text:
    SANDERS A. WERTHEIM, PLAINTIFF, v. BURNS BROTHERS, A NEW JERSEY CORPORATION, DEFENDANT.
    Decided August 21, 1934.
    Before Justice Perskie, in chambers, pursuant to statute.
    For the petitioner Michael Sokol, Schotland & Schotland.

    For the defendant, Burns Brothers, Applegate, Stevens, Foster •<& Beussille.

   Perskie, J.

Chapter 201 (Pamph. L. 1914, p. 410), inter alia, provides: “After the service of a summons and complaint * * * the attorney * * * who shall appear in said cause for such party instituting the action of law * * * shall have a lien for compensation upon his client’s cause of action, suit, claim or counter-claim, which shall contain and attach to a verdict, report, decision, decree, award, judgment or final order in his client’s favor, and the proceeds thereof in whosoever hands they may come; and the lien shall not be affected by any settlement between the parties before or after judgment or final order or decree. The court in which such action, suit or other proceeding is pending, upon the petition of the attorney, solicitor or counselor-at-law, may determine and enforce the lien.”

This matter comes before me on the return of a rule to show cause on the petition of Michael Sokol, an attorney-at-law of this state, why an attorney’s lien should not be determinued in accordance with the aforesaid act. The facts are not in serious dispute and are substantially as follows: Sokol instituted a suit, on July 13th, 1932, in the Supreme Court of this state (Monmouth county), in behalf of plaintiff and against the defendant for the sum of $663,203.93 for unpaid salaries as president and general manager of the defendant corporation and for moneys advanced to and in behalf of the defendant. Sokol’s compensation was to be a reasonable percentage of the amount proved to be owing by defendant to plaintiff. (No point is made on this score, i. e., as to basis of compensation.) A demand for a bill of particulars was made for the defendant and it was supplied. After defendant filed its answer application was made to strike a part of it which related to a portion of the claim, namely, $140,492.02. Hearing on the motion was continued from time to time. Apparently before this motion was disposed of petitioner ascertained that plaintiff had signed an arbitration agreement in October of 1932. This agreement among other things, it is said, provided that the subject-matter of the pending suit, together with claims which the defendant and other corporations made against plaintiff in the State of New York, should be submitted to arbitration and the award was to become a judgment of the Supreme Court of New York; that plaintiff was to discontinue the pending suit in New Jersey. Petitioner, on failure to satisfactorily provide for his compensation in the premises, refused to discontinue the pending suit. The arbitration in New York, commenced in December of 1933, still remains open.

Is the petitioner, under these circumstances, entitled to enforce his attorney’s lien?

Ordinarily the submission to arbitration of the subject-matter of a pending suit furnishes a ground for the discontinuance of the suit, where there is no stipulation to the contrary in the arbitration agreement. See Hazen v. Addie, 14 N. J. L. 333. To like effect are the eases collated in the footnote in 42 A. L. R. 729. In other words that an agreement to submit to arbitration, in the absence of a contrary provision, is tantamount to a discontinuance of the action.

Defendant agrees that the petitioner has a good and absolute lien on his client’s cause of action and further agrees that the lien may attach even if there is nothing tangible upon which to impress the lien. Rightly so. Levy v. Public Service Railway Co., 91 N. J. L. 183, 185; 103 Atl. Rep. 171; Ferraro v. City Hall Garage Co., 94 N. J. L. 209, 210; 109 Atl. Rep. 358. But it stoutly urges, in substance, that this application is premature; that the ultimate lien must attach to a verdict or award in favor of the plaintiff before the petitioner can look to the defendant for relief. This is not so. The question presently before the court for decision is whether it shall set in motion the legal machinery provided by the act for the proper determination and enforcement of the attorney’s lien for compensation upon his client’s cause of action.

Mr. Justice Garrison, for the Court of Errors and Appeals, in the case of Levy v. Public Service Railway Co., supra (at p. 185), held.

“Technically considered the situation is this: The statute of 1914 creates a new remedy for the enforcement of an old right. The new remedy is the lien given by the statute upon the client’s cause of action, suit, claim or counter-claim, and any verdict, report, decision, decree, award, judgment or final order and the proceeds thereof.” (Italics mine.)

The attorney’s lien, if any, is given under the statute upon the client’s cause of action, &c., and upon any verdict or award, <&c.

This application seeks to enforce the lien on the client’s cause of action and it is no legal answer, to the present application, to say that there has as yet been no award or judgment under the arbitration in favor of the plaintiff to which the lien may attach and for which the defendant may or may not be liable.

Our Court of Errors and Appeals, in Ferraro v. City Hall Garage Co., supra, has definitely construed and characterized the statute in question. Mr. Justice Kalisch for the court held (at p. 212) :

“Keeping in mind that the statute is for the benefit of the attorney who brings a suit or cause of action which is settled without his consent, it follows that the legal situation in which the settlement leaves the defendant or plaintiff is of no concern.”

The submission to arbitration, the provision thereof to discontinue the pending case, without the knowledge of petitioner, all tend to indicate that the attorney was about to be deprived of his rights, i. e., of determining and enforcing his lien on his client’s cause of action, as provided by the legislative enactment aforesaid. He seeks the aid of this court to preserve these rights. He is entitled to it. He shall have it. The rule to show cause is allowed with costs, and petitioner may proceed accordingly.


source: Caselaw Access Project

author: John C. Wegnek, Referee.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CLARENCE FOGG v. VAN SAUN COAL COMPANY, INCORPORATED.
    Decided July 10th, 1934.
    For the petitioner, Lester H. Fox.

    For the respondent, James J. Slceffington.

   As to whether or not freezing or frostbite are injuries arising out of and in the course of employment, there is an apparent conflict of authorities.

Under the New Jersey act, citing Bryant v. Fissell, 86 Atl. Rep. 458, to warrant a recovery, it must appear that the injury was caused by

(a) an accident,

(b) arising out of, and

(c) in the course of the employment.

This case further defines an accident as “an unlooked for mishap or untoward event which is not expected or designed.”

For an accident to arise out of and in the course of employment, it must be from a risk reasonably incidental to the employment.

A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service, and that such risk may be either an ordinary risk directly connected with the employment or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment.

Does frostbite come within this definition and is it such an extraordinary risk as to hold disabilities due thereto compensable ?

In Warner v. Couchman (L. R.—1911), 1 K. B. 351, it was held that a journeyman baker, who in his rounds delivered bread to his master’s customers on a cold day, had his hand frostbitten, was not injured “by accident arising out of his employment.”

Lord Cozen-Hardy, master of the rolls, in expressing his opinion in part states, “that in the present case there was nothing in the nature of the applicant’s employment which exposed him to more than the ordinary risk of cold to which any person working in the open air was exposed on that day.

In this particular case it is most interesting to note the opinion of the dissenting Lord Justice Moulton Fletcher, who, after reviewing the facts in the case, states in part that the applicant can indicate the day, time, circumstances, and place in which it occurred, so it bears no similarity to an industrial disease.

The dictum of Lord McLaren in the Scotch case of Stewart v. Wilson & Clyde Coal Co. (1902), 5 Fraser 120, covers “if a workman in the reasonable performance of his duties sustains a physiological injury as a result of the work he is engaged in this is an accidental injury in the sense of the statute.”

In France the Court of Cessation has held that as a rule the statute of April 9th, 1908, does not cover accidents due to the force of nature even though they occur in the course of the employment. Nevertheless if the employment has contributed to the bringing into play of these forces, or has provoked or aggravated its effects then the accident falls within the statute.

Thus as a general principle, the employer is not responsible for damages caused to his workmen by lightning, storm, sunstroke, freezing, earthquake, floods, &c. These are considered “force majesture,” which human vigilance and industry can neither forsee nor prevent. The victim must bear alone such burden, inasmuch as human industry has nothing to do with it and inasmuch as' the employe is no more subject thereto than any other person.

Loubar (LeKisque Professional No. 504) states this is what Mr. Leon Say called “the great professional risk of humanity.” See 1 Schneider, Workmen's Compensation Laws (23d ed.) 1107, 1108.

A perusal of the various cases covering frostbite and freezing reflects that the authorities are by no means in full harmony on the subject and we find some states holding frostbite .as compensable and others holding an opposite opinion.

In New Jersey we have the case of Sullivan v. Clark, 3 N. J. Mis. R. 924, which held frostbite compensable on the ground that if “a risk is common to all, such as frostbite, but the circumstances of the employment subjects the workman to a special hazard such as excessive exposure, it is compensable.'

In the Essex Common Pleas it was held that accidents due to the elements such as lightning, heat or cold, where the risk is general and equally applicable to everyone in the locality it is not to be deemed a risk incidental to the employment. See Chance (3d ed.) 21.

Eeference here is made to Burke v. Ballentine, 38 N. J. L. J. 105. The dicta in this case states in part “that if there is some circumstances peculiar to the employment which subjected the workman to great danger from the severity of the elements than would ordinarily be incurred by others not engaged in that particular employment; the accident does arise out of the employment.”

In' Lapsada v. Public Service Railway, 38 N. J. L. J. 102, it was held that petitioner was a casual employe and the question of compensability not discussed.

