author: Pek Cukiam.

text:
    GEORGE HEYER, PLAINTIFF, v. JUSTUS E. EIGENRAUCH, DEFENDANT.
    Submitted January 31, 1930
    Decided May 1, 1930.
    Before Justices Pakkee, Black and Bodine.
    Eor the plaintiff, Theodore D. Parsons.

    For the defendant, James D. Carpenter, Jr.

   Pek Cukiam.

This case arises out of a collision between two automobiles on the road running eastward from Keyport to Red Bank at Middletown. The plaintiff, who was driving his own car, sued for personal injuries and damage to the car, and the defendant counter-claimed for a corresponding cause of action. The jury found against the defendant on both issues and this rule is to review that finding.

The plaintiff, with two brothers-in-law, was returning from the funeral of his grandfather in South Jersey and, before reaching the place of collision, had been traveling northward on a road known as the Nut Swamp road which enters the main highway to Long Branch from the south at Middletown but does not cross it. The plaintiff’s home was at Belford and to reach it his route lay from the junction of the Nut Swamp road with the main highway eastward some three or four hundred yards to a point where the road to New Monmouth branches off nearly at right angles to the north. The accident occurred about at the corner' of the main highway and the New Monmouth road. The evidence is greatly in disagreement but there is no doubt that the defendant, who was driving a Chrysler roadster of 1928, was proceeding westward on the main highway and the plaintiff rounded eastward from the Nut Swamp road into the main road and then undertook to round again to the northward from the main road into the New Monmouth road. The witnesses for the plaintiff were himself and his two brothers-in-law, and those for the defendant were himself and his two nephews who were riding in the car with him; a brother, who examined the plaintiff’s car after the accident; a builder named Pease and his wife, who lived directly opposite the end of the New Monmouth road, the former testifying that he had seen the accident; and the Rev. Mr. Bleakney, who gave testimony with respect to the position of the cars after the accident. The testimony of the plaintiff and the two passengers in his car was that they had emerged from the Nut Swamp road into the main road and turned eastward and, after reaching a point suitable for turning north into New Monmouth road, the plaintiff had turned his car after looking behind to see that nothing was coming from the rear, and stopped to observe conditions to the eastward; that seeing nothing except the defendant’s car, which was some hundreds of feet away, the plaintiff threw his car into low gear and started across the road into New Monmouth road and that his front wheels were off the concrete of the main road when the defendant’s car apparently endeavored to cut across in front of it and the collision resulted in which the front and right side of the plaintiff’s car were smashed with similar damage to the left side of the defendant’s car. After the accident the defendant’s car in some way had gotten beyond the New Monmouth road to a point on the north side of the main highway between two trees described as the second and third trees, and the plaintiff’s car had been turned completely around with its rear facing the'rear of defendant’s car.

The defendant’s claim is a most unusual one. It is in substance that as he undertook to cross the end of New Monmouth road the plaintiff’s car was more than one hundred and twenty-five feet distant to the west and that just when he got past the New Monmouth road, the plaintiff’s car swerved over to the northward as though to cut ahead of him and he, the defendant, swerved his own car further to the north and went into the ditch between the trees designedly in order to avoid being struck, but that this manoeuver was unavailable to avert the collision.

On this flat contradiction of testimony as relates to the circumstances of the accident we are asked to decide that the verdict is so clearly against the weight of the evidence that, under the rules applicable in such cases, it ought to be set aside. We confess that we are quite unable to see the force of this argument. The plaintiff was well acquainted with the locality and, while the jury in all likelihood were entitled to take his story of the meticulous care he said he had exercised in making the turn in crossing the road with a certain amount of allowance, nevertheless the claim of the defendant that the plaintiff started to turn across the road at a point some forty or more feet west of the intersection of the New Monmouth road and in such a way as to run into the left side of the defendant’s car at another point also considerably west of that road, contains elements of inherent improbability which in our estimation justified the jury in finding as they did. It may be conceded that after the accident both cars were west of New Monmouth road but that is readily accounted for on the theory that the momentum of the defendant’s car dragged them both a number of feet before they came to a rest. We are by no means persuaded that this verdict was against the weight of the evidence and as the three reasons filed all relate to that point the rule to show cause will be discharged.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MARIE LEVY, PLAINTIFF-RESPONDENT, v. WALTER J. HURLEY, DEFENDANT-APPELLANT.
    Submitted October 11, 1929
    Decided April 28, 1930.
    Before Justices Trenciiard, Lloyd and Case.
    Eor the appellant, Richard W. Stout.

    Eor the respondent, Stolces, McDermott & Hartshorne (Harold McDermott, of counsel).
   Per Curiam.

This is an appeal by the defendant from a judgment entered upon the verdict of a jury for the plaintiff in the Monmouth Common Pleas Court.

A rule to show cause why the verdict should not be set aside was allowed and afterwards was discharged by the trial court. The rule to show cause contained a provision that it should not be a waiver of any grounds of appeal existing in favor of defendant. Just what the reasons considered on the rule were, we do not find disclosed by the state of the case. But that for present purposes is immaterial. Eor looking at the grounds of appeal we find none which can possibly help the appellant. None of them point out any cause for reversal ¡with sufficient precision to apprise the court or opposing counsel of the injury complained of.

In order, however, to be sure that no injustice has been done, we have considered the matter which has been argued in appellant’s brief, and find no merit in it.

The judgment will be affirmed, with costs.


author: Mackay, J.

text:
    Passaic County Circuit Court.
    JOSEPH TIGLER, PLAINTIFF, v. FABRICS FINISHING CORPORATION, DEFENDANT.
    Eor the motion, Harry Joelson.

      Contra, Peter Cohen.

   Mackay, J.

This is an application for the removal of two District Court cases to the Circuit Court because defendant has filed a counter-claim in the sum of $40,000. The plaintiff was hired by defendant for one year commencing February 14th, 1929, by written agreement at a salary of $10,000 a year, payable in the sum of $192.50 each week.

Prior to the expiration of one year plaintiff was discharged as incompetent. Plaintiff, by two suits in the District Courts, seeks to recover two separate wage payments alleged to be due. Defendant in its counter-claim alleges that because of the incompetence and negligence of plaintiff that up to December 31st, 1929, claims totaling $28,724.13 had to be paid to customers and the balance $11,275.87 would have to be paid.

Counsel for plaintiff contends these two cases cannot be removed first, because chapter 152, laws of 1928, provides that damages must be liquidated, and second, that although the action is for breach of contract, nevertheless, defendant’s counter-claim is for unliquidated damages.

In Heckscher v. Trotter, 48 N. J. L. 419, 429, Mr. Justice Dixon says:

“The general rule adopted by all the courts is consistent and uniform, that where the cause of action arises on a debt or money demand, or where it sounds in. damages, but the damages are capable of being ascertained with certainty by mere arithmetical computation, 'the damages are liquidated.” The damages are unliquidated, “where the cause of action consists merely in a right to recover some damages, but those damages are general, indefinite and undetermined, or incapable of being reduced by calculation to a proper degree of certainty without the intervention of a jury.”

The case of Moore v. Richardson, 65 N. J. L. 532, cited by defendant, does not seem to me to be in point because that was a delivery of horses to the defendant upon an express contract that the defendant would pay a certain price for those horses and that the horses were to remain the property of the plaintiff until paid for. The other case cited by defendant in his brief (MacPherson v. Mackay, 91 Id. 473), does not appear to apply as I read the facts therein contained. Defendant further states in his brief:

“In the case at bar the amounts paid by defendant as a result of the plaintiff’s ineompetency are exact and have been actually reduced to certainty.”

That is true. It is not the test, however, because a similar situation arose in the case of Godkin v. Bailey, 65 Atl. Rep. 1032, and the plaintiff sued in assumpsit for the price of goods sold and delivered. The defendants pleaded the general issue, and gave notice that they would claim an off-set for the difference in price paid by them for lumber which the plaintiff had failed to deliver. At the trial the defendants offered to prove a failure of the plaintiff to deliver lumber under a contract several years before the sale of the goods for which the suit was brought, and that by reason of this failure the defendants were obliged to go into the market where the prices for lumber had risen and purchase other lumber to take its place; that consequently the defendants were entitled to compensation for the loss sustained, and to put that loss in as an off-set. The Chief Justice overruled this offer of the defendants upon the ground that the act providing for set-off limits the right to liquidated damages.

Mr. Justice Swayze, writing the opinion in this case for the Court of Errors and Appeals said, inter alia:

“In an action for damages for failure to deliver goods, the plaintiff is entitled to recover, not merely the difference between the contract price and the market price which he is obliged to pay, but is also entitled to recover special damages for the breach of the contract, including loss of profits. Wolcott v. Mount, 36 N. J. L. 262. Clearly these special damages for breach of the contract are uncertain in amount, and therefore unliquidated. The claim of the defendants, however, was for the difference between the contract price and the price actually paid by them. The argument is that, while this price may have been at one time uncertain, it had been rendered certain by what subsequently took place, and that the case is within the language of the Supreme Court in Heckscher v. Trotter, supra. This argument, however, assumes that the measure of damages is the difference between the contract price and the price paid by the defendants. Such is not the rule. The true measure of damages as stated by Benjamin on Sales, is the difference between the contract price and the value of the goods at the date fixed for delivery. The value is prima facie the market price, but there may be cases where there is no market, and the value must be otherwise determined, for example, by the price of the best substitute procurable.”

Mr. Justice Swayze further said:

“We have dealt with the question as if the only claim made by the defendants was to recover the difference between the contract price and the market price. The record, however, does not put the defendants in so favorable a position, for the claim in the notice of set-off was to recover the difference between the contract price and the price actually paid by the defendants, 'which may or may not have been the market price, and the offer at the trial, which was overruled by the Chief Justice was even broader than the notice, for it was an offer to prove the loss sustained by the defendants and the claim was for compensation for that loss, which may have included special damages and loss of profits.” Godkin v. Bailey, supra.

In the present case the defendant claims more than $28,000 of the damage sustained has actually been paid and, therefore, liquidated, but from the reasoning in the Godkin case, supra, it undoubtedly includes special damages and loss of profits, and that being so, it is unliquidated.

