra:

“I am of the opinion that a failure on the part of the officer to whom the warrant is delivered for execution, to comply with the requirements of sections 12 and 13, would not invalidate the warrant. These acts are merely ministerial, and if the officer fails in them, he may be liable in damages, but such failure does not invalidate the warrant, or the search and seizure. Rose v. United States, 274 Fed. Rep. 245 (8), 250, 251. C. C. A., 6th Circuit.

No merit is seen in this contention made on behalf of the defendant. An additional reason, however, for granting the present motion, rests upon the claim that the warrant did not contain a direction that it be executed forthwith, in accordance with the provisions of section 19 of the act. The decisions in the courts of the United States, construing a similar provision contained in the Espionage act, are to the effect that such a direction must be contained in the warrant. The purpose of such strict conformity with the requirements of the law is perfectly obvious. By the fourth amendment.to the constitution of the United States, the right of personal security against unreasonable searches and seizures is secured to all citizens. In Gouled v. United States, 255 U. S. 298, the court said, speaking of this amendment:

“It has been repeatedly decided that these amendments should receive a liberal construction so as to prevent stealthy encroachments upon or ‘general depreciation’ of the rights secured by them, by imperceptible practice of the courts, or well-intentioned, but mistakenly over-zealous executive officers.”

The warrants are quashed, the evidence obtained through their execution is suppressed, and the property is directed to be returned.


text:
    ROBERT F. REILLY, PLAINTIFF-RESPONDENT, v. WOLF COHEN, DEFENDANT-APPELANT.
    Submitted May term, 1927
    Decided November 15, 1927.
    Negligence — Injury to Plaintiff by Defendant’s Motor Truck— The Injury was Result of a Collision of Defendant’s Truck With Another Truck — Suit Tried Before, in Which Owner of Both Trucks Were Defendants, and a New Trial Ordered —Evidence Considered and No Grounds Found for Interfering With the Award Except for the Amount Included for Medical Services — This Amount Having Been Paid by Employer of Plaintiff, Should be Deducted From Amount of Award.
    On rulo to show cause.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    Eor the rule, McDermott, Enright & Carpenter.

      Contra, David T. Wilentz.

   Per Curiam.

This is the defendant’s rule for a new trial. The action was originally against Cohen and the Parmer’s Trucking Company, and judgment went for the plaintiff against both defendants on a former trial. This record presents the second trial of the case against Cohen alone, the former judgment having been reversed on his appeal. Both verdicts were in favor of the plaintiff for $20,000.

The reasons urged in support of the rule are that there was no proof of negligence in the defendant; that in any event the verdict was against the weight of the evidence; that the damages are excessive, and that the trial judge improperly directed the jury to allow a bill for medical services rendered to the plaintiff.

The action was to recover damages sustained by the plaintiff in an accident wherein he was jammed against an abutment of the Perth Amboy bridge by Cohen’s bus and severely injured. The accident occurred September 26th, 1924. The plaintiff, an employe of the Standard Oil Companjq was delivering gasoline to a gas tank required for operating an engine in the turning of the bridge. He had stopped his truck on the extreme westerly side of the bridge and was himself on the east side of the bridge directly opposite the truck. While in this position the bus of the defendant, driven by his chauffeur, approaching from the southerly end of the bridge, collided with a truck of the Farmers Trucking Company and was forced against the plaintiff and the abutment of the bridge. The allegation of negligence against the defendant’s driver is that he operated the bus at excessive speed and without giving warning of his approach.

That the proofs were legally sufficient to impose liability on the defendant is settled by the Court of Errors and Appeals in its review of the first trial, in which the evidence was substantially the same as on the present trial. Reilly v. Cohen, 4 N. J. Adv. R. 676 (not yet officially reported), and on the weight of the evidence we think the verdict should not be disturbed. The collision happened in this manner: As the bus neared the standing gasoline truck a green truck coming from the north attempted to pass the gasoline truck and entered the space between the gasoline truck and the easterly side of the bridge. It in turn was followed by the truck of the Farmers Trucking Company. As the green truck was leaving the space between the gasoline truck and the plaintiff, the bus driver entered the same narrow space and as he did so collided with the truck of the Farmers Trucking Company. The morning was a foggy one in which it is said by appellant in his brief that one could not see further than twenty feet. In this situation defendant’s driver, without being able to see what was ahead, proceeded without warning at a speed variously stated as from ten to twenty-five miles an hour through the narrow space without slowing down because, as stated by himself, he thought he had room, and that he took a chance, although he later said that if both trucks proceeded he knew there would be a collision. The danger was thus evident to the driver himself as it must be to anyone to view of the fact that the whole width of the driveway on the bridge was less than twenty-five feet. The occasion, therefore, called for the exercise of extreme caution and we think it was well within the rights of the jury to conclude that the care required of the defendant’s driver at the time was not exercised and that he was guilty of negligence.

Except as hereinafter referred to we think the damages were not excessive. The plaintiff* suffered a rupture of the kidney, a fracture of the vertebrae, lacerated ligaments, concussion of the brain and unconsciousness. He was in the hospital five weeks, suffered great pain, which still continues; was unable to work for a year, and only then as a watchman. His injuries are permanent. The accident happened over three years ago, the verdict is the second for the same amount, and the present value of the loss as assessed by the jury is not such as to justify its modification by the court except in this respect: The learned trial judge directed the jury to allow $500 for medical services if the jury found for the plaintiff. We are unable to find any evidence in support of this claim. The charge was for a bill which the attending physician had rendered at the instance of the plaintiff’s employer, the Standard Oil Company, by which company it had been voluntarily paid. There was no evidence from which liability of the plaintiff for the moneys so paid could be inferred.

The result we reach is that if the plaintiff will accept the sum of $19,500, the rule will be discharged; otherwise, it will be made absolute.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MICHAEL MUSSIKEE AND JOSEPH H. HORNE, PLAINTIFFS IN ERROR.
    Submitted May term, 1927
    Decided November 15, 1927.
    Crimes — Burning Factory Building — Fire of Incendiary Origin— Defendant Horne, President of Two Companies, One the Owner, the Other the Occupant — Evidence Circumstantial but Reasonably Conclusive — Conviction Justified.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    Eor the plaintiffs in error, Merritt Lane and Kessler & Kessler.

    For the defendant in error, Joseph L. Smith, prosecutor of the pleas; John O. Bigelow (special counsel), and J. Victor D’Aloia, first assistant prosecutor of the pleas.
   Per Curiam.