The'outstanding case in New Jersey is that of Kauffeld v. G. F. Pfund & Sons, 97 N. J. L. 335; 116 Atl. Rep. 487. In this case the same principal as promulgated in the case of Larke v. John Hancock Mutual Life Insurance Co., 97 Atl. Rep. 320, is held to govern “that when the employment brings a greater exposure than that to which persons generally in that locality are exposed, injury or death resulting therefrom, such injury or death does arise out of the employment.”

Under the caption of "force maj estuve" we have lightning, earthquake, storms, floods, sunstroke, freezing, &c. The later two can be considered hazards within the contemplation of the employer. Unlike lightning and the other forces of nature they are gradual in their development and ones to which exposure thereto can be usually contemplated.

Was the petitioner subject to any greater exposure than to which persons generally in that locality are exposed would appear to be the present rule but with this I disagree in so far as frostbites are concerned. If one hundred men are working in a factory and one is struck by a falling beam should he be denied compensation because his hazard was not any greater than the other ninety-nine ? It is true on the day in question there were hundreds of employes subject to the same exposure who were not subject to frostbite, should this then act as a precedent in determining whether or not compensation should be paid to one who did receive disability due to same?

Is frost bite “an unlooked for mishap or untoward event” such as to come within the definition of accident? Freezing comes suddenly and violently as distinguished from gradually and naturally or in ordinary course. An unlooked for mishap or untoward event is one occurring unexpectedly and not naturally or in the ordinary course of events. Freezing is such an untoward event which in my opinion brings same within the statute and is compensable providing as the dissenting Lord Justice in the Warren v. Couchman case heretofore referred states that injured persons can refer to day, time, circumstance and place.

In the case sub judice, petitioner, Clarence Fogg, was helper on coal truck. On morning of December 29th, 1933, he began work at eight A. m. ; made five or six trips in auto car with driver, petitioner delivering the coal. He wore two pairs of gloves. Driver would enter home of customer to have delivery receipt signed and collect for coal delivered while petitioner remained outside.

United States weather reports for that particular day in territory in which petitioner was employed read as follows: eight a. Mv one below; nine a. m., three below; ten a. m., two below; eleven a. m., one below; twelve noon, zero; one p. M., four above. When petitioner went to lunch he found fingers frozen. Petitioner, by competent testimony, clearly shows all the required elements as to time, place, day and circumstance and I therefore am holding his case as compensable.

This case is in every way similar to Days v. Trimmer & Sons, 176 N. Y. App. Div. 124; 162 N. Y. Supp. 603.

I am, therefore, setting this matter for hearing for the purpose of taking medical testimony to determine what disability petitioner has sustained.

John C. Wegnek, Referee.


author: Lloyd, J.

text:
    ANNIE BROWN, INDIVIDUALLY AND EXECUTRIX OF THE LAST WILL OF MEYER BROWN, DECEASED, APPELLANT, v. STEIN-JOELSON BENEVOLENT ASSOCIATION, A CORPORATION OF NEW JERSEY, RESPONDENT.
    Argued May 1, 1934
    Decided August 16, 1934.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Jacob L. Bernstein (Samuel Rosenblatt, of counsel).
    For the respondent, Meyer W. Stein (William Sheps, of counsel).
   The opinion of the court was delivered by

Lloyd, J.

Appellant, as executrix of her deceased husband, sued in two counts to recover death benefits and burial grave expenses accruing upon the decease of the latter; the first count calling for the payment of $400 and the second for $100. Judgment was given in her favor on the second count, but on the first count judgment was rendered for the defendant, and from this latter judgment plaintiff appeals.

Plaintiff’s husband, Meyer Brown, was a member of the defendant society and died with dues called for by the society’s constitution and laws more than two quarters in arrears. The constitution provides in article 15, paragraph 11, that “any member in arrears for more than a period of two quarters shall not be entitled to any benefit except a burial grave.”' Paragraph 3 of article 5 provides: “The financial secretary shall keep an accurate account, call the members to every meeting by postal card, two meetings before the end of the quarter send enclosed letters to each member stating their indebtedness to the society, at the first meeting of the quarter to announce a list of members in arrears from the last quarter, to send registered letters by resolution of the society to members in arrears.”

Hone of these notices appear to have been sent and the question presented is whether failure to pay the dues automatically deprived the member of financial benefits in case of his death, or whether as a condition precedent thereto a notice of delinquency must first be given.

The courts have been reluctant to construe contracts of this character in such manner as to effect a forfeiture, and have read similar provisions respecting notice and forfeiture as interdependent, whether the effect is loss of membership or loss of property right in the form of financial benefits accruing to the member. This is illustrated in the recent case of Bushko v. The Society, &c., 106 N. J. L. 504; 148 Atl. Rep. 724. In that case the by-laws provided that failure to pay dues for a full three months shall deprive the member of sick or death benefits. In the application for membership the applicant promised to pay the dues of the society every month regularly, and in case of any disaster happening to him he would not claim any benefits if he be three months in arrears. This was followed by this sentence: “If I be notified by registered letter sent by the secretary of the society and I do not then settle my account, I shall be expelled from the society. If I settle my account after being notified, I shall pay the fine of twenty-five cents to the society for the trouble to the society caused by me.”

In construing this contract it was held that the two provisions should be read together and that as so read the forfeiture could only arise upon the notice being given. So we think must the provisions in the present case be read.

While it may be argued that a member must take cognizance of his own defaults and keep track of the payments of his own dues, it would seem that where notice is provided for in the laws of the society, he is entitled to rely on them and to assume that he will get notice of any delinquency, either consciously or otherwise arising, before a forfeiture of all rights will be exacted of him.

The judgment in favor of the defendant on the first count will be reversed.


text:
    RECORD HOLDING COMPANY, RESPONDENT, v. NEW YORK FIRE INSURANCE COMPANY, APPELLANT.
    Argued May 1, 1934
    Decided August 16, 1934.
    Before Justices Lloyd, Case and Dongbs.
    For the appellant, Lionel P. Krisleller (Jacob L. Newman and Saul J. Zuclcer, on the brief).
    For the respondent, Sim,on L. Frisch.

   The opinion of the court was delivered by

Lloyd, J.

This is a fire insurance case in which the plaintiff recovered a judgment for $500 in the Second District Court of Newark. From this judgment the defendant appeals.

A number of questions are raised in the appellant’s brief, none of which do we think important except the one dealing with the failure to give immediate written notice of the fire as required by the terms of the policy. As to this there was a failure. What happened, according to the testimony both of Gelman, president of the plaintiff company, and Semel, the defendant’s agent, was that Gelman verbally notified Semel of the fire, and that Semel in turn undertook to send a letter to the company, the latter testifying that a girl in his office was directed to write a letter reporting the fire. Whether she did write it and what she wrote does not appear. He dictated a letter but could not say whether it was mailed or stamped or even directed. After dictating the letter he seems to have given it no further attention and the girl herself was not called. This clearly was not compliance with the requirement of the company that written notice be given of the fire.

Respondent contends, however, that there was a waiver of strict compliance when Semel accepted verbal notice on behalf of his company and proceeded to act upon it by communicating with his principal. We think this contention is sound and that there was a waiver of any further requirement from the company as to notice. This waiver the agent could give. Snyder v. Merchants Insurance Co., 59 N. J. L. 69; 34 Atl. Rep. 945; Cheshansky v. Merchants Fire Insurance Co., 102 N. J. L. 414; 131 Atl. Rep. 910.

It is next urged that the court erred in admitting in evidence a letter written by the plaintiff sixteen days after the fire. It was not contended that this letter proved notice, nor was it offered for that purpose. It was competent, however, as being correspondence between the parties on the subject-matter.

The next point made is that the court erred in refusing to nonsuit. This is covered by the first question, and the fourth is substantially the same.

Another point is that there was error in failing to specifically find that the plaintiff could only recover five-sixths of his total damage in view of the fact that there was an additional policy on the property in another company for $1,000 and that the policy sued on had the proportional loss provision. This would appear to have been entirely cleared up at the beginning of the case. Plaintiff’s counsel admitted that there was another policy and that all that could be recovered from the appellant was five-sixths of the amount of the loss, which it was claimed aggregated more than $800, and judgment was asked for but $500, the excess being waived. The proofs conformed to this and there was no error harmful to the appellant in that the court failed to mention the proportional feature of the policy because under the proofs by no possibility could the plaintiff recover more than such a proportion in view of his waiver of any sum beyond the jurisdiction of the court.

The judgment is affirmed, with costs.


text:
    MARIE C. SCHANTZ, RESPONDENT, v. SEARS ROEBUCK & COMPANY, APPELLANT.
    Argued May 2, 1934
    Decided August 16, 1934.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Jacob L, Newman (Lionel P. Eristeller and Saul J. Zucker, on the brief).
    For the respondent, Augustus S. Dreier, of counsel.
   The opinion of the court was delivered by

Lloyd, J.

The plaintiff recovered a verdict and judgment for false arrest. The defendant appeals and the grounds relied on for reversal are that its motion for nonsuit and for the direction of a verdict in its favor should have been .granted.