The motion to remove these eases will be denied.


text:
    GUSTAVE STERN, PROSECUTOR, v. MAYOR AND ALDERMEN OF JERSEY CITY, RESPONDENT.
    Submitted October 11, 1929
    Decided April 28, 1930.
    Before Justices Trenchard, Lloyd and Case.
    Eor the prosecutor, Richard Doherty.

    For the respondent, Thomas J. Brogan and Charles Ilershenstein.

   Per Curiam.

This is a rule to show cause why a writ of certiorari should not issue to review a resolution of the governing body of Jersey City authorizing the leasing of fifty-three acres of land for an airport to the Jersey City Airport, Incorporated, and to review also the lease executed April 25th, 1929, pursuant to such resolution.

The prosecutor is a taxpayer.

lie contends that the legislature did not authorize the leasing of the lands. We think that it did by the act of April 1st, 1929 (Pamph. L. 1929, ch. 26), which was in part as follows:

“The governing body of any county and/or the governing body of any municipality is hereby authorized and empowered to acquire by gift, grant, purchase, condemnation or in any other lawful manner lands and interests therein for airport purposes and so use lands heretofore acquired for other public purposes and now being used for airport purposes and to erect thereon ,and maintain buildings for the aforesaid purposes. Upon such acquisition or use, as aforesaid, the governing body of any county and/or the governing body of any municipality is authorized to lease said land, so acquired, with or without consideration to the State of New Jersey, or any agency thereof, and in addition is authorized to lease the land so acquired to any person, firm or corporation for a consideration and for such term of years as may'be agreed upon.”

The land in question was made land filled in by the city in connection with other lands acquired with riparian rights, and had been used for airport purposes for a year or more prior to the passage of the act above mentioned, and continued to be so used, and in our judgment the act authorized the lease in such a case as this.

The prosecutor further says that the commissioner who executed the lease transcended his authority by executing a lease not in conformity with the resolution. We think the answer to this is that the lease itself was submitted with the resolution authorizing its execution, and was executed as it was submitted.

The prosecutor says that resolution was not a proper procedure, and that it should have been by ordinance. We think the answer to that is that the act is silent upon the subject, and the procedure by resolution is not shown otherwise to be legally objectionable.

The prosecutor again says that the lease in question was not legally authorized because it constituted a sale of an interest in land which with certain exceptions, is required by Pamph. L. 1927, ch. 87, p. 160, to be made only to the highest bidder after public advertisement. The act in part .reads: “No land or any right or interest therein shall be sold by any municipality except at a public sale and to the highest bidder, after public advertisement given in a newspaper circulating in the municipality, at least once a week for two weeks prior to such sale.” We think the answer to this is that, assuming this lease to be the sale of an interest in land, it seems that the legislature by the statute of 1929 authorized it to be made to a person not necessarily the highest bidder, which seems to preclude the idea of a public sale in such case. The language of the statute of 1929 is “authorized to lease said lands, so acquired, with or without consideration to the State of New Jersey, or any agency thereof, and in addition is authorized to lease the land so acquired to any person, firm or corporation for a consideration and for such, term of years as may be agreed upon.”

The prosecutor seems to contend also that the rent reserved is so inadequate as to amount to fraud. To this it is a sufficient answer to say that the great weight of the testimony is that the rent reserved was adequate.

But apart from the consideration which we have briefly discussed, we think that the prosecutor is clearly in laches and therefore the writ should not be allowed.

The resolution authorizing the execution of the lease was adopted April 23d, 1929, and the lease was actually executed on April 25th, 1929, and pursuant to the terms thereof, the lessee promptly began to make improvements on the property. The writ was not applied for until August 13th, 1929. The testimony shows to our satisfaction that the prosecutor knew of the making of the lease very shortly after it was made, and also knew of the improvements, at the time they were made, which were made pursuant to the terms of the lease, amounting to about $22,000 when this writ was applied for. This conclusion is imperative when considered in the light of the testimony as to the interest and presence of the prosecutor’s son, a member of the flying school that had been located on the ground, between whom and the lessee differences arose. The prosecutor admits in effect that he delayed applying for the writ because he thought the “differences” between “the boys” and the lessee would be “straightened out,” and that he applied for this writ because “they did not straighten it out.”

The writ will be denied, and the rule to show cause discharged, with costs.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOSEPH WYCKOFF, PLAINTIFF IN ERROR.
    Submitted October term, 1929
    Decided April 28, 1930.
    Before Gummere, Chief Justice, and Justices Kalisck and Campbell.
    Eor the plaintiff in error, George E. Gutley.

    Eor the defendant in error, J. Vincent Barnitt.

   Per Curiam.

The plaintiff in error was convicted in the Passaic Quarter Sessions on an indictment charging him with an assault and battery, with intent to kill one Nathan Danielson, a police officer of the'borough of Hawthorne, Passaic county, on January 28th, 1929.

The matter is before us upon a strict writ of error and under section 136 of the Criminal Procedure act.

Three grounds are urged for reversal.

1. Assignment 4 and specification 4—“Because the trial court refused to sustain the defendant’s objection to the following question: “With your wife ?”

We quote the questions and answers pertinent to this point:

“Q. What.is your wife’s name? A. I can’t just think. It is Anna Mazcinko. Q. What is your name? A. Wyckoff. Q. Are you married to her? A. Yes, sir. Q. When were you married? A. On May 4th, 1924. Q. Where were you living on January 28th, 1929? ■ A. Living at the Hotel Belmont in Newark. Q. With yonr wife? Mr. Cutley—I object to it—it is immaterial whether he was or not. The Court —I will admit it. Mr. Cutley—I ask for an exception. Exception allowed, signed and sealed. Q. I beg your pardon? A. It wasn’t my wife. Mr. Dunn (assistant prosecutor)— Will that young lady come forward? Mr. Cutley—I would like to have my objection noted to this procedure. The Court —Your objection will be noted. Mr. Cutley—And an exception. Q. Do you know this young lady? A. Yes.”

The question under attack was assuredly not relevant to any issue in the cause under trial, and, undoubtedly, the answer was improperly admitted. However, we are unable to see how one upon trial charged with assault and battery with intent to kill can be prejudiced by the fact that he was then living with a woman not his wife unless such relationship had something to do with the assault and battery. In the present case it did not. While we do not approve of the tactics employed by the state and notwithstanding that in holding that the question objected to should not have been permitted to be answered, still we are unable to say, upon the whole case, such error prejudiced the plaintiff in error in maintaining his defense upon the merits.

2. Alleged error in the charge of the court as follows:

“The burden of proof is on the state. By that I do not mean it is necessary for the state to produce more witnesses numerically than the defendant, but it must produce witnesses whose testimony carries greater weight with you than the testimony of the witnesses produced on the part of the defendant.”

The complaint against this instruction seems to be that it is probable that it gave the jury to understand that the state must prove its case by a preponderance of the evidence rather than to a point beyond a reasonable doubt.

A reading of the entire charge absolutely controverts this imputation. The particular excerpt above quoted, and relied upon, is both preceded and followed by full and abundant instructions that the state must establish the guilt of the plaintiff in error beyond a reasonable doubt.

3. That the verdict is against the weight of the evidence. This is wholly without factual substance. A most casual reading and consideration of the proofs abundantly refutes this contention.

The judgment below is affirmed.


text:
    GEORGE B. JONES, PLAINTIFF, v. EMMA M. WESTCOTT, DEFENDANT.
    Submitted October term, 1929
    Decided April 28, 1930.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, LeRoy W. Loder.

    Contra, Francis A. Stanger, Jr.

   Per Curiam.

This was a suit to recover the amount of a promissory note of $800 and interest, dated May 24th, 1926, payable six months after date, made by the defendant and payable to the plaintiff, at the Bridgeton National Bank, of Bridgeton, New Jersey.

Three separate defenses were set up by the defendant in her answer:

1. That the note in question was made and delivered by her to the plaintiff without consideration to her from the plaintiff and the latter is not a holder thereof in due course.

2. That, although admitting the making of the note in question, the same was made and delivered by the defendant to the plaintiff as a gift, without any consideration therefor.

3. That such note was given by the defendant to the plaintiff without any consideration therefor and with an understanding between them that it should not become valid or used, or delivered or negotiated until after the death of defendant, then to take effect as a gift from defendant to plaintiff.

Plaintiff established by his own testimony as well as that of the cashier of the Bridgeton National Bank that on the day of the date of the note, May 24th, 1926, both plaintiff and defendant came to the bank; that by direction of the plaintiff $800 in cash was drawn from an interest account which he had and turned over to the defendant; that the cashier drew the note in suit and the defendant signed it and delivered it to the plaintiff.

The facts sought to be established by the defendant were •that plaintiff, who is her half brother, had suggested and offered to make her a present of a truck for use on her farm; that a suitable one had been found for sale for $800 and that the $800 drawn from the Bridgeton National Bank by the plaintiff on May 24th, 1926, and turned over to her, the defendant, was in furtherance of this offer and in consummation of the gift, and in fact was actually used by her in the purchase of a truck. The defendant further testified that the giving of the note in question was simply to provide against the possibility of her pre-deceasing her husband, so that in the event of such happening, the plaintiff could collect the amount thereof from her estate, and in that respect she was making him a gift thereof.

At the close of the case a motion for direction of a verdict in favor of the plaintiff was denied and the cause submitted to the jury solely upon the question of failure of consideration. The jury returned a verdict in favor of the defendant and plaintiff has the present rule and seeks to set such verdict aside for three reasons:

1. Because of refusal of the trial court to direct a verdict in favor of the plaintiff.

2. Because the verdict is contrary to the evidence.

3. Because the verdict is against the weight of the evidence.

The trial judge, very properly, ruled that evidence of an oral agreement, contemporaneous with the execution and delivery of the note, would he admissible only in the event that such agreement was shown to have become executed resulting in the extinguishment of the note by payment or otherwise and that a contemporaneous parol agreement varying the terms of payment was not admissible. .