The plaintiffs in error were convicted on an indictment charging the burning, causing to be burned, and aiding and consenting to the burning, of a factory building in West Orange. This is the second trial of the case, a former conviction having been reversed in this court for error in rulings on evidence and in the court’s charge. State v. Mussikee, 101 N. J. L. 268.

The indictment is attacked on various grounds, but like objections were urged and passed on by the court when the case was here before. These will therefore not be now considered.

The principal grounds urged for reversal are that the evidence was insufficient to justify a conviction; that even if sufficient, the verdict was clearly against the weight of the evidence; that there was error in rulings on evidence and on motions for a mistrial, and finally, that the court erred in its charge, and also in its refusal to charge certain requests submitted by the defendants.

Our examination of the record leads us to the conclusion that none of the assignments of error or specifications of causes fox reversal (the case is here on bill of exceptions and also under the one hundred and thirty-sixth section of the Criminal Procedure act — Comp. Stat., p. 1863), afford ground for reversal.

The evidence produced by the state clearly required submission of the case to the jury. While circumstantial, it pointed with reasonable certainty to the defendants as guilty incendiaries. The defendant Horne was president of two corporations — one the Merritt Products Company, the other the Horne Realty Company, of which he was also the largest stockholder. The latter company owned the building, and the former occupied it, carrying on the business of manufacturing automobile accessories, &e. There was proof that the fire was of incendiary character in that it originated at different points in the factory; that the defendants had in the fall preceding endeavored to procure two other persons (witnesses at the trial) to burn the factory, and that after the fire they negotiated with these witnesses, as well as with others (who would seem to have had some information that was not pleasing to the defendants), looking to payment for the job. There was proof that the fire occurred shortly after midnight on January 6th, 3 924; that the factory was usually closed on Saturday afternoons, but that on the Saturday afternoon preceding the fire Horne was at the factory, and that a motor car resembling Horne’s was standing in front of the building that evening from nine to ten-thirty o’clock.

Wc think this, with other circumstances indicating guilty knowledge, was sufficient to justify conviction. Nor are we persuaded that the verdict should be disturbed on the weight of evidence. Upon substantially the same proofs plaintiffs in error have been twice convicted of the charge made against them, and the jury was, as we think, warranted in the conclusion it reached.

The rulings on evidence do not call for extended discussion. The statements made by Mussikee, on one hand, and Horne on the other, were carefully restricted by the court to their effect on the respective defendants by whom the statements were made. The motions for mistrial were all within the sound discretion of the trial judge, and we think their denial was not an abuse of such discretion.

The requests to charge, in so far as they properly stated applicable principles of law, were adequately dealt with by the court in its general charge.

At the conclusion of the summing up, additional requests were presented to the trial judge, by counsel for the defendant Horne, based on what counsel stated was the summing up of the prosecutor. We perceive nothing in the prosecutor’s argument justifying the presentation of the requests, otherwise presented out of time, and the court was right in refusing to consider them.

The judgment is affirmed.


text:
    STEVE DORYK, BY HIS NEXT FRIEND, ET AL., PLAINTIFFS, v. PERTH AMBOY BOTTLING COMPANY, DEFENDANT.
    Submitted June 3, 1927.
    Decided November 18, 1927.
    Negligence — Verdict Held Neither Against Weight of Evidence nor Excessive.
    On defendant’s application for a rule to show cause why plaintiffs’ verdict should not be set aside.
    .Before Justices Teenchakd, Kalisch and Katzenbacii.
    Eor the plaintiffs, John F. Toolan.

    Eor the defendant, Franh G. Turner.

   Per Curiam.

This is an application for a rule to show cause, made by the defendant, why plaintiffs’ verdicts should not be set aside. The application was first made to the trial judge, who denied it.

The reasons advanced were (1) that the verdicts are excessive, and (2) that they are against the weight of the evidence.

With respect to the latter reason it is sufficient to say that a careful consideration of the evidence shows that the verdicts are not against the weight of the evidence; that on the contrary they are plainly supported by a preponderance of the evidence.

Now, with respect to the contention that the verdicts are excessive, the evidence makes it quite plain that the verdict in favor of the infant plaintiff for $1,000 and that in favor of the mother of the boy for $500 are not excessive, but on the contrary are moderate in amount.

The rule applied for is denied, with costs.


text:
    GEORGE DETTLINGER, PROSECUTOR, v. TOWNSHIP OF OCEAN ET AL., DEFENDANTS.
    Submitted June 3, 1927
    Decided November 18, 1927.
    Municipalities — Officers—Plumbing Inspector — Removal—Reduction of Salary — Question Held Debatable and Writ Allowed.
    On rule to show canse why a writ of certiorari should not be allowed.
    Before Justices Teenchaed, Kalisch and Katzenbach.
    Eor the prosecutor, Ward Eremer.

    For the defendants, Harry Truax.

   Per Curiam.

This is a rule to show cause why a writ of certiorari should not issue to review the action or proceeding of the township committee of the township of Ocean for the removal of the prosecutor from the position of plumbing inspector for the entire township of Ocean.

The prosecutor says that he has been reduced in his position by having his territory diminished and his pay reduced. He says that the action of the board is in violation of chapter 262, laws of 1921.

We think that the case presents a debatable question and that the writ should issue. The rule will be made absolute and the writ allowed accordingly.


text:
    THE STATE BOARD OF MEDICAL EXAMINERS, PLAINTIFF, v. JACOB N. GREEN, DEFENDANT.
    Argued May 5, 1927
    Decided November 18, 1927.
    Judgments — Review of Judgment of District Court — Certiorari— Reasons Considered and Held That Nothing Justifies Writ.
    On application for certiorari.

    Before Justices Tbenciíabd and Katzenbach.
    For the applicant, J. Raymond Tiffany.

   Per Curiam.

This seems to be an application for a writ of certiorari to review a judgment against Green in the First District Court of the city of Newark.

There is laid before us an affidavit made by Green together with “reasons” for reversal.

We have examined these with care, and we conclude that there is thus presented nothing which would justify us in allowing the writ of certiorari, and the application is denied accordingly.


author: Donges, J.

text:
    Camden County Circuit Court.
    DOCK GREEN AND BERTHA ROSS, PLAINTIFFS, v. MICHAEL J. DOLIN, DEFENDANT.
    Abatement — Action in Tort — Substitution of Executrix as' Defendant of a Deceased Non-resident Who, Previous to His Death, Had Been Duly Served and Had Answered — Held, That an Executor Cannot be Sued in a Foreign State Unless There Has Been Conferred Statutory Power and That No ■ Such Statute Has Been Shown in New Jersey Giving Plaintiff Right to Suggest the Death of Foreign Defendant and Involuntarily Bring Executor Into the State to Defend.
    Action at law.
    For the plaintiffs, Walter S. Keown and George D. Bothermel.