Plaintiff was employed by the defendant as a sales lady. Toward the close of the day on October 4th, 1933, as she was passing the office of the assistant manager of the store, she was called in by that gentleman and introduced to a man named Wessley, an investigator in the employ of the Will-mark Service System, a detective organization with whom the defendant had a contract to investigate the efficiency and faithfulness of its employes. At Wessley’s request the assistant manager left the room and Wessley proceeded to interrogate her about a fifty cent sale of paint which was claimed to be unaccounted for. He asked what money she had on her person and when she replied “none,” she was placed in the ■custody of another employe and requested to go to the rest room, bring back her purse and exhibit its contents. This she did and then asked if she might go and was told “no,” And that “this was not the first time.” After signing a statement which Wessley had prepared, she again asked if she might go and was again refused. The investigator reported to the manager who directed her detention until he came up, and returned after some delay and told her to “come in to-morrow.” When she reported the next morning she was told she could only be reinstated through the Philadelphia ■office. .

It is contended on the appeal that she was not detained by the assistant manager, that the investigator acting under an independent contract could not bind the defendant by what he did, and that in any aspect the action of the investigator did not amount to an imprisonment.

We think that in this condition of the proofs neither of the defendant’s motions could have been granted. It was open to a jury to find that there was an unlawful restraint ■of the plaintiff’s liberty and that this was with the authority oí tlie defendant. Undoubtedly the latter was responsible for what the assistant manager said and did, and when he called the plaintiff in his office, and at the request of Wessley left the room, leaving the plaintiff in apparent charge of the latter, it became responsible for all that followed—even if the defendant’s contract with the Willmark Service constituted the latter an independent contractor, which is doubtful. The latter through its agent was doing exactly what it had contracted to do at so much per month. This was to “checkup” on the efficiency and faithfulness of defendant’s employes, the contract itself partaking as much of the nature of an employment as that of an independent relation.

It is not necessary, however, to determine the character of this relationship as we think it was open to the jury to find that what Wessley did was participated in by the defendant’s assistant manager in charge of the store, its employes and its management.

While the circumstances proved ill connection with the particular sale of goods clearly justified investigation, such investigation must scrupulously avoid trenching upon the personal liberty of the individual. If action justifying personal restraint be indicated it must, in cases like the present, be -taken through the authorities constituted by law for the purpose.

The judgment is affirmed, with costs.


author: Donges, J.

text:
    DUNCAN BUILDING AND LOAN ASSOCIATION, PLAINTIFF, v. LIVERPOOL, LONDON AND GLOBE INSURANCE COMPANY ET AL., DEFENDANTS.
    Argued May 1, 1934
    Decided September 8, 1934.

      Before Justices Lloyd, Case and Donges.
    Por the plaintiff, Henry flwald, Sr., and Mark Sullivan.
    Por the defendants, Joseph T. Lieblich.

   The opinion of the court was delivered by

Donges, J.

Application is made for the retaxing of costs in five cases in this court, in which the applicant is plaintiff and the respondents are defendants. Cum. Supp. Comp. Stat. 1925-1930, p. 730.

Respondents were the owners of a property damaged by fire and brought suits against the insurance companies to recover their damage. Shortly after these suits were brought, the plaintiff, being a mortgagee of the properties, brought five separate suits against the same insurance companies and joined the owners as co-defendants in each of the five suits. When these last five cases were moved for trial, plaintiff moved Judge Acker son to consolidate the actions. No such order was made. The cases were, however, joined for purposes of trial and were heard together.

During the trial, which resulted in directed verdicts in favor of the defendants-respondents and in verdicts for plaintiff against the insurance companies in each of the five suits, motion was made by counsel for the companies that plaintiff mortgagee be allowed one taxed bill of costs, as if the suits were consolidated. Judge Ackerson dictated in the record a stipulation as follows:

“After argument counsel have agreed among themselves that the question of costs shall be disposed of in the following manner, that the plaintiff shall be entitled to but one set of costs as though the cases were consolidated but that the order of consolidation will not be pressed under those circumstances, plus, of course, the actual disbursements of the other four cases of this group.”

Counsel for the plaintiff now insists that the defendants Ferro, owners, are bound by this stipulation. Counsel for Ferros insists he took no part in the discussion and is not bound by the stipulation.

The stipulation does not, by its terms, include the Ferros. It relates to costs as between the plaintiff and the insurance companies. Since Ferros recovered a judgment in each case, ■and since plaintiff saw fit to bring five separate suits and to improperly, as the verdict shows, make them parties to each suit, and inasmuch as no stipulation or other reason appears why they should not have their costs, it follows that they are entitled to have costs taxed in each case.

Under section 6 of the Practice act of 1912 the plaintiff might have brought one suit against all of the defendants.

The application is denied, without costs.


text:
    ROBERT D. REYNOLDS ET AL., PLAINTIFFS-RESPONDENTS, v. FANNIE D. HERMAN ET AL., DEFENDANTS-APPELLANTS.
    Submitted May 11, 1934
    Decided September 8, 1934.
    Before Justices Lloyd, Case and Donges.
    For the appellants, Myron E. Ackron.

    For the respondents, Saul Cohn and Michael Silver.

   The opinion of the court was delivered, by

Donges, J.

This is an appeal from a judgment of the Essex County Circuit Court entered upon an order by Judge Porter striking defendants’ answer. The suit was in ejectment by the holder of a mortgage alleged to be in default against the holder of the title of her husband, who was a tenant of part of the premises. It appears that the mortgage was in default and an agreement extending the due date of the mortgage to August 1st, 1937, was entered into upon condition that the appellant Fannie D. Herman make certain monthly payments. The complaint alleged that these payments had not been made and that the agreement had been breached. The answer was a general denial. Motion to strike was made. Defendants’ affidavits are vague and do not in terms deny the failure to make the monthly payments. Judge Porter held the answer sham and struck it out. Subsequently he allowed a rule to show cause which was argued and dismissed.

Grounds of appeal 1, 2, 3, 4 and 5 have to do with the propriety of striking the answer. Defendants are precluded from arguing these matters on appeal because of the allowance of a rule to show cause.

The rule contained a provision that it “shall not be a waiver of any right to appeal and that all exceptions taken heretofore are hereby reserved to defendants in the event of such appeal.”

It appears that the only exception the defendants could have had was to the striking of the answer, and also that the only matter that could be submitted on the rule was the propriety of striking the answer. This was the question argued and determined against the defendants. A reservation of exception is of no avail when the appellant proceeds to assign the same matter as a reason under the rule. He-is taken to have abandoned the exception. Cleaves v. Yeskel, 104 N. J. L. 497; 141 Atl. Rep. 814; DeRose v. Delaware, Lackawanna and Western Railroad Co., 109 N. J. L. 135; 160 Atl. Rep. 423. Therefore, these grounds of appeal are not arguable here.

Grounds 6, 7, 8 and 9 are directed to the action the trial judge took in disposing of the rule to show cause. This-action rests in the sound discretion of the court and is not assignable as a ground of appeal in the absence of abuse of discretion. No abuse of discretion is alleged, so nothing is-brought up by these grounds.

The tenth ground is that it was error to enter judgment for possession generally against Abraham M. Herman because he had disclaimed any interest in the premises except in the-second floor; the contention being that judgment for possession of the second floor only should have gone against him. This is entirely frivolous and without merit.

The judgment is, therefore, affirmed, with costs.


text:
    JACOB I. POLKOWITZ, PLAINTIFF-RESPONDENT, v. PAUL W. EWING, DEFENDANT-APPELLANT.
    Submitted May 11, 1934
    Decided September 8, 1934.
    Before Justices Lloyd, Case and Donges.
    Por the appellant, William D. Danberry.

    Por the respondent, Jacob I. Polkowitz, fro se.

   The opinion of the court was delivered by

Donges, J.

This is an appeal from a judgment of the Perth Amboy District Court in favor of the plaintiff. The state of demand sought to recover $200 upon two counts. The first was on a non-negotiable promissory note for $200 dated January 26th, 1933, due three months from date, and the second was on a stipulation signed by defendant-appellant.

The parties are attorneys. It appears that Ewing, the defendant-appellant herein, represented Margo Realty Corporation, defendant in a suit brought by William Weinberger, who was represented by Polkowitz, the plaintiff-respondent herein. The action was tried before a justice of the peace and resulted in judgment for $200 in favor of Weinberger. Ewing’s client appealed to the Common Pleas but the appeal was not perfected, so that Weinberger was entitled to have it dismissed for lack of prosecution. Thereupon Ewing entered into a stipulation that if Weinberger would permit the appeal to be disposed of on the merits, he, Ewing, would pay the amount of the judgment if the Common Pleas reversed. If the judgment was affirmed, then Weinberger was to look to the defendant therein, Margo Realty Corporation, for collection. The note was given as part of this latter transaction.

These facts are stated in the briefs, and appear to some extent in the stipulation which was admitted in evidence.

The state of the case settled by the District Court judge is rather meagre and discloses:

“Plaintiff was sworn and the note was offered and accepted in evidence without any objection on the part of defendant. The stipulation was offered and accepted in evidence without any objection on the part of the defendant.

“Plaintiff testified that the note so offered was the note referred to in the stipulation, and that he was the owner of said note and that the same had not been paid. Plaintiff thereupon rested.