Such is undoubtedly the law. Middleton v. Griffith, 57 N. J. L. 442 (at p. 447), &c.

The cause was submitted to the jury upon the theory that there was proof tending to show that defendant received no consideration for the note. Erom the proofs it is difficult to understand whether the defense intended to be made was that the $800 in cash turned over by the plaintiff to the defendant was a gift and therefore presented no consideration for the note, and this seems to be the theory upon which the trial judge submitted the matter to the jury, or that the note itself was a gift from the defendant to the plaintiff.

Viewed from either angle, it is apparent that the present verdict cannot stand.

Proof of a gift inter vivos must establish three things—

1. A donative intent on the part of the donor.

2. An actual delivery of the subject-matter of the gift, and

3. A stripping of the donor of all ownership and dominion over the subject-matter of the gift. Besson v. Stevens, 94 N.J.Eq. 549 (at p. 556).

If we examine the matter from the standpoint of its presentation to the jury, it may be said that two of these requisites appeared in the proofs, namely, a donative intent on the part of the plaintiff and an actual delivery of the subject-matter of the gift, namely, cash in the sum of $800. The third requisite, however, was not only lacking but there was undeniable proof that the plaintiff, as donor, did not strip himself of ownership and dominion over it because he took for such alleged gift of cash, the note in question, which he retained in his possession and was the holder of at the time of the commencement of the action and at the time of trial.

On the other hand, if we inquire into the transaction upon the theory that the note Avas delivered by the defendant to the plaintiff as a gift, there are two obstacles encountered, although, in all respects, except hereinafter referred to, a complete gift inter vivos can be said to have been made out, inasmuch as the note, which is the subject-matter thereof, was admittedly delivered to the plaintiff, donee, and the defendant, donor, stripped herself of all control and dominion over it, and, further, there was testimony from which a donative intent might, at least, have been implied. If an absolute, complete gift was made out, the note was then as good and valid an instrument in the hands of the plaintiff as if he had paid a full consideration therefor in cash.

“A gift inter vivos becomes perfect by delivery and acceptance and a title thus acquired is just as perfect as a title acquired by purchase,” Corlee v. Monkhouse, 50 N. J. Eq. 537.

The difficulty with this is, and it is the first obstacle above mentioned, that one’s own note cannot be the proper subject of a gift.

In Egerton v. Egerton, 17 N. J. Eq. 419, it is held:

“The giving of one’s promissory note or acceptance, by the donor to the donee, will not constitute a donatio mortis causa. It is otherwise with the gift of a note, acceptance, or bond of a third party, which may pass by endorsement or delivery.” And in this same case it is held that, in this respect, there is no distinction to be made between a gift causa mortis and one inter vivos. The reason why one’s own obligation cannot properly be the subject of a gift is that it is not a chattel, but a mere contract to pay.

The note, therefore, not being the proper subject of a gift by the defendant to the plaintiff the latter could not have such title or property therein by gift as to entitle him to a recovery.

The other obstacle is that the cause was not submitted to the jury upon the theory of the note being a gift from the defendant to the plaintiff.

The learned trial judge ■ submitted the cause upon two theories, viz.:

1. “So that the question for you to determine is: was this note given for value, and if it was given for value then the plaintiff is entitled to recover the full amount of his interest and costs,

2. But, if, on the other hand, from the testimony you find that it was not given for value but was a mere gift to Mrs. Westeott, as she claims, then your verdict would be for the defendant, and no cause of action.”

In order to.sustain a verdict on a rule to show cause the evidence must show a case within the rules upon which the court submits the case to the jury. Bowlby v. Phillipsburg, 83 N. J. L. 377.

As has been pointed out the proofs do not establish a gift ..of the money, $800 from the plaintiff to the defendant, and failure in that direction makes likewise for a failure of proof in support of the defense of lack of consideration because lack of consideration was based upon this particular theory of gift. The jury was not instructed to find upon the question as to whether or not the note was a gift from the defendant to the plaintiff, accompanied by a proper instruction that if they found it was the plaintiff was not entitled to recover thereon because it was not a proper and legally sufficient subject of a gift.

The rule to show cause will be made absolute and a venire de novo issue.


author: Pee Cueiam.

text:
    JOSEPH J. WEINBERGER, RELATOR, v. SAMUEL HILFMAN, RESPONDENT.
    Argued January 21, 1930
    Decided May 1, 1930.
    Before Justices Pakkee, Black and Bodine.
    For the relator, Merritt Lane.

    For the respondent, Edward F. Merrey.

    For John J. Roegner, mayor, intervenor, McCarter & English.

   Pee Cueiam.

In this proceeding the relator claimed to be lawfully entitled to the office of city counsel of Passaic, and to have been ousted therefrom by the respondent. The issue arising on the pleadings went to the Circuit for trial and was tried by Judge Porter, Circuit Court judge, a jury being waived. He made findings of fact and law and as a result of such findings signed the usual postea adjudging, among other things, that relator was entitled to immediate possession of the office and to hold the same until May, 1931. This was filed January 2d, 1930, and rule for judgment was entered thereon at once. It is urged that this judgment should not stand, first, because relator is under indictment (as set out in the information) for conspiracy to obtain money from a trust company by false pretenses; and secondly, because under the common law practice, claimed to be still applicable in cases of quo warranto, judgment on postea may not be entered until the following term of this court..

With regard to the first point—it may be conceded for present purposes that relator subjects himself to just criticism by insisting on the exercise of a public office while under indictment. However,' we express no opinion on that phase of the matter beyond saying that such a situation connotes no legal disqualification, and that all these facts were before Judge Porter on the record, and as he does not even allude to them we assume that this point was not made before him. In our view it has no legal substance; and as the case has been maturely decided after a full and careful trial, we do not think the court- should stay judgment on such a ground as this.

As to the second point—assuming but without deciding its correctness, the new term opened on the day when this motion was made, so that in any event postea might have been filed and judgment entered that very day on motion ex parte. Consequently no useful purpose would be subserved by vacating the judgment on a technicality only to enter it again the next moment.

The motion to vacate the judgment is therefore denied.

The counter motion is by relator, based on section 11 of the Quo Warranto act (Comp. Stat., p. 4214), for an order directing the surrender of the office by the respondent. To this relator is clearly entitled, on giving the bond provided in the statute. Naturally, if the judgment is to have any effect it should be enforced, and the language of the statute clearly contemplates this, even to the extent of enforcing it notwithstanding a writ of error. A rule may be presented accordingly. The bond should be in double the amount of the salary of the office from this date until the expiration of the term in May, 1931.

Eor the mayor and director of public affairs, it is urged by way of intervention that for reasons not presented on the record or at the trial, and not necessary to mention here, the relator was never lawfully appointed to the office. Such a point might have been quité proper to urge while the suit was pending and before judgment, provided the record had been amended to raise it; but we do not feel justified in considering it at the present juncture. It is in effect a motion in arrest of judgment for a matter not appearing on the record, and counsel will doubtless agree that such a motion is without legal foundation.


text:
    ABRAM LEFF AND SARAH LEFF, HIS WIFE, JOSEPHINE BRYSKI AND YETTA SENVILLE, PLAINTIFFS, v. SOPHIE LAFER, DEFENDANT.
    Submitted January 31, 1930
    Decided May 5, 1930.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiffs, Aaron L. Simon.

    For the defendant, John L. Ridley.

   Per Curiam.

Plaintiff seeks to set aside a verdict of no cause of action rendered by a jury on October 8th, 1927. The defendant, Sophie Lafer, was contemplating a trip to Ilammonton. The trial judge left it to the jury to say whether the plaintiff Josephine Bryski was invited to ride by defendant. They resolved this in the negative. The sole question here is whether this finding was against the weight of the evidence. The plaintiff testified on direct examination that she was invited to go for a ride. She-is corroborated by two other witnesses, who say that the defendant invited the plaintiff to go on this trip. They heard the invitation given.

The testimony of Abram Leff, as to the question of invitation, is as follows, that Sophie Lafer said to Josephine Bryski: “I want you to go along with me for that trip. I want you to go along with me.” He then says on cross-examination that he heard her say to Josephine Bryski: “I am going to see somebody. You could come along with me.” And then explains as follows: “You could go along on that trip. I have to pay some money.”

We think irrespective of the precise language used, the preparation in advance for the trip, the visit to the plaintiff’s house the night before, the statement that the trip was to he made, coupled with the statements “come go along with us” or “you can go along with us” indicate an intention to invite.

The rule will be made absolute.


text:
    CRAFTEX CORPORATION, PLAINTIFF-RESPONDENT, v. McCLELLAN STUDIOS, INCORPORATED, DEFENDANT-APPELANT.
    Submitted January term, 1930
    Decided May 3, 1930.

      Before Justices Parker, Black and Bodine.
    For tlie plaintiff-respondent, liar court & Steelman.

    For the defendant-appellant, William Charlton.

   Per Curiam.

The complaint contains two counts, the first count alleges there is due the plaintiff from the defendant the sum of $792.79 with interest from the 26th of October, 1927; on a book account. The second count alleges there is due the plaintiff the sum of $792.79 for sundry goods sold and delivered, between January 3d, 1927, and October 20th, 1927, under an agreement between the parties, that the plaintiff should charge a reasonable price for the goods sold. The defendant filed an answer and counter-claim. The trial resulted in a directed verdict for the plaintiff for the sum of $848.18 and a verdict of no cause of action, as to the defendant’s counter-claim.

At the close of the plaintiff’s case, the defendant moved for a nonsuit as to both counts, which was refused by the trial court, to which ruling an exception was noted. This is the alleged error as a ground of appeal. No testimony was offered by the defendant. It is sufficient to say, as part of the plaintiff’s evidence, Exhibit P-3a and Exhibit P-5a were introduced into evidence, being letters, Exhibit P-3a signed J. B. McClellan and Exhibit P-5a signed McClellan Studios, Incorporated, LeEoy D. McClellan, treasurer, in which Exhibit P-3 a, it is stated, “but about the 1st of September we will pay some off, as soon as business picks up we will clear up the balance. Trusting you will grant us this length of time;” Exhibit P-5 a, “we will start payment of your account in the latter part of January as we are not doing a thing at this time.” This evidence precludes a nonsuit by the trial court.