    For the defendant, Starr, Summerill & Lloyd.

   Donges, J.

Motion is made by plaintiffs to suggest the death of defendant upon the record and to proceed against his executrix for damages for personal injuries sustained through the alleged negligence of the defendant in the operation of an automobile.

For the purposes of this motion, it is stipulated that the defendant died after the cause came at issue, following the filing of an answer by him; that, at the time the cause of action arose, and thereafter until his death, defendant was a resident of Philadelphia, in the State of Pennsylvania; that, thus domiciled in Pennsylvania, his last will and testament was proved in Philadelphia and his widow appointed executrix thereunder; no letters have been granted in this state, and, so far as appears, the executrix has taken no steps or action in this state.

■ Can the foreign executrix be involuntarily added as a party to this suit?

It is settled that an executor cannot be sued in a foreign state, unless power to be sued has been conferred by statute. Durie v. Blavelt, 49 N. J. L. 114; Rusling v. Brodhead, 55 N. J. Eq. 200; Babbitt v. Fidelity Trust Co., 70 Id. 651.

Eoreign executor may by filing an exemplified copy of his letter, bring suits in the courts of this state. Pamph. L. 1896, p. 173; Comp. Stat., p. 2265, pl. 21, § 1.

My attention has not been directed to any statute, nor have I been able to discover any giving a plaintiff the right to suggest the death of defendant and unvoluntarily bring a foreign executor into the courts of this state to defend an action of this kind. Section 3 of the Abatement act (Comp. Stat., p. 4) provides that the death of defendant may be suggested upon the record, the name of the executor or administrator entered upon the record, and the action proceed to judgment in any case where the executor or administrator might originally have been sued. In the instant case, the action could not have been maintained in this state against the foreign executrix of the defendant. Therefore, it follows that the action cannot be prosecuted in this state against her.

The motion is denied.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GEORGE VORBACH, PETITIONER, v. ROBERT HAMPTON, TRADING AS ROBERT HAMPTON & COMPANY, RESPONDENT.
    Injury to Eye — Treatment, but Blindness Followed — Evidence to Show That Blindness Might Have Resulted From a Condition Existing Previous to Accident — Weight of Evidence, However, Indicated That Blindness Resulted From Accident —Temporary and Permanent Compensation Awarded.
    On statement of facts, determination and order.
    Eor the petitioner, Henry Carless.

      For the respondent, Richard W. Balcer.

   # :Js $ * # ❖ H*

3. The said George Vorbaeh, on the 3d day of March, 1926, was in the employ of the respondent as a roofer. He had been in the employment of the respondent for twenty-two years, and at the time of the accident was a foreman at the wages of $60 a week. On the said 3d day of March, 1926, he was using a hatchet to chip the tar and slag from a roof, and while so doing some particles of the tar and slag flew up and into his right eye, causing him to experience sharp and severe pain in said right eye.

4. The said accident arose out of and in the course of his employment with the respondent, who had notice of the same on a few days after the happening thereof.

5. Soon after the happening of the said accident, two of the petitioner’s fellow-employes saw that something was the matter with petitioner’s right eye, and one of them looked into the eye and took out some fine grit. An eye wash was used by petitioner that same day, and he continued to use home remedies until about March- 14th, without relief. He then went to his family physician, who put drops in his eye and later on advised him to go to an eye specialist, which he did on or about March 25tli. He was then told by respondent to go to the office of his insurance carrier. He went there and was ordered to go to the office of Dr. Sherman, who sent him to the Newark Eye and Ear Infirmary, where he remained for about ten days, and was then treated by Dr. Sherman at his office until May 3d, 1927, on which date he was able to go back to work, his right eye then being free from inflammation, but blind.

6. It is tin denied that an accident happened to petitioner on the date alleged in the petition, and that it arose out of his employment witfi respondent, who had notice of it.

Dr. Hughes, who testified for petitioner, and Drs. Sherman and Quinaby, who testified for respondent, agreed that if petitioner’s right eye was good before the accident, that the accident could have produced the condition from which he is now suffering. Dr. Sherman gave it as his opinion, however, that on account of the pronounced atrophy of the right eye when he first examined him twenty-three days after the accident, he believed the condition to be an old one and not duo to the accident. The petitioner, however, declared he could see with the right eye just as well as with the left eye up to the time of the said accident. His daughter, Margaret Laval, said she had looked at her lather’s eyes before the accident; that they both looked the same; that she never noticed anything the matter with either of them until his right eyelid was swollen and the white of his right eye turned red after the accident.

On one hand I have the opinion of medical experts and on the other hand the positive testimony of petitioner, whom I had opportunity to observe on the witness-stand, and who impressed me as telling the truth as to the condition of his right eye before the accident and since.

7. By reason of said accident and injury the petitioner was unable to follow his usual or any other occupation from March 25th, 1926, to May 3d, 1926, being a period of five and three-sevenths weeks, for which he is entitled to compensation under the said statute for four and three-sevenths weeks at the rate of $17 per week, amounting to $75.29.

8. The said accident and injury produced in addition to said temporary disability a permanent disability, which consists of the loss of the right eye, for which he is entitled to compensation for one hundred weeks at the rate of $17 per week, amounting to $1,700.

9. I further find and determine that the services of an attorney and medical witnesses were necessary for the proper presentation of this case.

It is thereupon, on this 29th day of July, 1927, ordered that compensation for four and three-sevenths weeks' temporary disability at the rate of $17 per week, amounting to $75.29, and one hundred weeks' compensation for permanent disability at the rate of $17 per week, amounting to $1,700, and totalling $1,775.29, be paid bj*- the respondent to the petitioner.

It is further ordered that the respondent do pay to petitioner, in addition thereto, the sum of $5, to reimburse him for payment of stenographer's fees, and the sum of $50 as medical witness fees and the costs allowed by law.

It is further ordered that Henry Carless, attorney for the petitioner, be allowed as and for his legal services in conducting these proceedings, the sum of $200, to be paid by the respondent.