“Defendant likewise rested, without offering any testimony or evidence whatsoever.”

Defendant contended at the trial, and in this court, that he should have a verdict because (1) the note was without consideration; (2) there was no proof that the note was due and payable in accordance with the terms of the stipulation; and (3) that the consideration, if any, for the note was illegal, void and contrary to public policy.

The trial judge entered judgment on the first count for the amount of the note and interest.

Plaintiff relied in his state of demand both on the note and the stipulation. He introduced both the note and stipulation in evidence and testified that the note was the one referred to in stipulation. But there is not one word of testimony as to what happened to the trial of the appeal in the Common Pleas nor any evidence that the $200 became due in accordance with the terms of the stipulation. For all that appears the judgment may have been affirmed and actually collected from the Margo Corporation. The plaintiff has alleged and proved a single contract, evidenced by the note and the stipulation, and he must prove that the conditions came about which were to create the liability of the defendant. He cannot, as he now appears to attempt, rely on the note alone and say that from its fact there is a presumption of consideration and, there being no evidence on the part of the defendant to contradict this, he should have judgment.

In the situation presented, the motion for a verdict for defendant should have been granted. The judgment is reversed and a new trial granted.


text:
    RICHARD B. KIENLE, PLAINTIFF-RESPONDENT, v. MAC FULTON, INCORPORATED, ET AL., DEFENDANTS-APPELLANTS.
    Argued May 1, 1934
    Decided September 8, 1934.

      Before Justices Lloyd, Case and Donges.
    For the appellants, D. Trueman Stackhouse.

    For the respondent, no appearance.
   The opinion of the court was delivered by

Donges, J.

This appeal brings up a judgment of the District Court of the city of Camden in favor of plaintiff-respondent against the defendant, Mac Fulton, Incorporated, Valentine M. Fulton, trading as Finance Exchange Company, and Valentine M. Fulton, individually.

The action below was brought upon an alleged deceit in the sale of an automobile, it being alleged that Mac Fulton, Incorporated, sold plaintiff a 1928 Graham Paige automobile upon a representation that it was a 1930 model, and that plaintiff, relying upon such representation, purchased it and afterwards discovered the fraud. The plaintiff signed a contract and other papers, and the contract, requiring payment of the sum of $45 in installments, was assigned to the finance company. The down payment of $90 recited in the agreement was the agreed trade-in value of a 1930 Chevrolet which, plaintiff turned over to the seller. Plaintiff made no further payments. The judge of the District Court gave judgment for plaintiff against all defendants in the sum of $78 damages and $8.30 costs, and found a verdict of no cause of action on a counter-claim filed by the Finance Company to recover from the plaintiff the amount of its claim upon the assigned contract. ’

The trial court found the 1930 Graham Paige to be worth $115, and that the plaintiff was entitled to recover the difference between the 1930 and the 1928 cars. The one being worth $115 and the 1928 car $37.

The appellants raise a number of grounds of appeal. The first four have to do with the question of whether the plaintiff was actually deceived into believing that he was receiving a 1930 car when in fact he was receiving a 1928. While the proofs are not convincing, perhaps it may be said that there is some testimony from which the trial judge may be justified in his finding.

The fifth, sixth and seventh grounds of appeal are based upon the adoption of an erroneous rule of damage and the use by a witness for the plaintiff, called as an expert, of a .so-called Bed Book. The witness Boas was qualified as an expert but he did not testify of his own knowledge. Over objection he testified that certain values were given in the Bed Book, which was not shown to be proper as a scientific work upon the question of automobile values. From this Bed Book he testified that the 1928 car was valued at $37 and the 1930 car at $115, and thereby the court reached the amount of the damages as the difference between these two figures. There was testimony on behalf of appellants that the value of the car sold was $150, and we think that this was the only competent testimony before the court, our opinion being that the Bed Book was not competent for use in the manner permitted in this case. Upon this ground alone the judgment must be reversed. The rule is that what a person is entitled to recover is measured by the difference between the price paid and the actual value of the property received. The competent testimony is that the price paid was $135 and the value of the automobile was $150.

The next ground of appeal involves the dismissal of the counter-claim of the Finance Company. Since the case is to go back for retrial it should be reversed in loto so that the counter-claim may also be considered.

The next ground of appeal is that the verdict ought not have gone against any defendant, in any event, except the seller of the automobile, and in this we think the trial court erred, because the testimony was that any misrepresentations made were made by Toone who was the agent of Mac Fulton, Incorporated, and not the agent of the other appellants. There is no proof that anyone except the seller was represented in the negotiations, so that the judgment against the other appellants is without support in the proofs.

The judgment is reversed and a new trial granted.


text:
    DAVIS BERNSTEIN, TRADING AS THE NEW JERSEY LIQUIDATING COMPANY, PLAINTIFF-RESPONDENT, v. EMANUEL GREEN, DEFENDANT-APPELLANT.
    Submitted May 11, 1934
    Decided September 8, 1934.
    Before Justices Lloyd, Case and Donges.
    For the appellant, H. Eermit Green.

    For the respondent, M. Metz Gohn.

   The opinion of the court was delivered by

Donges, J.

This is an appeal from a judgment of the First District Court of the city of Paterson in favor of the plaintiff-respondent, assignee of the trustee in bankruptcy of one Ealph Atkins, against the defendant-appellant. The suit was on a book account, purchased by respondent along with the other assets of the bankrupt, a copy of which was annexed to the state of demand. The state of demand alleges that the account was the property of the bankrupt; that it had been purchased by plaintiff; and that it had not been paid. The account shows certain debits in varying amounts from January 1st, 1926, to January 13th, 1927, eleven items in all, totalling $144.85. Credits of $19.45 on April 11th, 1929, and $25 on December 19th, 1929, are shown, leaving a balance due of $100.40. There is nothing to show what these items represent, whether the debits be for materials and labor furnished, and whether the credits be cash payments or returned material. Except for the credit, the entire account was beyond the statute of limitations.

The testimony- appears to be stenograph!cally reported in part and in part settled by the court. It appears that the appellant made a motion at the beginning of the trial for a nonsuit on the ground of the insufficiency of the book account. Plaintiff was sworn and testified that he purchased Atkins’ assets and found the account among them.

One Leah Kassner was sworn but it is admitted her testimony is immaterial. Plaintiff then rested and defendant again moved for a nonsuit on the ground that the book account had not been proved. This was denied and an adjournment was taken. The account consists merely of dates, and figures under headings marked “Debits” and “Credits.” The account was carried under the caption “E. Green, 454 East 41st Street, Paterson, N. J.”

At the adjourned hearing the defendant’s attorney stipulated that if the bookkeeper of Atkins were produced she “would testify that this was the book account as she kept, and that the account would appear and leave a balance of $100.40.” Motion for nonsuit was then made oil the ground of the insufficiency of the book account, and denied.

Defendant then testified that he had purchased an automobile from Atkins; that Atkins had made certain warranties with respect to the automobile; that the car had not been what it was guaranteed to be; that he had never purchased any materials or labor from Atkins; that he had never been asked for any money by Atkins with respect to the book account; that he had never paid any money on the account.

Motion for a directed verdict was then made on the ground stated for the nonsuit and on the.further ground that, since the payments in 1929 were not made by defendant, the statute of limitations was a bar to the action. Decision was reserved and subsequently judgment for plaintiff was entered.

Under Weill v. Jacoby, 72 N. J, L. 274; 61 Atl. Rep. 389, the book account was insufficient. It was there said by the Court of Errors and Appeals: “We think that it should at least appear upon the copy of the account or by the state of demand that it is an account in favor of the plaintiff and against the defendant, and that the nature of the claim also should be shown, so that it may appear to be the proper subject of a book account1.'” In the instant case the nature of the account is not stated in the copy in evidence; nor does the state of demand set out the nature of the account; and there is nothing in the evidence which sheds light upon this subject. How the alleged debits arose does not appear either in the exhibit or in the proofs. All the proofs show is that this account was found among the papers of Atkins and plaintiff wants it paid, together with a denial by defendant that he ever purchased anything from the bankrupt which could be the subject of a book account, and further denial that he had ever made any payments which would stop the running of the statute of limitations.

On the case presented, it was error to deny the motions for a nonsuit and for a directed verdict. The judgment is reversed and a new trial granted.


author: Goldbergee, J.

text:
    Perth Amboy District Court.
    CONTINENTAL ADJUSTMENT CORPORATION, PLAINTIFF, v. EDYTHE M. KLAUSE, DEFENDANT.
    Decided August 31, 1934.
    Por the plaintiff, Sol Kantor.

    Por the defendant, Lewis S. Jacobson.

   Goldbergee, J.