Finding no error in the record the judgment of the Atlantic County Circuit Court is therefore affirmed.


author: Creaky, J.

text:
    Hudson County Circuit Court.
    GEORGE L. BRAINARD, PLAINTIFF, v. NEW YORK, ONTARIO AND WESTERN RAILWAY COMPANY, A CORPORATION, DEFENDANT.
    For the rule, William E. Carey.

    Contra, Charles W. Broadhurst.

   Creaky, J.

The defendant has entered a special appearance and obtained a rule to show cause why the service of the summons and complaint should not be set aside, and has assigned the following reasons:

1. That the court has no jurisdiction on the face of the complaint.

2. That Harris was not such an agent as could he served.

3. That the service did not constitute due process of law under the fourteenth amendment.

4. That the service was illegal because it imposed an undue burden on interstate.

The plaintiff is a resident of the State of New York. The defendant is a corporation of the State of New York and has never taken the proceedings prescribed by our Corporation act to authorize it, as a foreign corporation, to transact business in the State of New Jersey.

The plaintiff brought this action to recover damages, sustained by him on January 23d, 1927, due to an automobile which he was operating being struck by one of the defendant’s trains at a crossing of the defendant, which said crossing is located in the State of New York.

The summons and complaint were served upon Leroy E. Harris, who was employed by the defendant as a “milk collector,” by serving him personally at the office where he works in Weehawken in this state. Mr. Harris sent the papers to the general attorney of the defendant in New York City. It is this service which the defendant is attempting to set aside, upon the grounds heretofore stated.

The question to be decided is not whether in any case an action will lie against a foreign corporation for injuries sustained in another state, of which both parties are residents, but whether under the facts in this particular case the court has

1. Acquired jurisdiction of the person of the defendant.

2. Whether requiring the defendant to answer in this court would impose an illegal burden upon interstate commerce, which is the only business carried on by the defendant in this state.

The testimony taken upon the rule discloses the following facts:

On March 21st, 1929, the date on which the summons and complaint were delivered to Mr. Harris, he was in the employ of the New York, Ontario and Western Railway Company as “milk collector,” at Weehawken, New Jersey. His duties as milk collector were confined solely to milk shipped by way of the New York, Ontario and Western Railway Company from New York and Pennsylvania by the trains of that Company at Weehawken, 'New Jersey.

Shipment was made by milk trains operated by the New York, Ontario and Western Railway Company.

The milk shipped into Weehawken by the Ontario and Western trains is unloaded at milk platform. Milk waybills are delivered at Harris’ place of work. They are in four parts. Harris and the assistant foreman separate the way-bills, the foreman retains the tally sheet, and the remaining three parts are delivered to one of the office clerks who inspects the charges to see if they conform to the tariff. If they do not, he corrects them. Afterwards they are delivered to the cashier in the office. The cashier makes collections of the transportation charges from the consignees. A daily report of shipments, &c., is made by the clerk under the supervision of Harris, and is sent to the auditor, Mr. Startup, at the Grand Central Terminal, New York. There is also a daily report of collections and money sent to the treasurer of the company in New York city. Remittances are made under the name of Harris, and the clerk puts up the remittances under Harris’ supervision.

Monthly reports are also made to Mr. Startup, and to division superintendent McQueen at Middletown, New York, and to division superintendent Wells at Norwich, New York.

Reports are also made to the two division superintendents with respect to any special matter connected with the shipments which happens after the milk is received on the milk platforms at Weehawken.

Harris performs no duties for the railway company except such as pertain to milk shipments.

The lines of the New York, Ontario and Western Railway Company run from Oswego to Cornwall, New York. Erom that point they have trackage rights over the West Shore railroad to Weehawken. The company also has a line from Cadosia, New York, to Scranton, Pennsylvania.

The milk shipments by the company’s trains originate wholly in the States of New York and Pennsylvania.

The entire business of the company within the State of New Jersey is interstate. The company has no tariff rates on either freight or passengers in intrastate commerce within the State of New Jersey.

Colchester, the place where the accident happened, is in New York State and is one hundred and eighty-five 'miles from Jersey City. Train 801 mentioned in the complaint has a ■crew of five men—engineer, fireman, conductor, trainman and flagman.

Tickets sold at Weehawken are for points outside the State of New Jersey.

The duties of a freight agent are stated in detail in the testimony of Mr. Osgood.

Harris had nothing to do with the operation of trains of the railway company at any point on its lines. He did nothing in connection with maintenance of grade crossings, or highways on any of the lines of the railway company.

He did nothing with respect to investigation of accidents at any point on the company’s lines. He made no reports with respect to accidents and had nothing to do with accidents arising ont of the operations of the company.

Harris had four clerks working under him. The milk handlers or milk checkers are under a foreman and assistant foreman with whom Harris has nothing to do except in supervising matters which they cannot themselves adjust. When necessary, Harris gives directions to the milk platform foreman and milk checkers.

The foreman keeps the time of the milk checkers and hands his report to Harris to make out the payroll. The checks to pay the milk checkers are sent to Harris and he distributes them to the foreman.

Harris collects the freight revenue for the transportation of milk, but has nothing to do with collecting the price of the milk from the consignees. Bills for transportation are made up by the agent at the shipping station, and are complete when received in Weehawken, subject only to correction of errors with respect to tariffs. No separate bills for milk transportation are made.

The building where Harris works does not belong to the Ontario and Western. It is used jointly by that company and the New York Central Railroad Company.

The foreman and assistant foreman report to Harris anything out of the ordinary in connection with the milk business. The foreman makes a typewritten report to the division superintendents of the number of men and the number of cars he handles.

Harris would suspend an employe for cause, but dismissal ■would be subject to the superintendent’s approval.

As stated before the question involved here is not whether in any case a foreign corporation doing business in this state may be sued by a non-resident plaintiff who has been injured in another state. If that were the only question it would be á simple one, because it is well settled that this can be done under certain conditions. Metcufski v. Philadelphia and Reading Railroad, 97 N. J. L. 100; Fortein v. Delaware, Lackawanna and Western Railroad Co., 90 Id. 137; Ackerson v. Erie Railway Co., 31 Id. 309.

In these cases, however, the questions involved in the present case, namely the validity of the service or the unlawful burden on interstate commerce were not raised. The only question was whether our courts would have jurisdiction of a cause of action for injuries inflicted in a foreign state. The fact that jurisdiction might be acquired if all the essential elements are present, does not affect the question of whether or not such jurisdiction would be acquired in the absence of one of the essential elements, namely, a valid service. If there is no valid service it necessarily follows that there would be no jurisdiction acquired.

It is well established in this state that in order to make service upon an agent sufficient to bring the defendant into court, such agent must:

1. Represent the company in some general capacity, or

3. He must have such connections with the business out of which the alleged cause of action arose as to make him a representative of the corporation with respect to that particular business. Mulhearn v. Press Publishing Co., 53 N. J. L. 150; Carroll v. New York, New Haven and Hartford Railroad Co., 65 Id. 134; Erie Railroad Co. v. Van Allen, 76 Id. 119.

It is the contention of the plaintiff that the amendment of 1908 and 1916 to the Corporation act of New Jersey overcomes the objections raised in these cases; this is not so. While these amendments add other classes of agents to those mentioned in the previous acts of 1865 and 1896 or at least attempts to name the specific kinds of agents who may be served they do not change the principles established by our courts in the cases decided before these amendments were passed. Our courts having passed upon and established the principle that the “agent” spoken of in the previous acts must fall within one of the two classes, of either representing the company in some general capacity or of having some connection with the business out of which the cause of action arose, the legislature cannot change this principle by simply designating certain specific kinds of agents and making service upon them any more valid than a service upon the agent spoken of in former acts. The designation of a freight agent under the amendment of 1916 is no more specific than the term engineer under the former act, and cannot change the principle enunciated in Carroll v. New York, New Haven and Hartford Railroad, supra, where Mr. Justice Dixon held that to legalize service of process upon a foreign corporation the circumstances must show that the person on whom service is made has such connection either with the corporation or with the business out of which the alleged cause of action arose, that he would be considered the representative of the corporation for the purpose of service.

“In its designation of the classes of persons on whom process against foreign corporations may be served, our statute must be construed in the light of the constitutional principle that only by due process of law can courts acquire jurisdiction over parties; and therefore, when it refers to agents, clerks and engineers, persons whose relation to a corporation may give them no representative character whatever in regard to the litigation contemplated, the courts must confine those general terms in such a way as will uphold the jurisdiction which they are asked to exercise.” Carroll v. New York, New Haven and Hartford Railroad, supra.

There is also a grave question in my mind whether Harris, the person served in this case, would even come within this class of agents named in the 1916 amendment. It is contended by the plaintiff that Harris was a freight agent, but the testimony taken upon the rule does not bear out this contention.

It is true that he was engaged to handle a product which would come under the general term of freight, but the term freight agent has a well-defined meaning and carries with it certain specified duties. The mere fact that an agent handles an article which, under the circumstances, would be considered as freight, would not necessarily bring him within the classification of a freight agent. Harris could not receive or ship any other article of freight except milk. He could not perform many of the other duties which a freight agent as the term is generally understood could perform. His was a limited power. He was only to take some part in the handling of one product, and this falls short of the much broader field in which a freight agent, as such, could be said to represent the company by which he was employed.

Having reached the conclusion that the service in this case was not such as to give the court jurisdiction over the person of the defendant and hence no jurisdiction of the cause of action, I do not find it necessary to pass upon other points raised by the defendant.

The service of the summons will he set aside.


text:
    THOMAS M. ADKINS, ADMINISTRATOR AD PROSEQUENDUM, PLAINTIFF-RESPONDENT, v. PHILADELPHIA, TRENTON AND CHESTER COMPANY, DEFENDANT-APPELLANT.
    Submitted January 31, 1930
    Decided May 5, 1930.
    Before Justices Parker, Black and Bodine.
    For the defendant-appellant, Francis L. Bergen.