It is further ordered that judgment shall be entered against the respondent in favor of the petitioner in accordance herewith, and the compensation due to the petitioner to date, the stenographer’s fee, the medical witness fees, and the attorney's allowance be paid by the respondent forthwith, and that the balance of compensation be paid in accordance with the statute as the same falls due.

Harry J. Goas, Deputy Commissioner.


text:
    DOMENICO MOLLOZZI v. PUBLIC SERVICE TRANSPORTATION COMPANY.
    Decided December 1, 1927.
    Negligence — Bicycle Rider Injured by a Bus — $40,000 Award Held Excessive — Reduced to $30,000 or Rule to be Made Absolute.
    On defendant’s rule to show cause.
    Before Gttmmere, Chtee Justice, and Justices Black and Lloyd.
    Eor the rule, Henry II. Fryling.

    Contra, Francis A. Gordon.

   Per Curiam.

The plaintiff in this case, a man thirty-five years of age, while riding on his bicycle on Brunswick avenue, in the town of Linden, was run down and very seriously injured by a bus belonging to the defendant company. The trial of the cause resulted in a verdict in favor of the plaintiff, the jury awarding him $40,000 as compensation.

The only ground upon which we are asked to set this verdict aside is that it is manifestly excessive. Our examination of the proofs leads us to the conclusion that this contention is justified. If the plaintiff will consent that the verdict be reduced to $30,000, he may enter judgment for that amount. Otherwise the rule to show cause will be made absolute.


text:
    EARL RYAN, BY NEXT FRIEND, ET AL., v. CHARLES JONES ET AL.
    Decided December 1, 1927.
    Negligence — Injury to Four-Year-Old Boy by an Automobile— Award of $500 to Father and None to Boy Held to Indicate That Jury Did Not Appreciate Its Duty — If Defendant was Responsible a Proper Award to Boy Should Have Been Made.'
    On plaintiffs’ rule to show cause.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    Eor the rule, Jacob B. Mantel.

    Contra, Charles W. Weeks.

   Per Curiam.

This suit was brought by a boy, four years old, and his father, to recover compensation for injuries received by the boy through being run down by an automobile of the defendants, and for the losses sustained by the father by reason of those injuries. The trial resulted in a verdict in favor of the father, the jury awarding him $500; but it made no finding either in favor of or against the child.

This action on the part of the jury plainly indicates that its members entirely failed to appreciate the duty that they were called upon to perform. If they considered that the defendants were solely responsible for the injuries received by the boy, their obligation was to award compensation to him for those injuries. On the other hand, if they found the contrary to be the fact, then their award to the father was without legal warrant.

The rule to show cause will be made absolute.


text:
    DONATO PETRILLO v. JAMES C. WILLIAMS.
    Decided December 1, 1927.
    Negligence — Automobile Collision — Verdict for Plaintiff Found Neither Against Weight of Evidence Nor Excessive.
    On defendant’s ride to show cause.
    Before Gummbke, Chibe Justice, and Justices Black and Lloyd.
    Eor the rule, Edwin F. Smith.

    Contra, -Joseph C. Cassini.

   Per Curiam.

This suit was brought to recover compensation for injuries received by the plaintiff in an automobile collision. The plaintiff, while driving his car northerly through a street in Summit known as Eorrest drive, was injured by the collision of his car and that of the defendant, who was traveling westwardly along an intersecting street known as Hobart avenue. The trial resulted in a verdict in favor of the plaintiff, the jury awarding him $5,000. We are asked to set aside this verdict for two reasons — (1) because the finding of the jury that the accident resulted solely from the negligence of the defendant was against the weight of the evidence, and (2) that the verdict is excessive.

Our examination of the testimony sent up with the rule leads us to the conclusion that we would not be justified in interfering with this verdict for either of the reasons specified.

The rule to show cause will be discharged.


text:
    ALFRED A. SEDDON, BY NEXT FRIEND, v. FRED H. HILL.
    Decided December 1, 1927.
    Negligence — Injury to Pedestrian by an Automobile — Award of $1,000 Held, Under the Circumstances, to be Inadequate.
    On plaintiff’s rule to show cause.
    Before- Gummeee, Chief Justice, and Justices Black and Lloyd.
    For the rule, John IP. Palmer.

      Contra, John W. McGeehan, Jr.

   Per Curiam.

This was an action brought by Alfred A. Seddon, a boy of nineteen, to recover compensation for personal injuries received by him through being run down by an automobile driven by the defendant. The jury awarded the boy $1,000, and he now asks us to set aside the verdict as inadequate.

The proofs showed that the tibia and the fibula of his right leg were fractured; that his leg was in a cast for six weeks; that when the cast was removed it was found that there had been no knitting of the bones; that another cast was put on, and later a third one; that the bones finally united, but that the injured leg is not entirely straight. The proofs further showed that the boy had suffered a great deal of pain from muscle soreness, as well as from the break itself, and that the pain still persists to some extent; that after he left the hospital, where he had been confined for sixteen weeks, he had to use crutches for a month; that he was not able to resume work until six months after the happening of the accident; that he had been emancipated by his father, and was entitled to his own earnings, which amounted to $75 a month.

In view of the facts above recited, it seems clear to us that plaintiff’s contention that the sum awarded to him by the jury as compensation for his injury is grossly inadequate is fully justified.

The rule to show cause will be made absolute.


text:
    AUGUST W. ROSENVINGE v. OSCAR ERLANDSEN AND ROBERT R. CROWELL, PARTNERS, ETC.
    Decided December 1, 1927.
    Negligence — Injury to Plaintiff by an Automobile — Evidence Examined and Held, That the Award of $400 is Not so Grossly Inadequate That it Should be Set Aside.
    On plaintiff’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    Eor the rule, Jacob 8. Karkua.

    Contra, Edward A. Markley and Charlea W. Broadhursi.

   Per Curiam.

This suit was brought by the plaintiff to recover compensation for injuries received by him through being knocked down by an automobile of the defendants while he was unloading mail from a trolley car. The trial of the cause resulted in an award to him by the jury of $400, and his claim is that the verdict was grossly inadequate.

Our examination of the medical testimony, as well as that of the plaintiff himself, satisfies us that his injuries were very slight. Apparently all that happened to him was a blow on the knee, which caused no fracture, but merely a eontusion, or bruise, and a slight strain. His physician’s bill was $29, and the jury was justified in finding from the testimony that the plaintiff had entirely recovered from the injury within two months after the occurrence of the accident. In view of these facts, although the award of the jury is small, we cannot see that it is so grossly inadequate as to justify us in setting it aside.