The above cause has been submitted to me on an agreed state of facts. The facts as submitted are substantially as follows: The defendant, a school teacher of the city of Perth Amboy, made application for a loan of $300 of the National Lenders Corporation, a money lending corporation having its office in the city of South Bend, Indiana, and executed a note as follows:

“May 19th, 1931.
Por value received the undersigned promises to pay to the order of National Lenders Corporation, at the office of the payee, the sum of Three Hundred and 00/100 Dollars in installments as follows, to wit: $15.00 together with interest on the principal sum of this note at the rate of 3%% per month on the 37th day of June, 1931, and the same sum, together with interest at the same rate on the unpaid balance of said principal sum on the 37th day of each consecutive mouth thereafter, until the full amount of this note, with interest at the said rate on all unpaid balances thereof is paid, all without any relief whatever from valuation or appraisement laws.
Failure to pay any installment of principal or interest, when due, shall cause the entire amount to become immediately due and payable at the, option of the holder hereof.
The drawers and endorsers severally waive, presentment for payment, notice of protest and notice of non-payment of this note.
The maker may at her option repay all or any part of the unpaid balance or principal and accrued interest on any interest paying date.
Edythe M. KlauseU

Upon receipt of this promissory note, the loan was granted and the defendant was paid the said sum. Thereafter the defendant defaulted in monthly payments of principal and interest, and in the interim the plaintiff acquired the promissory note by assignment or by transfer, and therefore appears as plaintiff in this suit to recover principal and interest due upon said note. Neither the payee nor the plaintiff are licensed to do business in this state, and neither maintain an office or transact any business herein. The defendant at the time of signing of said note was a resident of this state and continued to be such up to the time of the institution of this suit.

It is contended by the defendant that payment of the note cannot be enforced because to do so would be against public policy of this state in view of Pamph. L. 1914, ch. 49, p. 75.

Plaintiff contends that by reason of the note being made payable in South Bend, Indiana, it became a contractual obligation to be governed by the laws of Indiana, notwithstanding the fact that the defendant resides in New Jersey and executed the note in this state.

It is to be noted that the note in question provides for a higher rate of interest than that provided for by the Small Loan act of this state as it existed at the time of the making thereof; and said note comes within the purview of said act of 1914 as amended, the payee being incorporated, authorized and licensed under the laws of the State of Indiana.

The act in question, inter alia, provides that:

“When an application for a loan * * * is made by any person in this state and the moneys advanced * * * or tile note purchased by any person without this state, the transaction shall be deemed a loan made wiihin this state, and such loan * * * shall be subject to the provisions of lilis act.”

Ilegardless of whether or not the parties agree that the transaction shall be an Indiana contract, the same cannot be enforced within this jurisdiction, when, as in this ease, it would be contrary to public policy of this state to permit a foreign corporation to do what domestic corporations are not permitted to do.

A party to an illegal agreement cannot at the time of the execution thereof or thereafter, waive his right to set up a defense of illegality nor is he estopped to set up the claim that the agreement is void as against public policy. 13 C. J. 506, §§ 451, 453; 25 L. R. A. (N. S.) 275, 297, notes.

The rule that a contract valid where made and where it is to be performed is valid elsewhere is subject to exceptions. Wo state is bound to recognize and enforce a contract which is injurious to its own interest or to the interest of its citizens. This exception results from the consideration that the authority of the acts and contracts done in other states, as well as the laws by which they are regulated, are not, propio vigore of any efficacy beyond the territories of that state; whatever effect is attributed to them elsewhere is from comity and not from strict right. And every independent community will and ought to judge for itself how far that comity ought to extend. The reasonable limitation is that it shall not suffer prejudice by its comity.

Contracts therefore which are in invasion of the laws of a state or the rights or duties of its citizens are deemed nullities in every state affected, although they may be valid by the laws of the place where they are made. Story Confl. L. 244; Varnum v. Camp, 13 N. J. L. 326; Moore v. Bonnell, 31 N. J. L. 90; Greenwood v. Curtiss, 6 Mass. 378; Finney v. Guy, 189 U. S. 335; Broderick v. Abrams, 112 N. J. L. 309; 170 Atl. Rep. 214.

. It is very evident from the act under consideration that it was the policy of this state at the time of making said note to prevent outside money lending corporations to loan money to its citizens at rates of interest at which its own corporations were forbidden to do.

Judgment will go for the defendant.


author: John C. Wegner, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANTHONY ASBELL, PETITIONER, v. CAMPBELL MORRELL & COMPANY, RESPONDENT.
    Decided September 4, 1934.
    For the petitioner, Joseph Teich.

    For the respondent, George E. Meredith.

   An application was made on the above entitled matter praying for an order to compel the respondent to pay the interest on the judgment previously obtained in the above entitled case and also praying for an order to make payment for the balance of the judgment due. *$*$*$«:

Having considered the argument of counsel, I find that this bureau has no jurisdiction to compel the payment of interest on the judgment in the Court of Common Pleas, and as to the request for interest on delaj^ed payments which was argued by consent but not asked for in the petition, I find that the assessment of interest on delayed payments is discretionary with this bureau and having in mind the fact that there was a tona fide dispute as to the cause of the petitioner’s disability, and further, that there was no deliberate or captious withholding of funds prior to the final order of this bureau, it is my opinion that the respondent should not be penalized further by assessing interest on the judgment obtained on March 24th, 1932.

The only other question involved is the payment of the balance alleged to be due on the judgment. This matter was disposed of at the time of the oral argument at which time the respondent tendered a check covering the balance in full which check was accepted in open court.

Accordingly, it is on this 4th day of September, 1934, ordered that the petition be and the same is hereby dismissed with costs to be assessed against the petitioner.

John C. Wegner, Referee.


text:
    VASSAR REALTY CORPORATION, PLAINTIFF-RESPONDENT, v. GEORGE A. HILLMAN, DEFENDANT-APPELLANT.
    Submitted May 11, 1934
    Decided September 8, 1934.
    Before Justices Lloyd, Case and Donges.
    Por the appellant, Samuel Bosenfeld.

    Por the respondent, Harry Federbush.

   The opinion of the court was delivered by

Donges, J.

This is an appeal from a judgment of the Passaic District Court in a suit for rent under an alleged lease of an apartment. The plaintiff’s contention was that it and defendant had entered into a parol lease for the apartment for a period from January 1st, 1933, to September 30th, 1933, at a monthly rental of $10. The suit was to recover for the months of Ma}g June, July, August and September, 1933. Plaintiff’s version, testified to by its superintendent and his wife, was that the defendant agreed to lease for the nine month period; that he was to sign a written lease; that he refused to sign the lease when it was presented to him after he entered the premises; that he removed from the premises in April, 1933. The trial judge gave judgment for the plaintiff.

The first point urged for reversal is that it was error not to grant the motion for a nonsuit. The argument seems to be that since a mitten lease was to be signed, the parties had not really come to any agreement which can be enforced and the tenancy was from month to month. Wharton v. Stoutenburgh, 35 N. J. Eq. 273, is relied on to support appellant’s contention that where parties contemplate signing a formal agreement the failure to do so is evidence that they did not intend to bind themselves until the agreement was signed. This case does not help appellant because, admittedly, appellant went into possession under a parol agreement. If for nine months, it was not required to be in writing. The sole question presented at the trial was whether or not defendant agreed to lease for nine months. Plaintiff said he did and defendant denied it and asserted a letting from month to month. A narrow question of fact was presented, with testimony on both sides, and the trial judge resolved this question in favor of plaintiff. There is ample evidence to support this finding and it will not be disturbed on appeal.

The next point is that it was error to exclude a question asked defendant’s wife on redirect examination, designed, it is said, to correct a mistake in her direct examination. The point is entirely without merit. It arose thus:

“Q. On March 1st, 1933, were you present in the house when Mr. Mac spoke to your husband? A. Yes, sir; Mr. Mac brought me the papers, and he brought them to me.
"Q. Were you present on March 1st, 1933, when your husband had a conversation with Mr. Bornstein? A. Yes, I was.
“Mr. Betz. I wish to call the court’s attention to the discrepancy there.
“The Court: Yes, I am following.”

Obviously, the mistake was that in the first question counsel said Mr. Mac when he meant Mr. Bornstein, and opposing counsel called the court’s attention to the slip. Later, on redirect examination, the witness was asked:

“Q. What did you mean before when I asked you about a conversation between your husband and Mr. Mac on March 1st, 1933; what did you mean by that?”

Upon objection being made and sustained, appellant’s counsel said:

“Exception. The statement was a misstatement of fact on my part; not on the part of the witness.”

It thus appears that the question’s exclusion was entirely harmless, since the true situation was apparent.

The third point urged by appellant is that it was error to refuse to direct a verdict for defendant. What was said in dealing with the first point covers this point.

The judgment is affirmed, with costs.


author: Baeison, J.

text:
    Hudson Co. Juvenile and Domestic Relations Court.
    ELLEN ZITO, COMPLAINANT, v. ANTHONY ZITO, DEFENDANT.
    Decided September 21, 1934.
    For the complainant, Alexander Simpson.

    For the defendant, Allan Benny.

   Baeison, J.

This action is brought under an act entitled “An act to establish Juvenile and Domestic Relations Courts, defining their jurisdiction, powers and duties and regulating procedure therein” (Revision of 1929; Pamph. L. 1929, ch. 157, p. 274, &c.), and the supplements thereto and amendments thereof.