    Por the plaintiff-respondent, Joseph B. Schwartz.

   Per Curiam.

The rule brings up a verdict for $6,500 in favor of the plaintiff and against the defendant. The ease was tried once before a rule to show cause was granted. 7 N. J. Mis. R. 456. A review of the evidence at the two trials indicates that the facts were substantially the same. Plaintiff’s intestate was killed as a result of a collision between the car in which he was riding and one of the defendant’s trucks. The second concurring verdict is sufficient to cause the court to hesitate before granting the third trial. Brown v. Paterson, 69 N. J. L. 474; Fulton v. Grieb Rubber Co., 73 Id. 35.

The witnesses adduced at the trial were the defendant’s driver and helper, the driver of the car in which plaintiff’s intestate was riding, two automobilists, and two witnesses who arrived at the scene shortly thereafter.

The defendant’s theory of the accident is that its driver was obliged to turn to his left to avoid a collision with the car in which the plaintiff’s intestate was riding, which was zigzagging and crossed to the wrong side of the road.

The plaintiff’s theory of the accident is that the defendant’s truck was the offender and crowded the other truck off the road.

Both trials were fairly conducted. The charge of the trial judge is an admirable presentation of the legal points involved, and both juries returned the same verdict. And after examining all the evidence, we are not prepared to say that because there were more witnesses in support of the defendant’s position than in support of the plaintiff’s position that the verdict is against the weight of evidence in view of the similar verdicts. There is testimony to support the verdict, and there is nothing to indicate that it was the result of prejudice, partiality or passion. The verdict seems not to have been excessive. The boy was sixteen years of age, well grown and was turning over to his mother $25 a week, his average earnings.

The rule will be discharged.


text:
    C. A. LIPPINCOTT AND BROTHER, INCORPORATED, PLAINTIFF, v. FABIO MATAZZO, DEFENDANT.
    Submitted January 31, 1930
    Decided May 5, 1930.
    Before Justices Parker, Black and Bodine.

      Eor the plaintiff, George B. Evans.

    For the defendant, Palmer & Howell.

   Pee Cueiam.

The plaintiff, a dealer in farm supplies and machinery, sued the defendant, a road contractor, to recover the amount due for a used tractor and back filler conditionally sold. It is unnecessary on this rule to consider that part of the case which concerned the count relating to goods and labor furnished at the defendant’s instance and request or the law questions involved.

The conditional sales agreement is dated June 22d, 1928. Defendant gave a series of notes with maturities over a period of eighteen months. The first of the series was paid because the defendant did not have time to stop payments at the bank.

The trial judge submitted to the jury the question of whether the plaintiff’s action was defeated by fraud and deceit in the negotiations of the sales agreement, and their finding is dispositive of this issue, if it is supported by the weight of evidence.

The testimony indicates that from the very first the operation of the tractor and scraper were unsatisfactory. The bearings burnt out, the gears would not shift, the thing had trouble in propelling itself and was quite useless to either push or pull. The means by which it was to be turned were insufficient and ineffective. When once it got in a hole or passed over a depression in* the ground, the gears became disengaged and some other means must be at hand to propel the tractor.

There was testimony that before the sale the tractor was represented to be in A1 condition and as good as new. Further, plaintiff’s representative called on the defendant before the purchase was made and was informed of the kind of work that the defendant desired the tractor to do. He tried one kind of a tractor and found that it was unsatisfactory and then was told that this tractor was just what he wanted and would do just the sort of. work needed. The defendant seems to have relied entirely upon the representations of the plaintiff's representative. The testimony, we believe, sufficient to support the verdict.

The defendant filed a counter-claim, and on this counterclaim a verdict of no cause of action was returned. It is argued that this circumstance indicates that the verdict in favor of the defendant on the plaintiff's suit is the result of prejudice. We do not think this follows. The right of the plaintiff to recover was one issue, and the right of the defendant was another. The jury might quite well have found that the plaintiff was guilty of fraud which barred his right .of recovery but that the defendant’s damage, by reason of the fraud, had not been sufficiently and clearly established for them to name a sum which the defendant might have by reason thereof. Consistent verdicts are never disturbed. Sharabba v. McGuire, 7 N. J. Mis. R. 128.

The rule will be discharged.


text:
    LOUISA MICCA, ADMINISTRATRIX AD PROSEQUENDUM, APPELLANT, v. JOHN J. PARENTINI, RESPONDENT.
    Submitted October term, 1929
    Decided May 6, 1930.

      Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    For the appellant, Dante Rivetti.

    For the respondent, Edwin F. Smith and Raymond Dawson.

   Pee Cueiam.

This is an action under the Death act predicated upon negligence of the defendant as the owner of a two-story apartment house in failing to provide light in the first floor hall under section 126 of the Tenement House act (4 Comp. Stat., p. 5341).

On Sunday, October 25th, 1925, the electric current supplied by the Public Service Electric and Gas Company failed throughout the community in which the house was located. The door bells, door openers and lights throughout the building in question were supplied by current from this source.

The failure of supply was noticed at three p. m. About five-thirty p. m. decedent left his apartment, on the second floor, for the purpose of securing a lamp. This he did and about five-forty-five p. m. proceeded to return to his apartment. Whether the lamp was lighted or not does not appear but it does appear decedent proceeded to ascend the stairway to his apartment, and for some reason or cause, not appearing, fell backward down the stairs to the ground floor, receiving injuries from which he died. The suit was brought to recover damages for his death. The trial court directed a nonsuit, from the j udgment upon which this appeal is taken.

It is urged that this judgment should be reversed because under the foregoing facts the question of negligence of the defendant and that of the decedent should have been submitted to the jury. It appears that after the failure of the electric current an effort was made to notify the owner but he could not be found and it is urged that under the Tenement House act the duty to light is such an absolute one that he was required to provide some means of lighting if the electric current failed as it did in this instance.

We think it was not error to nonsuit:

1. Because negligence was not established for the reason that having provided a usual and accustomed method of lighting defendant had satisfied the statute and was not bound to provide means absolutely insuring against failure of such method.

2. Knowing that there was a failure of lighting decedent took the risk of injury when he attempted to ascend the stairway in darkness.

3. There was no proof that the failure of lighting in the hallway was the proximate cause of the happening.

The judgment below is affirmed, with costs.


author: Memorandum by Parker, J.

text:
    MAXWELL E. BUBLITZ AND ADELHEID BUBLITZ, PROSECUTORS, v. BOROUGH OF HILLSDALE, IN THE COUNTY OF BERGEN, DEFENDANT.
    Argued April 26, 1930
    Decided May 5, 1930.
    Before Justice Parker, at chambers.
    Eor the prosecutors, Isaacs & Gunther.

    For the defendant, Howard Maclcay.

   Memorandum by Parker, J.

The attack is on an assessment of benefits for a public improvement, and the sole point made is that the assessment is vitiated because one of the commissioners removed to another municipality to live before it was completed.

There was no permanent board of assessors in the borough of Hillsdale, and so under section 18 of article 20 of the Home Eule act, as amended (Pamph. L. 1918, p. 485), a temporary board was appointed for this particular assessment, on November 13th, 1928. A Mr. Stever was one of the three appointed, and at that time was a resident of Hillsdale and so continued until September 4th, 1929, when he moved to Eidgewood. He continued, however, to work with his associates on the assessment until Eebruary 11th, 1930, when the commissioners submitted their report.

Section 18 of article 20, supra, provides for the appointment of three discreet freeholders who shall be residents of the municipality, &c. It is conceded that Stever was qualified when he was appointed and until he moved away. But the claim is that although by section 21 “a majority of the board shall constitute a quorum for the transaction of business and shall be sufficient to make any assessment,” the action of such majority is vitiated by the participation of a colleague disqualified by non-residence. Prosecutors submit two decisions in this state, in both of which the disqualification was because of interest, in my estimation a very different matter. The ground they invoke for allowing a writ with a view to having the assessment set aside is that the Home Eule act of 1917 at page 459, article 37, section 18, amended by the laws of 1920, chapter 115 at page 248, provides as follows: “Whenever any officer of any municipality shall cease to be a bona fide resident therein, or whenever the resignation of such officer shall have been accepted by the proper authority, a vacancy in the office held by such person shall immediately exist, and such person shall not exercise any of the duties of the office theretofore held by him; and such municipality, by and through its proper authority, -shall immediately proceed to fill such vacancy in the manner and form prescribed by law for the filling of such vacancy * *

I am unwilling to hold that this section of the statute applies to members of a temporary board appointed specially for a particular assessment. It will be observed that the statute uses the words “officer” and “office held by such person.” But an office is defined to be “a place in a governmental system created or recognized by the law of the state which, either directly or by delegated authority, assigns to the incumbent thereof the continuous performance of certain permanent public duties.” Fredericks v. Board of Health, 82 N. J. L. 200. The case of a special commissioner pro hac vice to make a particular assessment seems not to be within this class.

'My conclusion is that there was no legal infirmity in the assessment because of the reason assigned on this rule, and the rule will therefore be discharged, with costs.


text:
    MONMOUTH PLUMBING AND SUPPLY COMPANY, RESPONDENT, v. GEORGE F. HERBERT AND ARLINGTON REALTY COMPANY, BUILDERS, DEFENDANTS, AND ARLINGTON REALTY COMPANY, DEFENDANT-APPELLANT.
    Submitted January term, 1930
    Decided May 6, 1930.
    Before Gummeee, Chiee Justice, and Justice Campbell.

      For the appellant, Michael J. Tansey.

    For the respondent, Charles F. Sexton.

   Per Curiam.

This was an action upon lien claim. The complaint is in three counts, the first being the usual one in lien claim actions; the second is for goods sold and delivered to the defendants, Herbert and Arlington Realty Company, and .the third is for goods sold and delivered to the defendant Herbert.

Upon the trial the action lost its character as a lien claim suit because of the production of a release from the plaintiff and the defendant Herbert to the defendant Arlington Realty Company, as owner, releasing the lands from lien and the trial of the cause resulted in a verdict in favor of the plaintiff for the full amount of its claim against the Arlington Realty Company and for one dollar as against the defendant Herbert.