The rule to show cause will be discharged.


text:
    THE STATE v. EDMUND JONES.
    Decided December 1, 1927.
    Crimes — Sale of Liquor — Attitude of Court Toward Defendant’s Counsel Submitted as Ground for Reversal — Counsel Alleges That He was Improperly Forced Into His Seat by a Court Officer at the Direction of the Court — Circumstances Considered, and Held, That if the Defendant was Prejudiced His Counsel was Responsible — Other Grounds for Reversal Held Without Merit.
    On error to the Morris Quarter Sessions.
    Before Gummeee, Chief Justice, and Justices Black and Lloyd.
    Eor the plaintiff in error, Seth E. Ely.

    Eor the state, prosecutor of the pleas.
   Per Curiam.

The grand jury of Morris county indicted the defendant, Jones, for possessing intoxicating liquor for beverage purposes and for selling the same for such purposes. The trial of the cause resulted in his conviction, and he thereupon sued out the present writ of error.

The first ground for reversa] specified in the reasons filed is that the trial court, having permitted “counsel for the defendant to be forcibly thrown into his chair and mistreated and abused in the presence of the jury, to the prejudice of the defendant,” then refused to withdraw a juror and declare a mistrial, upon the application of the defendant’s counsel, based his alleged forcible seating. An examination of the state of the case bearing upon this matter disclosed the following situation: A Mrs. Hubert was being examined on behalf of the state, and testified that her husband frequented the defendant’s place, and that he frequently came home drunk. She was then asked if she knew where he got the liquor, to which she answered, “Yes.” Then followed this question: “How do you know?” Counsel for defendant objected to the question, and the court overruled the objection, allowing counsel an exception to the ruling. The question was then repeated, and the witness answered: “Why, my son has often went there with his father, and his father has went in sober and come out drunk.” Counsel for defendant then said, “Just a moment.” Apparently he was on his feet when he said it, for the court said in reply: “She is telling how she knows: she may do it. Sit down.” Counsel replied, “I want to register my complaint.” The court again said, “Sit down;” to which counsel replied, “I have the right”The court then said, “Mr. Beddows, will you put him down ?” Counsel, disregarding the order of the court, then proceeded, saying, “I have the right to register my objection.” This, as we have stated, he had already done, and an exception had been allowed to him to the court’s ruling upon it. “Thereupon,” to recite from the state of the case, “Mr. Beddows, a court officer, placed Mr. Ely in his chair by the counsel table.” It is apparent from this recital that the ground for reversal above specified is based upon alleged facts that have no existence; namely, that “counsel for defendant was forcibly thrown into his chair and mistreated and abused.” The trouble seems to have been that counsel considered that he was superior to the court in the determination of the methods to be pursued by him in the trial of the cause, and that the court disagreed with him and undertook to demonstrate the unsoundness of counsel’s position. The method adopted by the court seems to us not legally objectionable under the circumstances, and, if the occurrence prejudiced the defendant in his trial on the merits, his counsel alone is responsible for that result. We conclude, therefore, that the motion to discharged juror and direct a mistrial was properly denied.

The only other grounds upon which a reversal is asked are that the court refused to direct an acquittal of the defendant at the close of the state’s case, and again at the close of the entire case. The sole basis upon which these motions were rested was that there was no evidence that would support the charge made in the indictment. Our examination of the proofs satisfies us that the contrary was the fact, and that the motions were properly refused.

The judgment under review will be affirmed.


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    KNICKERBOCKER FUEL COMPANY v. LOUIS STULTZ, Jr.
    Decided December 1, 1927.
    Sale of Goods — Action to Recover Value of Three Cars of Coke— Defense That Goods Were Not as Ordered — Verdict for Plaintiff — Grounds for Reversal Considered and Rule to Show Cause Discharged.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    Eor the rule, Jacob 8. Earlcus.

    Contra, Theodore D. Parsons.

   Per Curiam.

The plaintiff brought this action to recover the reasonable value of three carloads of reclaimed coke, purchased from it by the defendant and shipped to him by the company. The ordering of the coke was admitted. The fact that the defendant refused to accept it on arrival at the point of delivery was also admitted. The defense was that the defendant’s refusal to accept the shipments was justified, for the reason that the coke sent him was not in accordance with the specifications contained in the order for it, and that it was not usable for the purposes for which it was ordered, and for which the plaintiff furnished it. The trial resulted in a verdict in favor of the plaintiff, and thereupon the present rule was allowed to the defendant, and, upon his application, the right of appeal on exceptions taken by him at the trial was reversed to him by the rule.

The first ground upon which the defendant seeks to have this verdict set aside is that it is against the weight of the evidence; in other words, that the coke furnished was not of the character which was ordered by him, and which was agreed to be supplied to him by the plaintiff. Our examination of the proofs in the case leads us to the conclusion that this contention is not well founded; that, on the contrary, the verdict is supported by the preponderance of the evidence.

The next point argued in defendant’s brief is that comments made by the judge on the testimony constitute reversible error. We find nothing of merit in this contention. The criticism is directed at the statement of the court, made in expressing the reasons which led it to deny the defendant’s motion to nonsuit. It is entirely proper for a judge to state the reason upon which his judicial action is based, even if the reason stated does .not justify his action.

The next contention made in defendant’s brief is that the trial court was in error in refusing the defendant’s motion to nonsuit. This, however, is not embraced in the reasons upon which the application for the new trial is based, and which are as follows: (1) That the verdict is contrary to the weight of the evidence; (2) because the charge of the court was erroneous, and (3) because the court admitted illegal evidence for the plaintiff. Moreover, an exception was taken to the refusal to nonsuit, and that exception is reserved by the present rule. It follows, for the reasons indicated, that the defendant is not entitled to have this point considered and determined by us.

The next point argued is that it was error for the trial court to allow the plaintiff to amend his pleadings. But this point, like the one just preceding, is not embraced in the reasons for a new trial. Moreover, no objection was taken to the allowance of .the amendment when it was granted by the court; and this, of course, was an implied consent by the defendant to such allowance.

Lastly, it is argued that there were certain legal errors contained in the charge to the jury. The instructions referred to by counsel under this point were made the subjects of exceptions, and the exceptions are reserved in the rule. Eor this reason we decline to consider them.

The rule to show cause will be discharged.