Ellen Zito, who was married to Anthony Zito on August 23d, 1928, complains that Anthony Zito has failed to provide for her ever since May 1st, 1934. Anthony Zito admits his failure to provide for Ellen Zito since May 1st, 1934, and sets up as a defense a decree of divorce obtained in the Second Judicial District Court of the State of Nevada, in and for the county of Washoe, on May 1st, 1934, which decree was obtained on the ground of extreme cruelty. Ellen Zito attacks the validity of the decree on the ground that it was obtained by fraud.

There is, of course, a great deal of testimony as to their married life and considerable testimony as to the facts surrounding the obtaining of the divorce from which a court of competent jurisdiction may find that the divorce was obtained by fraud. I will not here deal with these questions, but, rather, with the question whether or not the Court of Domestic Relations is the proper forum to hear and determine any case wherein the validity of a foreign decree of divorce is involved.

Dnder the Juvenile and Domestic Relations Court act entitled “An act to establish Juvenile and Domestic Relations Courts, defining their jurisdiction, powers and duties and regulating procedure therein” (Revision of 1929; Pamph. L. 1929, ch. 157, p. 274, &c.), the court has jurisdiction to hear and determine disputes involving the domestic relation or the welfare of children, the jurisdiction over which is now or may hereafter be vested by law in any court of this state except the Court of Chancery or Orphans Court. It shall have jurisdiction to hear and determine complaints for violation of the following acts: “An act concerning disorderly persons” (Revision of 1898), “An act for the settlement and relief of the poor” (Revision of 1924), “An act concerning the welfare of children” (approved April 8th, 1915), “An act for the maintenance of bastards” (Revision of 1898), “An act to promote home life for dependent children,” and the acts amendatory of and supplemental to the above-entitled acts together with any future acts, revisions, re-enactment or new acts covering similar complaints or offenses, where the gravamen of the complaint under such acts is the failure or neglect of one member of the family to satisfy or discharge his legal obligations to another of a family, and also jurisdiction to hear and determine complaints against any person who shall abuse, neglect, cruelly treat or abandon a child or children or who shall contribute to the delinquency of any child. It shall have jurisdiction to hear and determine in summary manner, disputes involving the domestic relation, where the gravamen of the complaint is the failure to provide support or adequate support.

The Juvenile and Domestic Relations Court was created by the legislature and its power and jurisdiction is limited and confined to such subject-matter as is set forth in the statute.

Nowhere in the statute or in any of the acts therein referred to, can I find any section which confers upon the Juvenile and Domestic Relations Court the right to hear and determine any issue wherein the legality of a divorce obtained in any foreign state is involved.

The Juvenile and Domestic Relations Court has, by virtue of the statute, the right to hear and determine any issue involving domestic relations where the gravamen of the complaint is the failure to provide support or adequate support for the wife. It is true that as a prerequisite to an award of support, in a case where the marital status is in issue, the court must first determine whether or not the relationship of husband and wife exists. In this ease, however, I am called upon to determine the validity or legality of a foreign decree of divorce in deciding whether or not the relationship of husband and wife exists, and I do not believe that the legislature ever intended the Juvenile and Domestic Relations Court to have the right to determine the validity or legality of any foreign decree of divorce.

I will deny the relief sought by the complainant for the reasons herein set forth.


text:
    ELIZABETH MATYAS, PLAINTIFF-RESPONDENT, v. LASIDLOW YURKO, DEFENDANT-APPELLANT.
    Submitted May 11, 1934
    Decided September 8, 1934.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Harry A. Shubach.

    For the respondent, Samuel 0. Meyer son.

   The opinion of the court was delivered by

Donges, J.

This is an appeal from a judgment of the District Court of the Second Judicial District of the county of Morris, and the first question to be decided is whether the appeal may be considered upon the merits or must be dismissed. Bespondent insists that the appeal should be dismissed because it was not perfected within the time fixed by statute. Appellant requests “the court to exercise its discretion to permit the appeal to proceed upon the merits of the ease.”

The case was tried January 24th, 1934. The testimony was taken down stenographically. Pamph. L. 1932, ch. 155, provides that when testimony in a District Court case is taken by a stenographer and is to be used on appeal “the transcript of said proceedings and said testimony made by said stenographer, shall be certified by said judge as the state of the case to be used on the hearing * * * within thirty days after the trial thereof.” In the instant case the testimony was not certified until February 27th, 1934, the delay having been occasioned by illness of appellant’s attorney.

Prior to the passage of the 1932 act, the time within which certification was required to be made was fifteen days, and it has been held, under the earlier act, that when this is not done the appeal will be dismissed. Ervin v. Wohlfert, 76 N. J. L. 430; 70 Atl. Rep. 153. In Galligan v. Gonzales, the Court of Errors and Appeals affirmed the Supreme Court in dismissing an appeal for this reason, 97 N. J. L. 327; 116 Atl. Rep. 486. In that case there was a motion to dismiss in the Supreme Court. A supplemental opinion was written (97 N. J. L. 327), clearing up some confusion which resulted from the Supreme Court opinion. It was said “the transcript must be certified by the judge within the fifteen days.” These cases hold that the District Court judge has no authority to extend the time, and I can find no authority for this court’s doing so. Indeed, authority is to the contrary. Berstecher v. Caruso, 89 N. J. L. 426; 99 Atl. Rep. 410. What was said in that case seems to apply to the instant case: “The case is apparently one of some hardship, on account of the application of statutes which we have no power to relax.”

Admittedly the transcript was not certified within the time fixed by the act of 1932, and the appeal is dismissed, without costs.


author: Pee Cubiam.

text:
    JAMES D. COLYER, RECEIVER OF THE BELVIDERE NATIONAL BANK, RELATOR, v. FRANK PIERSON, ALBERT L. SMITH AND THOMAS B. LANTZ, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF WHITE, IN THE COUNTY OF WARREN AND STATE OF NEW JERSEY, DEFENDANTS.
    Submitted May 11, 1934
    Decided September 22, 1934.
    Before Justices Tkencitakd, IIeiieb and Peeskie.
    Por the relator, Charles B. Brady.

    Por the defendants, J. M. Roseberry & Son.

   Pee Cubiam.

The relator holds a rule requiring the township committee of the township of White in the county of Warren to show-cause why a peremptory or alternative writ of mandamus should not issue commanding the township committee to pay over unto James D. Colyer, receiver of The Belvidere National Bank, the balance of $10,423.51 with interest on $18,587.93 from December 31st, 1930, to October 10th, 1931, and with interest on $10,423.51 from October 10th, 1931, to date of payment, or such percentage of each of the appropriations of 1931 of $3,000, of 1932 of $1,087.93 and of 1933 of $7,000 as has been collected by the collector of taxes of the township.

Depositions were taken pursuant to the rule.

Thereby the relator claims to have established the following matters of fact: On October 10th, 1931, The Belvidere National Bank suspended operations and was placed in the hands of a receiver by the comptroller of the currency of the United States. On that day the township owed the bank two tax revenue notes and three temporary improvement notes. On the tax revenue notes it owed all of the principal of each, and on the temporary improvement notes it owed on each a balance of principal. In 1931 the township included in its budget appropriations $3,000 to pay $3,000 of the temporary improvement notes which totaled $4,087.93. In 1932 the township included in its budget appropriations $1,087.93 to pay the balance of the $4,087.93. In 1933 the township appropriated $7,000 to pay tax revenue note of that amount dated December 28th, 1929. No part of these appropriations, were actually paid to the receiver of the bank. On October 10th, 1931, township moneys were on deposit in the names of its various officers to the amount of $8,164.42 in the bank, which moneys have been retained by the bank to be applied against the foregoing indebtedness.

On the other hand, the township answers that the issuance of the notes in question, in the form and substance in which they were issued, was not within the corporate powers of the township, was not authorized by the statutes, and that the notes were illegally issued and were not thereafter ratified. The township further answers that the $8,164.42 on deposit with the bank, and which the bank seeks to have applied to the township’s indebtedness, was appropriated to the various purposes of the township, and without the consent of the township, could not be applied to the notes in question, and relies upon the ease of Township Committee of Piscataway Township v. First National Bank, 111 N. J. L. 412; 168 Atl. Rep. 757.

From our examination of the record and briefs we do not think that the relator has made out such a case on the present record as entitles him to a peremptory writ of mandamus. A peremptory writ should be granted “only when the legal right is clear and the facts are not in dispute” (Hugg v. Camden, 39 N. J. L. 620), and the present case does not comply with that test. But we do think that on this rule to show cause, sufficient facts appear to justify the issuance of an alternative writ, as a matter of practice, so as to enable the relator, among other things, to make out a case to be reviewed by writ of error if necessary. An alternative writ corresponds in many particulars to a declaration at common law, and in a proper case may be demurred to, or the return may be demurred or pleaded to, and an issue made by which the rights of the parties may be determined, and the decision of this court reviewed, if desired, by writ of error; while the award of a peremptory writ, or the refusal of this court to act, is not so reviewable. Schnitzler v. New York Transportation Co., 76 N. J. L. 171; 68 Atl. Rep. 905.

An alternative writ will therefore be awarded.


author: Per Curiam.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ARTHUR O’TOOLE, PLAINTIFF IN ERROR.
    Submitted January Term, 1934
    Decided September 27, 1934.
    Before Beogar, Chief Justice, and Justices Teerchaed and Hehee.
    Bor the defendant in error, John Drewen (Emil W. A. Schumann, of counsel).