It appears that a rule to show cause why these verdicts should not be set aside, was allowed to and argued by the appellant, and it further appears that the grounds or reasons urged under this rule were that the verdict for the nominal amount against Herbert was inconsistent, under the proofs, with that for the entire amount of the claim against the defendant, appellant here, and that the guaranty offered in evidence which appeared to have been executed by the president of the Arlington Realty Company was ultra vires and not binding upon the company, and that the claim of the plaintiff was not properly proven.

The result under such rule was that it was discharged as to the Arlington Realty Company, the appellant here, and made absolute as to the nominal verdict against Herbert, and such verdict was set aside.

It would seem that strictly this would dispose of the questions raised upon this appeal.

Catterall v. Otis Elevator Co., 103 N. J. L. 381. We think it does, but turning to the grounds of appeal we also think the same result must be reached.

The first three grounds are directed at an alleged guaranty to the respondent alleged to have been executed by the president of the appellant.

The facts seem to be that the appellant company being the owner of lands on Garfield avenue in Avon, undertook to erect thereon an apartment house and in furtherance of that project entered into the following agreement with the defendant Herbert as follows:

“January 25th, 1927.
Working Agreement between
C. H. Walker, Pres., Arlington Eealty Co:, and George P.
Herbert plumber.
I will agree to install all plumbing work according to Avon Code and Tenement House Code in apartment house at 15 Garfield avenue, Avon, Hew Jersey, and for which I am to be paid ten per cent, upon all labor and materials. Labor to be met weekly. It is understood that you will guaranty entire cost of materials in writing. All commission to be paid at the completion of this work. All complaints about labor to be made to Mr. Herbert.”

This in form was an offer signed by Herbert and a duplicate was accepted and signed by the president of the Arlington Eealty Company.

Subsequently and apparently in accord with such agreement the following paper was executed by the president of the Arlington Eealty Company:

“February 11th, 1927.
Monmouth Plumbing Supply Co.
33 Second Avenue, Long Branch, H. J.
Gentlemen—We hereby guarantee payment of plumbing materials as per contract amounting to $8,272 as per estimate dated January 18th, 1927. Also all extra material that you furnish, to be installed by plumbing contractor, George F. Herbert, on apartment house job, Garfield avenue, Avon, Hew Jersey. Terms of payment are two per cent, for cash on the tenth of the month following date of invoice or thirty days net, or note in full upon completion of delivery of all material, excepting extra material.”

It is contended, that the total amount of materials furnished reached the sum of $13,744.38. Labor bills for plumbing work were paid weekly by the appellant. On May 7th, 1927, appellant gave the plaintiff its note for $4,000 which was not paid at maturity but subsequently by an order of August 3d, 1927, of appellant, signed by its president, the sum of $8,206 was paid plaintiff from the proceeds of a mortgage loan made to the appellant. This left a balance of $5,700 due plaintiff. On the same date and in the same manner and from the same fund $2,577.98 was paid Herbert, the plumbing contractor, for the balance due him under his contract for plumbing labor. Thereafter appellant suggested, through its president, that it give a second mortgage to the plaintiff for the balance of its account. While negotiations in this direction were in progress the appellant was decreed to be insolvent and a receiver was appointed. From the proofs it is apparent, and, in fact, convincing that the materials, the price and value of which constitutes the plaintiff’s claim, went into the building of the appellant, and also that C. Herbert Walker, the president of the appellant company was in full and absolute control of its affairs and all the details of the construction of the apartment house in question.

The first ground of appeal is directed at a portion of the charge in which the court referred to the proofs as indicating pow'er conferred expressly, or by implication, by holding out the president of the appellant as its agent.

Appellant does not point out or direct our attention to any error in such portion of the charge so singled out for attack.

The next ground is alleged error in refusing to charge appellant’s third request.

We think there was no error in this for two reasons: first, because the request does not fully cover the theory upon which the cause was tried in that it fails to include the question of ratification of the acts of its president, by the corporation, and, second, because the trial court fully, and we think, correctly, charged upon the matters covered by the request.

The third ground is that the court erred in permitting the agreement of guaranty of February 11th, 1927, to be introduced in evidence.

Under the proofs in the case we think this was not error, at least a jury question was presented as to its being the act and obligation of the appellant corporation, and this question was presented to the jury.

The final ground is that the judgment should be set aside because the verdict of one dollar against the defendant, Herbert, is inconsistent with the judgment against the appellant.

We are not by any means certain that under the proofs this verdict was inconsistent with the verdict and judgment against the appellant but if it may be said to be, this ground is without merit for two reasons, first, that it is not a proper ground of appeal, and, second, being a proper ground for setting aside the verdict under a rule for a new trial, it was so treated under such a rule and the verdict was set aside.

The judgment below should be affirmed, with costs.


text:
    BYRON M. HARMAN, PROSECUTOR, v. ERNEST A. REED, SUPERVISOR OF ESSEX COUNTY, RESPONDENT.
    Argued October 3, 1929
    Decided May 6, 1930.

      Before Gummeke, Ciiiee Justice, and Justices Kalisch and Campbell.
    Eor the prosecutor, Robert H. McCarter.

    For the respondent, Arthur T. Vanderbilt.

   Pek Cukiam.

This writ brings before us, for review, the order of judgment of Ernest A. Beed supervisor of Essex county, removing the prosecutor from his position as superintendent of the Essex County Sanatorium, which position he has occupied since 1923.

Extremely voluminous proofs are brought before us upon which the respondent based his findings. These we have not examined or considered because it has seemed to us that there was a basic question of jurisdiction involved. That question is, did the respondent, as supervisor of Essex county, have jurisdiction over the prosecutor and the subject-matter of the inquiry ?

We think he did not.

It is true that the statute creating the office of supervisor (Pamph. L. 1900, p. 168; 1 Comp. Slat. 529, and Pamph. L. 1918, ch. 206, p. 751) provides: “1. There shall be a chief executive officer in counties of the first class in this state to be known as the county supervisor. 2. The county supervisor * * * shall be the chief executive officer of the county and may recommend to the board of chosen freeholders to pass such measures as he may deem necessary or expedient for the welfare of the county.

3. It shall be the duty of the county supervisor to exercise a constant supervision over the conduct of all subordinate officers and employes and to examine into all complaints made against any of them, for violation or neglect of duty and if it is found that any officer or employe is guilty of the charges brought against them the county supervisor may suspend or remove them.”

Under Pamph. L. 1912, ch. 217, p. 340, authorizing hospitals for the treatment of tuberculosis in counties, such institutions are placed under the direct control and management of a board of managers, to be appointed by the board of freeholders.

Section 3 of such act authorized such board of managers to appoint a superintendent to hold office at the pleasure of such board of managers. His qualifications are defined to ber “Shall be a qualified practitioner of medicine or other person trained for work of said character.”

Section 4 of this act provides: “The superintendent shall be the chief executive officer of the hospital and subject to the by-laws, rules and regulations thereof and to the powers of the board of managers.”

By Pamph. L. 1922, ch. 278, p. 685, § 4, and other portions of the act of 1912, supra, were amended.

Section 4 was amended so as to read as follows: “4. The superintendent shall be the chief executive officer of the hospital, and subject to the by-laws, rules and regulations thereof, and to the powers of the board of managers, or of said board of freeholders, or of said committee, as the case may be * * *.” The addition over the original text is “or of said board of freeholders or of said committee as the case may be.”

A reading of the entire section will indicate a legislative intent to take away from the board of managers the exclusive control over the superintendent under the original act of 1912 and to distribute such powers amongst such board of managers, the board of freeholders and a committee of the latter board.

Two things are to be noted, however: 1. That the power of appointments remains in the board of managers. 2. That the superintendent remains “the chief executive officer of the hospital.”

There is also to be taken into consideration the fact that with such power of appointment there remains the provision contained in the original act of 1912, supra, that such superintendent “shall hold office at the pleasure of such board” (board of managers).

It is further to be considered that the Supervisor act was originally adopted in 1900 and re-written into the revision of the County act in 1918. Pamph. L. 1918, p. 751.

The Tubercular Hospital act was originally adopted in 1913 and its amendment, before referred to, was adopted in 1933.

It seems to us that the obvious result and controlling conclusion to be arrived at from a construction and application of these legislative acts must be that the prosecutor is not such a subordinate officer as to come under the supervision and control of the respondent, the county supervisor.

It seems to us that if this authority and control extends to the prosecutor it can only be so because such supervisor is by the statute, creating such officer, designated as “the chief executive officer of the county.” If his authority rests upon this, then it seems to us, that by the same token and the same process of reasoning, members of the board of chosen freeholders, as well as the present prosecutor, must be “subordinate officers,” in comparison with the county supervisor. This, we think, would lead to an absurd conclusion. But there is another reason that seems to us to be controlling and conclusive and that is that the power to appoint the superintendent is and always has been in the board of managers and such power to appoint is complied with the following right in the appointee, “and shall hold office at the pleasure of such board” (board of managers).

We conclude, therefore, that the respondent, county supervisor, was without authority and jurisdiction to hear and pass upon the charges in question and therefore the judgment brought before us must be set aside.


text:
    JOSEPHINE MILLIKEN ET AL., v. YELLOW CAB COMPANY, INCORPORATED.
    Submitted January term, 1930
    Decided May 6, 1930.
    Before Gummeee, Chief Justice, and Justice Campbell.
    Eor the rule, Joseph Coult.

    Contra, John W. McGeehan, Jr.

   Pee Cueiam.

Josephine Milliken was about to become a passenger for hire in a cab of the defendant, and as she was entering the vehicle, the driver suddenly and forcibly closed the door and her foot was caught and she was thrown forward to the floor of the car and injured.

At the trial negligence and liability of the defendant were admitted. The plaintiff Josephine Milliken has a verdict for $2,000 and her husband, the other plaintiff, has a verdict for $100.

These verdicts we are asked to set aside upon the single ground that they are excessive.

An examination and consideration of the proofs does not bring us to this conclusion.