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    GRACE ELLEN SOLLY ET AL., EXECUTORS, ETC., v. UNION TRANSFER COMPANY.
    Decided December 1, 1927.
    Negligence — Death of Plaintiffs’ Testator Through Collision of Automobiles — Judgment for Plaintiff — Award $25,000 — Held, That Award was Not Excessive and That Jury was Justified in Finding That There was No Contributory Negligence.
    On defendant’s rule to show cause.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    Eor the rule, Starr, Summerill & Lloyd.

      Contra, William J. Kraft and Albert S. Woodruff.

   Per Curiam.

This suit was brought to recover the pecuniary loss sustained by the next of kin through the death of William Solly, who was killed on October 28th, 1925, when his automobile, which he was driving, collided with a truck belonging to the defendant corporation at the intersection of Third and Benson streets, in the city of Camden. The plaintiffs’ claim was that the negligence of the driver of defendant’s truck was the sole cause of the accident which resulted in Solly’s death, and the jury so found. Based upon this finding, a verdict was rendered awarding the plaintiffs the sum of $25,000, and the defendant thereupon obtained the present rule to show cause.

The first contention made by the defendant before us is that the award of damages is excessive. We do not think so. The widow was the only next of kin of decedent. She was twenty-five years old at the time of the accident. Her husband was twenty-eight years old. They were each of them in good health, and each had an expectancy of life of approximately thirty-five years. The husband seems to have been a man of unusual business ability. On the 1st of January, 1924, he was employed by the .Continental Life Insurance Company as one of its agents. During that year he earned in salary and commissions the sum of $3,741. During the ten months of the year 1925 preceding his death his salary and earnings totalled $7,745, more than double his first year’s earnings. That the wife of such a man suffers a large pecuniary loss by his death cannot be doubted; and to us the award of the jury seems to be a reasonable one.

The only other contention submitted by the defendant is that the verdict is against the weight of the evidence on the question of the contributory negligence of the decedent. Our examination of the proofs lead us to the conclusion that the jury was justified in finding that none of the alleged acts of negligence on the part of the decedent discussed in the brief of the defendant were contributing causes to the accident.

For the reasons indicated, the rule to show cause will be discharged.


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    GEORGE GROSSMAN, PLAINTIFF-RESPONDENT, v. MILTON BRICK AND FANNIE BRICK, DEFENDANTS-APPELLANTS.
    Submitted May term, 1927
    Decided November 25, 1927.
    Sale of Real Estate — Recovery of Deposit and Search Fees — ■ Appeal From Court’s Rule to Strike Out Defendants’ Pleas and Counter-claim, and for Summary Judgment — Plaintiffs Alleged Defendants’ Inability to Give Good Title — Plaintiff’s Affidavits Not Contradicted by Defendants’ Proofs — Counterclaim Being for Loss on Resale, Must Stand or Fall on Defendants’ Inability to Carry Out Contract — Judgment Affirmed.
    On appeal from the Hudson County Court of Common Pleas.
    Before Gumaibee, Chief Justice, and Justices Black and Lloyd.
    For the appellants, Gollins & Gordin.

    For the respondent, Gross & Gross.

   Per Curiam.

The defendants appeal from a judgment entered against them in the Court of Common Pleas of Hudson county on a motion to strike out defendants’ pleas and counter-claim, and for summary judgment.

The case of the plaintiff was to recover a deposit of $1,000 and $400 search fees; the deposit having been made under an agreement of purchase of real estate on the Hudson Boulevard, and the search charges incurred in examining the title which turned out to be defective. The answer admitted the agreement and the payment of the deposit, but averred that the defendants were able and willing to convey in accordance with the terms of the agreement. The counter-claim was for a loss on a resale of the property and fraudulent representation by the plaintiff that the title to the property was defective, in consequence of which the defendants lost opportunity of sale at a more advantageous price.

The basis of the plaintiff’s action was that tire defendants were unable to give a good title to all of the land embraced in the contract, the proofs establishing that a strip of land six inches in width and seventy-five feet in depth embraced in the description of the property contracted to be sold had been conveyed in March, 1885, by the then owner to Victor and Charles Meyer, and that the Meyers conveyed to other persons, strangers to defendants’ title.

Efforts appear to have been made by defendants’ predecessors in title to acquire this strip from the owners, but these efforts came to naught because the deeds to this and either did not purport to convey the fee, or because the grantor was without power to convey. (See records produced and plaintiff’s affidavits).

In this situation the court struck out the answer and gave summary judgment for the plaintiff for the sum of $1,440.50 and the costs of suit. The record presents no proofs in contradiction of the facts presented by the plaintiff’s affidavits. From these latter it clearly appears that the defendants were unable to convey according to their agreement, and it follows that the plaintiff was entitled to recover the deposit money.

It is urged that the claim for the search fees was for unliquidated damages and that to this extent at least the judgment was wrongful. The inclusion of the $400 item is not specifically urged as ground of reversal, hut, assuming that it is adequately presented, we think the contention is without merit. By section 57 of the Practice act of 1912, page 394, it is provided that “when an answer is filed in an action brought to recover a debt or liquidated damages arising (a) upon contract express or implied, or (c) upon a statute, the answer may be struck out and judgment final may be entered upon motion and affidavit as hereinafter provided, unless the defendant by affidavit or other proofs shall show such facts as may be deemed by the judge hearing the motion sufficient to entitle him to defend.” “The reasonable oxpenses of examining the title and making survey” are expressly allowed to a purchaser as against a vendor defaulting by reason of defect in title by section 1, act of 1915, page 316. We think the charges in the present cáse constitute liquidated damages within the meaning of the Practice act. Sullivan v. Moffatt, 68 N. J. L. 211; Laura v. Puncerelli, 91 Id. 38; affirmed, 92 Id. 518.

We conceive that the order striking out the counter-claim as well as the answer was properly made. The counter-claim must stand or fall on the defendants’ ability to carry out their contract. If, as has been shown, the record discloses that the defendants were unable by reason of a defect in their title to convey in accordance with the terms of their agreement with the plaintiff, obviously a counter-claim based upon the latter’s refusal to take title cannot be sustained; likewise a claim for damages arising from the plaintiff’s statements to would-be purchasers that the title was defective.

Lastly, we are urged to reverse the case on the ground that the defendant presented affidavits controverting those filed on behalf of the plaintiff, and that in consequence an issue of fact was raised which could only be passed on by a jury. Unfortunately for this contention the record discloses no such situation. The order made by the court expressly recites the proofs offered by the plaintiff and states that no affidavits were filed on behalf of the defendants, nor other proofs submitted in their behalf. When later a motion was made to amend the rule for judgment by reciting the filing of affidavits the. motion was refused, the court, as would appear from the order recited in respondent’s brief, reiterating that no such affidavits were presented.