      Por the plaintiff in error, George E. Gutley.

   Per Curiam.

Plaintiff in error was convicted upon an indictment charging embezzlement. The appeal comes into this court on a strict writ of error. The record before us is meager and unsatisfactory. It contains writ of error, return thereto, and some docket entries. None of the testimony is included in the record.

It also appears that a “motion for arrest of judgment of sentence” was made and denied. No reason in support of such motion appears in the record although from a reading of the brief of plaintiff in error the motion for arrest of judgment and the denial thereof appear to be the crux of the appeal. There is no exception taken to the court’s ruling. Although it seems that the motion was denied after the court heard evidence on it and the argument of counsel, no testimony on this motion is presented to us on the record submitted.

The sole ground urged for reversing the conviction of plaintiff in error is that he never entered a plea to the indictment.

A motion in arrest of judgment should point out the specific errors upon which the motion is based. 23 Cyc. 834.

Whether or not this procedure was followed we have no way of knowing because nothing in the record apprises us of what actually happened. There is no record of the main case which was tried on October 16th, 1933, or the motion for arrest of judgment, which matter was heard on November 2d, 1933, except a bare statement of the latter. We have no way of knowing upon what ground the motion was supported or upon what ground it was denied and, consequently, cannot determine whether or not the trial court committed error in denying the motion.

Now an assignment of error in order to be available must be supported by exceptions which should appear in the record under the certificate and seal of the trial court. Donnelly v. State, 26 N. J. L. 463; State v. Morgan, 85 Id. 387; 91 Atl. Rep. 988; State v. Hart, 90 N. J. L. 261; 101 Atl. Rep. 278; State v. Fearce, 113 N. J. L. 155; 172 Atl. Rep. 575. Failing this, there is nothing lor this court to review.

Fo error is properly set up or exhibited and the conviction is therefore affirmed.


text:
    LAUREL BREKER, PLAINTIFF, v. LAKEWOOD WATER COMPANY, ETC., DEFENDANT.
    Submitted May 11, 1934
    Decided September 28, 1934.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.
    For the plaintiff, Morion 0. Steinberg.

    For the defendant, Henry D. Brinley (Walter L. McDermott).

   Per Curiam.

Plaintiff sued to recover damages because of the theft of some of her property by persons unknown. It appears that the defendant, through its servants, entered the plaintiff’s premises to remove a water meter. They had authority so to do whenever for any reason the service should be terminated. The house was vacant, the weather was excessively cold, and there was danger of freezing. It seems unnecessary to consider how the entry was made, or whether the subsequent closing of the house was effective. The case went to the jury ■on the theory that the closing of the house after the removal of the meter had been done in a negligent manner, and that, therefore, the defendant company was liable for the unlawful burglaries committed by parties unknown.

The proofs are satisfying that the closing was as effective as it had previously been. The rule of law is: “Defendant’s negligence is too remote to constitute the proximate cause where an independent illegal act of a third person, which could not reasonably have been foreseen, and without which .such injury would not have been sustained, intervenes.” 45 Corp. Jur. 936. It could not be foreseen that the burglaries would occur by reason of anything the defendant was shown by competent proof to have done or failed to do.

It is unnecessary to consider the other points argued. Suffice it to say that the grounds of appeal are insufficient to present any question for our determination. Loeb v. Cook, 110 N. J. L. 417; 166 Atl. Rep. 134. The learned trial judge should have granted the nonsuit or directed a verdict for the •defendant.

The judgment is reversed.


author: Pee Ctjeiam.

text:
    SOLLY CHURCH, PLAINTIFF-APPELLEE, v. CONSOLIDATED INDEMNITY AND INSURANCE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Submitted May 11, 1934
    Decided September 28, 1934.
    Before Beogan, Chief Justice, and Justices Parkee and Bodine.

      For the defendant-appellant, Pomerehne, Laible <& Kauiz (Henry Pomerehne).

    For the plaintiff-appellee, Ely F Ely.

   Pee Ctjeiam.

The defendant appeals from an order striking its answer. The plaintiff recovered damages in an action brought against Samuel F. Cooke for whom defendant had written an accident insurance policy. The defendant disclaimed liability and judgment was entered in default of pleadings.

The present action was brought to recover damages by reason of the judgment in the prior action remaining unsatisfied.

The sole question is the extent of the coverage. It appears that Church was employed at a service station. He was asked by Cooke, if, on his day off, he did not want to make some repairs to his automobile. Church agreed and went to Cooke’s garage in the rear of his home. While pumping air into the left rear tire, the tire rim suddenly blew off and caused the injuries for which complaint was made in the prior action. Cooke agreed to pay for the service.

The policy provides that there should be no coverage for bodily injuries suffered by any employe of the assured while engaged in the repair of Cooke’s motor car. That Church was such employe seems clear. He was employed only, it is true, for a specific work. That circumstance made him no less an employe. The answer struck presented a legal defense and was neither sham or frivolous.

The judgment is reversed.


author: Bodine, J.

text:
    EFFICIENT COLLECTION AND ADJUSTMENT COMPANY, A CORPORATION, PLAINTIFF-APPELLANT, v. RICHARD A. McDONOUGH, TRADING AS R. A. McDONOUGH & COMPANY, DEFENDANT-APPELLEE.
    Submitted May 11, 1934
    Decided September 28, 1934.
    Before Bbogan, Chief Justice, and Justices Pabiceb and Bodine.
    For the plaintiff-appellant, Samuel B. Feld (Thomas J. Kennedy).

    For the defendant-apppellee, Harry Levin.

   Bodine, J.

The plaintiff appeals from an order of possession in favor of the defendant. The plaintiff’s claim is predicated upon a chattel mortgage bearing date November 23d, 1931, recorded November 24th, 1931. The defendant, a garageman, claimed a lien upon the trucks in question by virtue of work done and materials furnished on October 23d, November 5th and November 14th, 1930, and also on August 24th, 1931, all prior to the date of and the recording of the chattel mortgage under which the plaintiff sought possession.

The learned trial judge held the chattel mortgage invalid for several reasons. It seems to us that this determination was immaterial. The garageman’s undisputed lien was in no way affected by a subsequent chattel mortgage. Pamph. L. 1925, p. 96.

The judgment is affirmed.


author: Botone, J.

text:
    ELSIE CHRISTINE, BY HER NEXT FRIEND, DAVID CHRISTINE, AND DAVID CHRISTINE, INDIVIDUALLY, AND HELEN CHRISTINE, PLAINTIFFS-APPELLEES, v. RICHARD VAIL, DEFENDANT-APPELLANT.
    Submitted May 11, 1934
    Decided September 24, 1934.
    Before Bbogan, Chief Justice, and Justices Parker and Botone.
    Por the defendant-appellant, Joseph C. Paul.

    Por the plaintiifs-appellees, Meyer 0. Ellenstein.

   Botone, J.

The plaintiff, Elsie Christine, a young girl, entered the defendant’s store, she testified, to buy some candy and hot chocolate. She was walking to a table in the rear of the store in order to sit down while she drank the chocolate, when her dress caught afire and she was badly injured, for which she and her father were awarded damages. The fire was occasioned by the flames from a gas heater placed in the aisle between the tables. A motion to nonsuit was properly denied. Finnegan v. Goerke Co., 106 N. J. L. 59; 147 Atl. Rep. 442.

On the defendant’s case an attempt was made to show that no purchase was intended and that the injury was caused by the girl continuing to stand with her back to the stove, even though warned of the danger. A witness said she was loitering in the place to receive telephone calls.

There was no motion made for a directed verdict, but if it had been made it should have been denied. Finnegan v. Goerke Co., supra. “Where fair-minded men might honestly differ as to the conclusions to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury. And in a conflict of testimony, when the facts-found by the jury will sustain the verdict, the court will not set it aside, although in their opinion the jury might, upon the evidence, have found otherwise.” Finnegan v. Goerke, Co., 106 N. J. L. 61; 147 Atl Rep. 442.

How can it be said that it was not a matter of danger to customers to place and maintain a gas stove of the dimensions of this one in a store aisle, which should be free from obstruction, and to permit the flames to escape in such a manner that they could set fire to the clothing of a customer standing or passing by such source of danger? Eeasonable men could with entire propriety say that there was actionable negligence in this case. The issue was properly for the jury. Nor could it be said, if the jury believed the plaintiff’s testimony and that in her behalf, that she was in any respect 'negligent. The issues were, therefore, clearly for the jury and were submitted in a well balanced charge to which no exception was taken.

The judgment is affirmed, with costs.


text:
    JACOB KLEINFELD, PLAINTIFF-APPELLEE, v. MOTOR PLAN COMPANY ET AL., DEFENDANTS-APPELLANTS.
    Submitted May 11, 1934
    Decided September 28, 1934.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.

      For the defendant-appellant, Albert Comstock.

    For the plaintiff-appellee, Thomas J. Kennedy.

   Bodine, J.