The rule will therefore be discharged, with costs.


text:
    LOUISE G. WINGERT, GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF WILLIAM WINGERT, DECEASED, PLAINTIFF, v. ALEX DANSON, DEFENDANT.
    Submitted October term, 1929
    Decided May 6, 1930.
    Before Gtjmmere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the plaintiff, Francis A. Casiellcmo, Jr.

    Eor the defendant, McCarter & English.

   Per Curiam.

Both plaintiff and defendant have rules. The plaintiff, as general administratrix, has a verdict of $6,000. Upon the count in the complaint alleging right to recover damages for the death of her decedent, plaintiff as administratrix ad prosequendum was nonsuited.

Under the plaintiff’s rule the sole ground urged is directed at the alleged error in nonsuiting.

We think this was not error. Migliaccio v. Public Service Railway Co., 101 N. J. L. 496; affirmed, 102 Id. 442. Also, see same ease, No. 35 of this term of this court.

Under the defendant’s rule, portions of the court’s charge instructing the jury that they might consider aggravation of a cancerous condition from which decedent was suffering, are attacked as being erroneous. We think this is not so.

Defendant further attacks the verdict as being excessive.

We do not find it to be so.

The rules will therefore be discharged.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. THOMAS A. ARCHIPLEY, PLAINTIFF IN ERROR.
    Submitted October term, 1929
    Decided May 6, 1930.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the plaintiff in error, Francis A. Gordon and Harry Grossman.

    Eor the defendant in error, Abe J. David and Walter 0. Tenney.

   Per Curiam.

Plaintiff in error was convicted of the crime of extortion, and the judgment of conviction is before us under a strict Avrit of error and under section 136 of the Criminal Procedure act.

Erom amongst the thirty-two assignments of error and specifications of causes for reversal, there is one only that we need consider, inasmuch as it requires a reversal. That one is number 14, by which it is urged that the trial court erred in charging the jury as folloAArs:

“The statute provides that any judge, magistrate, sheriff, coroner, constable, jailor or other officer as aforesaid who shall receive or take, by color of his office, any fee or reward Ayhatsoever not allowed by the laws of this state for doing his office,- shall be guiltjr of a misdemeanor.”

The statute in question had no application to the facts as established by the state, with respect to any act with which the plaintiff in error was charged. Plaintiff in error did not occupy any office or position covered by the statute referred to. Under the circumstances this amounted to prejudicial error requiring a reversal.

The judgment below is reversed.


author: Pee Cubiam.

text:
    DIEDRICH ROESING, BY NEXT FRIEND, ET AL., PLAINTIFF, v. E. H. MILLER TRANSPORTATION COMPANY ET AL., DEFENDANTS.
    Submitted October term, 1929
    Decided May 6, 1930.
    Before Gummeee, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, George W. King, Jr.

      Contra, Edward Stover.

   Pee Cubiam.

The infant plaintiff has a verdict for $2,500 for personal injuries resulting from the alleged negligent operation of a motor truck.

This we are asked to sot aside upon the sole ground that it is against the weight of the evidence upon the question of negligence.

The proofs do not make for such a result in onr minds and the rule will therefore be discharged, with costs.


text:
    MORRIS S. ALEXANDER, APPELLANT, v. SIMON MILLER ET AL., RESPONDENTS.
    Argued October 2, 1929
    Decided May 6, 1930.
    Before Gummeke, Chiee Justice, and Justices Kaliscec and Campbell.
    Eor the appellant, Harry Levin.

    For the respondents, Milton M. Unger.

   Pee Cueiam.

Appellant sued to recover the sum of $875 for brokerage commissions for the sale of premises 522-524-526 South Orange avenue, Newark. There was no brokerage agreement in writing but the plaintiff-appellant relies upon section 10 of the statute of frauds (1 Comp. Stat., p. 1453) as a basis for his right to recover. A judgment of nonsuit was directed in favor of the defendant Simon Miller, and at the close of the entire case a verdict was directed in favor of the remaining defendant, Pauline Miller, and a judgment against the plaintiff below entered thereon.

For reversal of such judgments various grounds are urged. ■ 1. Error in rulings excluding evidence.

We find no error in such action.

2. and 3. Error in nonsuiting as to Simon Miller and directing a verdict in favor of Pauline Miller.

We are unable, from the proofs, to find any merit in either of these grounds.

The judgments under review will be affirmed, with costs.


author: Memorandum by Paekee, J.

text:
    STATE OF NEW JERSEY v. JOHN BORG AND CHARLES ROSENBERG, PROSECUTORS.
    Decided May 3, 1930.
    Before' Paekee, J., at chambers.
    For the state, Edward 0. West and Andrew 0. Wittreich.

    For the defendants-prosecutors, Robert Carey and Harry Lane.

   Memorandum by Paekee, J.

The indictment was removed to this court by certiorari in view of sworn allegations that the grand jury had been illegally chosen, that they had been subjected to improper influences and that they had found the indictment without evidence and that they had been guilty of misconduct in their deliberations. The present motion is addressed mainly to the last point. During the taking of depositions on the part of the prosecutors, a member of the grand jury was sworn as a witness, and was asked whether at a certain session of the grand jury he did not vigorously protest against the finding of the indictment on the ground that there was no evidence to warrant it, and that it was an ■entirely improper and irregular partisan procedure. This question led to a heated argument between counsel, and finally the witness stated in substance that while he would like to answer it, he felt that the oath of secrecy taken by him when sworn as a grand juror forbade him to do so, although if competent judicial authority should hold otherwise, he would answer.

The present motion, based upon this and probably upon other similar incidents occurring in the course of the depositions, is “for an order permitting and directing [the grand juror in question] any other members of the Bergen county grand jury which handed up the indictment in the above entitled matter, the prosecutor, and any other persons who may be sworn and called to testify before the Supreme Court examiner under the rule entered herein, permitting the taking of depositions, to answer questions relating to the testimony and happenings within the grand jury room relating to the indictment found in this cause, and for such other and further relief as may be proper.”

It will be observed that the motion is broad enough to include not only grand jurors, the prosecutor and clerk of the grand jury, but also witnesses before that body. As to these' last, I do not understand that any difficulty arose on the taking of the depositions; and the rules relating to witnesses have always been more liberal than those relating to members of the grand jury, largely, no doubt, because the witnesses are not sworn to secrecy, as intimated by the present Chief Justice in State v. Fish, 90 N. J. L. 17. The judgment in that case was reversed. (91 Id. 228), but on grounds not affecting the point in hand. In State v. Silverman,, 100 Id. 249, it was held that a witness may be asked on cross-examination for the purpose of impeaching his testimony, whether he had not testified otherwise before the grand jury, and if he denies it, the denial may be contradicted, for example, by the clerk of the grand jury (State v. Bovino, 89 Id. 586), or, as held in Massachusetts, the foreman might testify that the witness did not appear before the grand jury at all. Com. v. Hill, 11 Cush. 137. And according to the opinion in the Eish case, supra (at p. 19), obiter perhaps, but still important to con-aider here, “a witness who has been examined before a grand jury is under no legal obligation to refrain from stating what was said to and by him while there.” (Italics mine.) The antithesis is that members of the grand jury “and those associated with them in the administration of justice,” are under such obligation.

Touching disclosure by members of the grand jury itself of matters occurring at a session of that body, it may be said that as to some matters, they cannot be permitted to testify; as to others they are perhaps privileged from testifying but may waive that privilege; as to still others they are not even privileged. The rule varies according to the stage of the grand jury proceeding. The discussion of this matter in Greenl. Evid., § 252, was approved in Com. v. Hill, ubi supra, and that case was followed in State v. Silverman, also cited above.

Taking up the precise point involved, we have here an indictment found, brought to this court on certiorari after discharge of the grand jury that found it, and depositions in progress bearing on a proposed motion to quash that indictment. The indictment of course has not been tried. A member of that grand jury is sworn in the taking of depositions and is asked whether he did not protest against the finding of the indictment because there was no evidence to support it. If we accept the view of Professor Wigmore (Wig. Ev. S., 2361) the grand juror cannot be compelled to answer such a question, but he is privileged from so doing and may waive that privilege; although he will not be permitted to state what other grand jurors may have replied. On the other hand, the rule as stated in Greenleaf is that “they are not permitted to disclose who agreed to find the bill of indictment, or who did not agree; nor to detail the evidence on which the accusation was founded.”

The text in Wigmore is supported by two cases holding that the grand juror cannot be compelled to testify, but neither case involved directly the question of permitting him to do so at his option.

I deem the rule in Greenleaf to be the safer and more practical one. Moreover, it is adopted in Commonwealth v. Hill, and approved in State v. Silverman.

As to proof by witnesses before the grand jury, or other persons, that such and such evidence was given, the. old case of State v. Dayton, 23 N. J. L. 49, 56, 57, is conclusive on that point. It seems to hold that the sufficiency or insufficiency, competency or incompetency, of the evidence before the grand jury is irrelevant on a motion to quash. It intimates, page 57, that the court may quash for misconduct of the grand jury. But how that misconduct, if occurring in the grand jury room, is to be proved is not intimated.

The result I reach as a single justice on this present motion (subject of course to reversal or modification by the court in banc) is that so far forth as it relates to members of the grand jury it should be denied. As to witnesses before that body, there is nothing specific before me, and hence any ruling would be premature.

It is suggested that “the purpose of secrecy has been effected” and consequently the obligation has ceased from that time. I cannot agree that such purpose is fully effected when indictment is found. If at that juncture the grand jury proceedings are to be thrown wide open, the possible damage, to the interests of the public by way of aiding the accused would be incalculable. .

Counsel may submit a rule denying the application with respect to members of the grand jury and those associated with them in the administration of justice, and dismissing it without prejudice as to others.


author: Pee Cubtam.

text:
    KATHRYN SCHARWATH, PLAINTIFF, v. CATHERINE BROOKS (NOW CATHERINE BROOKS SCHARWATH), DEFENDANT.
    Argued October 2, 1929
    Decided May 6, 1930.
    Before Gummebe, Chief Justice, and Justices Kalisch and Campbell.
    Eor the rule, Alexander Simpson.

      Contra, Ralph E. Lum.