Counsel for the appellants attempts to meet this situation by asking this court to consider under section 28 of the Practice act of 1912, page 382, certain alleged affidavits controverting some of the facts set forth by the plaintiff’s proofs, the application being based on the affidavit of appellants’ counsel that the defendants’ affidavits were presented to the trial judge and ignored by him.

Counsel’s affidavit was taken under a rule allowed by a justice of the Supreme Court in which it was ordered “that the defendants-appellants have leave to take additional evidence by affidavit or depositions to be used on the argument of the appeal.” The twenty-eighth section of the Practice act (supra) provides that “upon appeal the court in which the appeal shall be pending may in its discretion take additional evidence by affidavit or deposition or by reference; provided, that the error complained of is lack of some matter capable of proof by record or through incontrovertible evidence, defective certification or failure to lay the proper foundation of evidence which can, in fact, without involving some question for the jury, be shown to be competent.”

It is quite apparent that the statute affords no ground for this application. Appellants’ purpose is not to supply some matter capable of proof by additional and incontrovertible evidence, but it is to controvert the record as it appears under the hand of the judge. Surely the twenty-eighth section of the Practice act was not passed for any such purpose. Such a practice would result in amending the record without giving the judge upon whose certificate the record is verified an opportunity to be heard, and would be wholly subversive of the administration of justice.

Por the reasons herein expressed the judgment will be affirmed.


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    CATHERINE MULLIGAN, ADMINISTRATRIX, ETC., v. PAUL LOSI.
    Decided December 1st, 1927.
    Negligence — Death Resulting From Being Run Over by an Automobile — Verdict Which Held Defendant Negligent and Exonerated Deceased From Contributory Negligence Found Not to be Erroneous.
    On defendant’s rule to show cause.
    Before Gummere, Chile Justice, and Justices Black and Lloyd.

      For the rule, Mark Townsend, Jr.

      Gonira, Quinn, Parsons & Doremus.

   Per Curiam.

This suit was brought by the plaintiff, under the Death act, to recover the pecuniary loss sustained by the next of kin, through the death of Terrance J. Mulligan, who was run over and killed by an automobile of the defendant on Main street, in the town of Fairhaven, Monmouth county. The trial resulted in a. verdict in favor of the plaintiff, the damages being assessed at $13,320.

The principal ground upon which we are asked to set aside this verdict is that the finding of the jury exonerating Mulligan from contributory negligence, and also its finding that the defendant was negligent, were each of them contrary to the weight of the evidence. The defendant was driving his automobile in an easterly direction along Main street. The decedent was riding a bicycle in Locust street, which ran at right angles to Main street, and entered the point of intersection at about the same time as the defendant. The decedent approached the intersection of the two streets from the defendant’s right, and had the right of way under normal conditions. Our examination of the testimony sent up with the rule leads us to the conclusion that the jury was justified in its findings, but on the question of the negligence of the defendant and the contributory negligence of the decedent, and that the verdict ought not to be disturbed because of the alleged lack of evidence to support these findings.

Next, it is argued that the court erred in charging the law of negligence, because it failed to state expressly that the negligence of the defendant, if it was shown, must have been the natural and proximate cause of the collision. We think there is nothing in this contention. The whole charge was based upon the necessary implication that the plaintiff could not recover unless the negligence of the defendant, if it was shown to exist, was the sole and proximate cause of the collision.

Lastly, it is argued that the verdict of the jury is grossly excessive. Our examination of the proofs, bearing upon this question, leads us to the conclusion that it is not so manifestly excessive as to justify our interference.

The rule to show cause will be discharged.


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    PAUL KAHN, RELATOR, v. EDWARD A. McGRATH, JUDGE OF THE ELIZABETH DISTRICT COURT, AND GEORGE J. SMITH, CLERK OF THE ELIZABETH DISTRICT COURT, DEFENDANTS.
    Submitted June 2, 1927
    Decided November 25, 1927.
    On rule to show cause why a writ of mandamus should not issue.
    Before Justices Teenchard, Kalirch and Katzbnbach.
    Eor the relator, Michael H. Feldman.

    Eor the defendants, Henry IValdman.

   Per Curiam.

We incline to think that there is presented by the matters laid before us sufficient to justify the award of an alternative writ of mandamus, and it will be awarded accordingly.


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    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MAE MIDDLETON, PLAINTIFF IN ERROR.
    Submitted May term, 1927
    Decided November 25, 1927.
    Crimes — Selling Liquor — No Error Found.
    On writ of error.
    Before Gummeee, Chief Justice,-and Justices Black and Lloyd.
    Eor the plaintiff in error, Robert Peacock.

    Por the defendant in error, George M. Hillman.

   Per Curiam.

Appellant was convicted in the Burlington County Court of Quarter Sessions of selling intoxicating liquor contrary to law. Appealing, six assignments of error are filed, but three of which are now urged for reversal. The first is that the verdict was against the weight of the evidence, and the second that there was no corroboration of the stage’s witnesses. The testimony of these witnesses is criticised on the ground that they were paid operatives employed by the state. They were not necessarily to be disbelieved for that reason, nor was corroboration essential. That the jury was justified in crediting their testimony we have no doubt. These assignments are, therefore, without merit.

The remaining assignment is that the court erred in instructing the jury as to the law of reasonable doubt. The language used by the learned trial judge was substantially that approved by the Court of Errors and Appeals in the case of State v. Linker, 94 N. J. L. 411, and numerous decisions in this state prior thereto and since.

The judgment is affirmed.


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    THE STATE, EX REL. JAMES HAHNE, PROSECUTOR, v. JUVENILE COURT OF ESSEX COUNTY, RESPONDENT.
    Submitted June 2, 1927
    Decided November 25, 1927.
    Children — Abuse and Failure to Support — Defendant Convicted in Juvenile Court — Complaint and Minutes of Court Examined — Held, That Complaint was Rather Informal to Say the Least, and That the Confusing and Imperfect Record Reveals No Evidence That the Defendant was Charged With the Care of the Child — Other Criticisms on Record.
    On certiorari, &c.
    Before Justices Trenchabd, Kaliscii and Kmtztwbach.
    Eor the prosecutor, Jacob L. Newman (Lionel P. Kristeller, on the brief).
   Per Curiam.