   Pee Cubtam.

This is an action for alienation of affections of the plaintiff’s former husband, whom the plaintiff has divorced. The husband has since married the defendant who is charged with alienating his affections.

Plaintiff has a verdict of $70,000 as the result of a second trial. The result of the first trial was a verdict of $90,000, ■which was set aside by this court as grossly excessive. 7 N. J. Mis. R. 397.

We are asked to set the present verdict aside for the reasons that it is (a) Excessive, (b) Shows passion, prejudice and bias, (c) Contrary to the charge of the court, (d) Because the trial court abused its discretion in compelling the defendant to proceed with the trial when the proof was that she was then seriously ill and could not attend and prosecute her defense.

We think the contention that the verdict is excessive and is indicative of passion, prejudice and bias is sound.

The proofs indicate most clearly that the verdict is excessive and they do not justify a finding in any such amount.

It is true that ordinarily a second verdict will not be disturbed but that is not an absolute rule. On the contrary, any number of verdicts will be set aside where they are clearly ■ improper and are shown to be the result of prejudice, passion or mistake.

We think that under the conditions and circumstances established by the proofs a verdict of $20,000 would be ample and generously adequate and unless plaintiff shall file her consent to a reduction of the present verdict to that amount, within thirty days from service upon her of a proper order entered hereunder, this rule will be made absolute and a venire de novo issue as to the question of damages.


text:
    ELIABETH OLLEMAR, PROSECUTOR, v. TOWN OF IRVINGTON, IN THE COUNTY OF ESSEX, RESPONDENT.
    Argued May 6, 1930
    Decided May 7, 1930.
    Before Justices Parker, Campbell and Bodine.
    Eor the plaintiff, Reed & Reynolds.

    Eor the defendant, Charles E. Stewart.

   Per Curiam.

Our examination of the facts and argument presented lead us to the conclusion that the application for the writ of certiorari should be denied.


text:
    SOPHIE BOKOWSKY ET AL., PLAINTIFFS, v. PASSAIC-ATHENIA BUS COMPANY, DEFENDANT.
    Submitted October term, 1929
    Decided May 6, 1930.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, William P. Braun.

      Contra, Peter J. McGinnis.

   Per Curiam.

Plaintiff was a passenger on a bus of the defendant. She desired to alight at Harrison street in Passaic. She either signaled in the usual way or made known to the operator that she desired to leave the bus at that street. She says the bus came to. a stop and as she was in the act of alighting it suddenly started and she was thrown and injured. The bus driver says the bus had stopped and remained standing but that plaintiff fell as she was leaving from some cause other than one for which he was responsible. She has a verdict for $5,000 and her husband, the other plaintiff, for $350.

These we are asked to set aside because they are said to be against the weight of the evidence and because the trial court erred in refusing to nonsuit.

From the proofs we find neither of these grounds to be substantial and the rule will therefore be discharged, with costs.


text:
    STEPHEN JONES, PLAINTIFF-RESPONDENT, v. U-DRIVE-IT COMPANY ET AL., DEFENDANTS-APPELLANTS.
    Submitted October term, 1929
    Decided May 6, 1930.
    Before Gummere, Chief Justice, and Justices Kalisch and Campbell.
    Eor the appellants, Perkins & D'rewen.

    For the respondent, I. Faerber Goldenhorn.

   Per Curiam.

This is an action for the purpose of recovering damages for malicious prosecution. Respondent has a verdict and judgment.

It is urged that this judgment should be set aside and reversed upon the grounds, generally speaking, because the trial court erred in refusing to nonsuit and to direct a verdict in favor of appellant. After verdict appellant had a rule to show-cause why the verdict should not be set aside and urged and argued as grounds therefor that the verdict was against the weight of the evidence and excessive. Upon a hearing under such rule the trial court discharged it. Where it is urged under such a rule the verdict is against .the weight of the evidence such insistence is tantamount to an admission that there was some evidence, although insufficient, to support the verdict. Under such circumstances a reservation of exceptions to refusal to nonsuit or direct a verdict is unavailing as a ground of appeal. Catterall v. Otis Elevator Co., 103 N. J. L. 381.

The judgment under review is therefore affirmed, with costs.


author: Pee Curiam.

text:
    WILLIAM B. STEIN ET AL., AS WM. B. STEIN & COMPANY, PLAINTIFFS-RESPONDENTS, v. ABRAHAM V. BRODER, DEFENDANT-APPELLANT.
    Argued October 11, 1929
    Decided May 6, 1930.
    Before Gummebe, Chief Justice, and Justices Kalisch and Campbell.
    Eor the appellant, Charles Handler.

    Eor the respondents, Fast £ Fast.

   Pee Curiam.

The action was to recover the purchase price and commissions for the purchase of one hundred shares of stock of the Firemen’s Insurance Company. The respondents have a judgment therefor.

This the appellant, defendant below, seeks to have reversed upon several grounds:

1. Because the trial court erred in excluding answers to certain questions addressed to the plaintiff Stein.

We think the rulings were proper as the questions were not pertinent to the issues involved in the cause then being tried.

2. Because the plaintiff having hypothecated the stock in question, for a bank loan, such transaction amounted to a conversion by it and it was error for the trial court to refuse to direct a verdict in favor of the defendant-appellant.

This was not error. The proofs were that the stock in question would be released as collateral security to the loan in question upon payment to the bank of the purchase price of such stock. This, under the law and custom of brokers, does not make for a conversion. Moreover, this question was submitted to the jury and they found against the defendant. This submission probably placed the defendant in a more favorable position than he was entitled to.

3. Because the court erred in refusing to direct a verdict in that there was a variance between the proofs and the allegations of the complaint.

It is insisted that the complaint set up an absolute sale as between the plaintiffs and the defendant, while the proofs tended to show an executed brokerage agreement to purchase for the account of the defendant.

While the complaint may be said to be inartistically drawn, nevertheless, it fairly sets up a brokerage agreement upon the part of the plaintiff to purchase for the account of the defendant the stock in question.

4. Error in the charge of the court as follows: “This action as you have heard is brought by a brokerage firm to recover the purchase price and commission on one hundred shares of Eiremen’s Insurance Company stock.”

This is the merest sort of an extract from the charge. A reading of the entire charge shows that the court explicitly and carefully submitted to the jury the contention of both parties; that of the plaintiffs that the transaction was that of brokerage to purchase the stock for the account of the defendant, and that of the defendant that it was a direct and absolute sale of the stock by plaintiffs as the owners thereof to the defendant.

It is also urged that this case is controlled by the finding of part 3 of this court in case 409 of the October, 1929 term, of this court, in the matter of Pascal v. Hess. We are inclined to think this would be so if in the present case a verdict had been directed in favor of the plaintiff instead of submitting to the jury for determination the character of the contract. We think that here, as there, a jury question, upon that point, was presented. In the case referred to the trial court took the question away from the jury. Here the question was submitted to the jury and it found for the plaintiff-respondent.

Finding no error in any of the grounds urged we conclude that the judgment below should be affirmed, with costs.


author: Pee Oueiait.

text:
    DAVID WARSHAW, PLAINTIFF-APPELLANT, v. FRANK DE MAYO, DEFENDANT-RESPONDENT.
    Argued January 22, 1930
    Decided May 6, 1930.
    Before Gummeke, Chief Justice, and Justice Campbell.
    For the appellant, Samuel Hilfman.

    For the respondent, Nicholas Martini.

   Pee Oueiait.

This is a mechanics’ lien claim action. The claim was filed July 23d, 1928, and the summons and complaint issued the same day. The last material, for which the claim was filed, was furnished March 23d, 1928.

A motion was made to strike out the summons and complaint upon the ground that the date of furnishing the last material as shown by the statement attached to the complaint was March 20th, 1928, thus placing the action out of time. Upon the hearing upon this motion, it clearly appearing, that this date in the statement was erroneous the court permitted the plaintiff to amend and this was done.

Subsequently the defendant moved to strike out the summons and complaint and dismiss the lien claim upon the ground that the claim was not filed within four months from the date of furnishing the last materials and because the summons and complaint were not issued within the same period. This motion seems to have been granted by the learned Circuit judge who heard it. In so doing we conclude he fell into error. It is a rule of construction and practice in this state, of long standing, that in computing periods of time from a date or event, the day or the date of event is to be excluded from such computation. McCulloch v. Hopper, 47 N. J. L. 189.

Excluding, in the present case, March 23d, 1928, the date of furnishing the last materials, would cause July 23d, 1928, to be the last day within the four months from March 23d and therefore the filing of the claim and -the issuance of the summons and complaint on July 23d, 1928, were within time.

But if this were not so it would appear that the proceedings would still be within the time because July 22d, 1928, which appellant claims was the last day, fell on a Sunday and that being so the filing of the claim and issuance of summons and complaint upon the next secular dajr, July 23d, brought them within time. Von de Place v. Weller, 64 N. J. L. 155.

The judgment below is reversed.


author: Pee Cuetam.

text:
    JACOB WILLIAMSON, PLAINTIFF-RESPONDENT, v. DAVIS BENDER, DEFENDANT-APPELLANT.
    Submitted October term, 1929
    Decided May 6, 1930.
    Before Gukmeee, Chief Justice, and Justices Kalisch and Campbell.
    Eor the appellant, Corn é Silverman.

    Eor the respondent, Samuel Daniels.

   Pee Cuetam.

This is an action to recover the amount of principal and interest upon a note made and delivered in Elorida.

The trial of the cause resulted in a judgment in favor of the plaintiff below, which judgment is attacked upon this appeal upon the following grounds:

1. That it was error to allow any interest because the note bore interest at the rate of eight per cent, and there being no proof that such was the legal rate in the State of Elorida, such rate being beyond the legal rate in this state made the transaction usurious and therefore no interest was recoverable. This is without legal merit. Usury to be an available defense must be pleaded and here it was not. Taylor v. Morris, 22 N. J. Eq. 606; Crane v. Insurance Co., 27 N. J. Eq. 484.

2. Numerous alleged errors in rulings upon evidence. We have examined all of these and find no error.

The judgment below will be affirmed, with costs.