James Hahne, the prosecutor of this writ, was arrested on a charge that “being the parent, guardian or person having the care, custody or control of the minor herein named, did abuse, abandon and was cruel to and neglectful of said minor, named James, seven, by failing to support said child contrary to the provisions of Lin act concerning the welfare of children, approved April 8th, 1915, and the supplements thereto and amendments thereof / ”

It must he conceded that this complaint was rather informal to say the least.

The minutes of the court laid before us are likewise rather remarkable. The “copy” thereof, after setting forth that “Mrs. Lila Merkel, the petitioner in the above entitled ease, this day appearing, the court did look over all the papers,” and then concludes “whereupon the court did not decide this case and the court did adjudge the defendant, James Hahne, to be guilty or neglect and cruelty to his child, James, aged seven years; whereupon the court did order that the said defendant be committed to the care and custody of the probation officer of Essex county for a period of one year on condition that he pay the sum of $10 a week for the support of said child.”

Much fault is found by the prosecutor of this writ with this conviction. Eor present purposes it is sufficient to say that our examination of the confusing and imperfect record laid before us results in the conclusion that the order and conviction is not supported by any legal evidence. There was, so far as we perceive, no evidence that Hahne was either the parent of the child or that he was its guardian, or that he ever had the care, control or custody of such child, whom it .seems was the son of Hahne’s former wife (from whom he had long been divorced), born before her marriage to Hahne; nor was there any evidence of cruelty on his part.

The conviction and order brought up will be set aside, without costs.


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    CITY OF PATERSON, PROSECUTOR, v. JAMES BAKER ET AL., CONSTITUTING THE STATE BOARD OF TAXES AND ASSESSMENT ET AL., RESPONDENTS.
    Submitted May 13, 1927
    Decided November 11, 1927.
    Taxes and Assessments — Owners Appeal to County Board, Which Reduced Assessment — City Appeals to State Board, Which Sustains County Board — On City’s Certiorari it is Held That State Board, in Effect, Did Not Consider Evidence Produced by Prosecutor, That This Should be Considered and to That End There Should be a Rehearing Before the State Board.
    On writ of certiorari.

    Before Justices Tbenchaed, Kalisoh and Katzenbach,
    Eor the prosecutor, Benjamin J. Spitz.

      For the respondents, James J. Murner.

   Per Curiam.

This case is before us on a writ of certiorari obtained, by the city of Paterson to review the action of the state board of taxes and assessment with reference to the valuation for assessment purposes of property in the city of Paterson, designated as Nos. 199-203 Market street. In the month of October, 1925, the property was assessed for the purposes of taxation for the year 1926 at $92,400 for the land and $35,000 for the building. The owners took an appeal to the Passaic county board of taxation which reduced the assessment on the land to $73,920, and on the building to $30,000, and canceled an assessment of $750 on personalty. The city of Paterson appealed to the state board. The state hoard heard the appeal at the court house in Paterson on November 5th, 1926.

The city offered the testimony of Francis Boyle, Frank W. Furrey, Horren Hausen, John F. Lee and Jacob Silverman. Boyle was the assessor who fixed the valuation. The others were expert witnesses. A motion was made at the conclusion of the city’s testimony to dismiss the petition on the ground that the city had failed to offer any scintilla of evidence of the real market value of the property. The expert witnesses mentioned had sworn to a land value of $2,000 a front foot. There was also testimony that $35,000 was the value of the building. Decision upon this motion was reserved. The owners then called Bernard Freimaxk, a real estate expert. He was not, however, permitted to testify on the matter for which he was called and we fail to find in his testimony any valuation of the property given by Mm. Jacob Munzer, one of the owners of the property, was called as a witness. He testified that he did not think that the land was worth any more than $73,920 and the building $30,000. He testified that the value of the land and building was $85,000 hut admitted that it was mortgaged for $100,000. The record fails to disclose any decision on the motion reserved hut the record shows that the assessment made by the county board of taxation was affirmed and appeal dismissed.

We have reached the conclusion that the state board, in effect, allowed the motion made in behalf of the owners and did not consider the evidence produced by the prosecutor. This should have been considered. There should be a rehearing of this case before the state board.

The assessment fixed by the state board will be set aside and the case remanded to the state board for a rehearing.


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    GERTRUDE DEVINE ET UX., PLAINTIFFS, v. WILLIAM F. MASSAPUST ET UX., DEFENDANTS. ELLA DEVINE, BX NEXT FRIEND, PLAINTIFF, v. WILLIAM F. MASSAPUST ET UX., DEFENDANTS. ALBERTA DEVINE ET UX., PLAINTIFFS, v. WILLIAM F. MASSAPUST ET UX., DEFENDANTS.
    Argued May 3, 1927
    Decided November 23, 1927.
    Negligence — Injury Caused by An Automobile Collision — Testimony Showed That Car Belonged to Defendant Wife, and That it was Being Used by Defendant Husband in His Own Business and Against the Instructions of the Wife — Rule Made Absolute as to Wife, Dismissed as to Husband.
    On rule, &c.
    Before Gummere, Chief Justice, and Justices Black and Lloyd.
    For the plaintiffs, William H. Osborne.

    For the defendants, Edwards & Smith.

   Per Curiam.

These three suits were brought to recover damages fox personal injuries, and damages to an automobile.

They grew out of an automobile collision on April 5th, 1926, at the intersection of Washington and South streets, Elizabeth, New Jersey.

The cases were tried together resulting in verdicts for the plaintiffs. The defendant obtained rules to show cause and writes down four reasons for a new trial in each case, which are identical.

Only one of the reasons calls for any discussion, viz., the court refused to direct a verdict for the defendant Erieda Massapust when requested so to do.

The undisputed testimony shows that the defendants’ automobile that was in the collision was owned by the defendant Erieda Massapust, and at the time, it was being driven by her husband, William E. Massapust, on a trip to White Sulphur Springs, New York, to see his brother. The defendant Erieda Massapust told him not to take the automobile, but to go by train. She did not know that he had taken the automobile until the following Tuesday — the accident happened on Monday.

This brings the case squarely within the ruling of Doran v. Thomsen, 76 N. J. L. 754; that was a case of father and daughter. This is a case of husband and wife. And the eases of Lynch v. Zeilenbach, 4 N. J. Mis. R. 97; Eldridge v. Calhoun, 95 N. J. L. 168.

The rules in each case are made absolute as to Erieda Massapust and discharged as to William E. Massapust.