The ease was tried before the court without a jury upon an agreed state of facts. Plaintiff had judgment in a replevin action for possession of an automobile and the defendant, who intervenes, appeals. The plaintiff-appellee files no brief. It appears from the agreed state of facts in the District Court that Albert and Henrietta Kaymond purchased the automobile in question in January of 1932. The Kleinfeld Furniture Company obtained a judgment in the Clifton District Court against Henrietta Raymond for $500 while she was still the owner of an undivided half interest in the automobile. Jacob Kleinfeld, by levy and sale, became the owner of her interest. Albert Kaymond had previously served notice and claim of property pursuant to section 190 of the District Court act. It is immaterial, as we see it, that the sale was made without regard to the statute. Plaintiff could only rely upon the title acquired by his purchase at the execution sale. The sole question presented is the right of one entitled to an undivided one-half interest in a motor car to possession.

Mr. Justice Carpenter said in 1849, in Chambers v. Hunt, 22 N. J. L. 552, 556: "Certainly there can be no doubt as to the principle, that one of two joint owners or tenants in common of personal property cannot maintain replevin against the other. The one has no more right to the exclusive use or possession of a chattel so held than the other. It is too obvious for argument, and the authorities are as clear as the reason is unquestionable.” See, also, Merchants’ Securities Corp. v. Lane, 106 N. J. L. 169; 147 Atl. Rep. 576.

The judgment is reversed, with costs.


text:
    HOME COAL COMPANY, INCORPORATED, PROSECUTOR, v. BOARD OF EDUCATION OF THE CITY OF BAYONNE, RESPONDENT.
    Argued October 3, 1934
    Decided October 5, 1934.
    Before Justices Lloyd, Case and Donges.
    For the prosecutor, Maurice G. Brigadier and J. Raymond Tiffany.

    For the respondent, Daniel J. Murray and Richard L. Doherty.

   Per Curiam.

This case is before us on a rule to show cause why a writ of certiorari should not be allowed to review action of the respondent in awarding a yearly contract for coal. The contract itself has not yet been made. The prosecutor was one of ten unsuccessful bidders for the contract, each of the ten bids being for the precise sums contained in prosecutor’s bid, which were approximately $9,000 higher than that of the successful bidder. It does not appear that prosecutor is a taxpayer in the city. It appears only as an unsuccessful bidder. Such status is not sufficient to enable it to prosecute a writ of certiorari. It must show that it was deprived of something, which, except for the alleged illegal act of the public body, it would have received.

As was said in Atlantic City Gas and Water Co. v. Atlantic City et al., 72 N. J. Eq. 346; 65 Atl. Rep. 1119 : “The standing of the prosecutor as an unsuccessful bidder rests upon his right to have his bid accepted.” In the situation disclosed by the proofs in this case, it does not appear that prosecutor is entitled, if all of the claims of illegality in the bid and award of the contract are sustained, to receive the contract over the other seven bidders. Critchfield v. Jersey City et al., 4 N. J. Mis. R. 299; 132 Atl. Rep. 321; Jersey Central Power, &c., Co. v. Spring Lake et al., 6 N. J. Mis. R. 253; 140 Atl. Rep. 677.

Again, the successful bidder is not a party to these proceedings. In this situation, it appears to us that a determination of the questions prosecutor seeks to raise as to the validity of the bid and award and the responsibility of the successful bidder, is impossible. Livermore v. Millville, 72 N. J. L. 221; 62 Atl. Rep. 408.

The rule to show cause is discharged.


text:
    ALFRED ARIVABENO, BY HIS NEXT FRIEND, CHARLES ARIVABENO, AND CHARLES ARIVABENO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. REUBEN NUSE, DEFENDANT-RESPONDENT.
    Argued May 1, 1934
    Decided September 28, 1934.

      Before Bkogan, Chief Justice, and Justices Pakicek and Bodine.
    For the plaintiff s-appellants, Winfield 8. Angleman.

    For the defendant-respondent, King & Vogt.

   Bodine, J.

The plaintiff appeals from a jury verdict of no cause of action. The sole ground of appeal is predicated upon an exception to the court’s charge. The plaintiff, an infant five years and ten months and twenty-two days old, was injured by the defendant’s automobile while playing with other boys in the street. None of the testimony is printed except that relating to the boy’s age.

The learned trial judge charged the jury as follows: “In considering the question as to whether there would he contributory negligence on the part of this boy, you will take into consideration his age and intelligence, for he can only be held to that degree of care which a boy of his age and intelligence would ordinarily exercise. He was slightly under six years of age, and of course a boy of that age could not be held to the same degree of care as you would hold an adult to. If you find that he failed to exercise such care as a reasonably prudent person of his age, intelligence and experience should exercise, and that by reason of his lack of such due care this accident occurred, and that his negligence contributed to the accident and injury, then plaintiffs cannot recover, irrespective of the question of whether the defendant was or was not negligent.”

The sole ground of exception was that there was no such conception in law as contributory negligence by a five-year-old infant. The record is inadequate. At all events, we can only review the charge upon the very narrow ground presented. The rule does not prevail in this state that an infant between five and six years of age may not, as a matter of law, contribute by his negligence to his injury.

Chancellor Walker, speaking for the Court of Errors and Appeals, in a case in which the infant was six and a half years of age, said: “* * * the degree of care required by .a child old enough to be capable of negligence, is such as is usually exercised by persons of similar age, judgment and experience, and in order to determine whether a child old enough to be capable of negligence, has been guilty of contributory negligence, it is necessary to take into consideration the age of the child, its experience and capacity to understand and avoid dangers to which it is exposed in the actual circumstances and situation under investigation, and, it is usually a question for the jury to determine, whether a child has been guilty of contributory negligence.” Iaconio v. D’Angelo, 104 N. J. L. 506.

Although the law presumes that a child not over six years ■of age has not contributed by his or her negligence to the happening of the accident, the presumption is not conclusive and may be rebutted by proof to the contrary. The presence of proof would make the case one for the jury. Altieri v. Public Service Railway Co., 101 N. J. L. 241, 244; 128 Atl. Rep. 547. Since it is stated in the respondent’s brief that there was proof to rebut the presumption we cannot assume that there was none. As before indicated, it does not appear from the record that a motion was made to control the jury •on the question of contributory negligence. Since the appellant has not brought up more than the court’s charge to the jury, we can only determine its correctness in the particular challenged. If the presumption was not rebutted, a motion for a binding instruction should have been made. Since no such motion was made we can only infer that the case was ■one for the jury.

The learned trial judge substantially charged the law as .stated by Chancellor Walker in Rinaldi v. Levgar Structural Co., 97 N. J. L. 162, 164; 117 Atl. Rep. 42: “* * * the •degree of care required of a child old enough to be capable ■of negligence in such as is usually exercised by persons of similar age, judgment and experience, and that in order to determine whether a child old enough to be capable of negligence has been guilty of contributory negligence, it is necessary to take into consideration the age of the child and its experience and capacity to understand and avoid dangers to which it is exposed in the actual circumstances and situation under investigation, and that it is usually a question for the jury to determine whether a child has been guilty of contributory negligence.” In that case the child was six and a half years old.

As Mr. Justice Trenchard, for the Court of Errors and Appeals, in David v. West Jersey and Seashore Railroad Co., 84 N. J. L. 685; 87 Atl. Rep. 440, pointed out there is a time when an infant cannot exercise the care and judgment necessary to avoid and avert danger. During the transition period between such period and adult life there is a period when the infant could, by the exercise of care and judgment, avoid and avert the danger from which he suffered. This period presents a jury question. “And so in order to determine whether a child in such transition period has been guilty of contributory negligence, it is necessary to take into consideration the age of the child, and its experience and capacity to understand and avoid the danger to which it is exposed in the actual circumstances and situation under investigation; and it is usually a question for the jury to determine whether the child has been guilty of contributory negligence.”

The Supreme Court, in Verdon v. Crescent Automobile Agency, 80 N. J. L. 199; 76 Atl. Rep. 346, held that the question of whether a boy of seven was capable of contributory negligence was for the jury under proper instruction.

It was suggested in Baker v. Public Service Railway Co., 79 N. J. L. 249; 75 Atl. Rep. 441, that there was a presumption that a child under seven was not guilty of contributory negligence. The appellant cannot, however, take comfort in that case because but for all that appears, the presumption was overcome in the present case and if it was not, as has been noted, the question of the lack of proof is not before us either of record or by exception. In Ritscher v. Orange and Passaic Valley Railway Co., 79 N. J. L. 462; 75 Atl. Rep. 209, it was held that the question of the contributory negligence of a boy six years and ten months old was for the jury.

We take it that the language in Schneider v. Winkler, 74 N. J. L. 71; 70 Atl. Rep. 731, that a child under seven years of age could not be charged with contributory negligence has been overruled, if it ever was law, but we do not think that it ever was the law of this state. In Smith v. North Jersey Street Railway Co., 73 N. J. L. 295; 67 Atl. Rep. 753, the question of the contributory negligence of a girl eight and a half years old was for the jury under proper instruction. So also the question of the contributory negligence of a boy between four and five years of age was held to be for the jury in Markey v. Consolidated Traction Co., 65 N. J. L. 82; 46 Atl. Rep. 573.

“The duty of observation required from children may differ in extent and degree from that required from an adult. Judgment which a jury might find lacking in prudence if formed by a person of mature years might perhaps be found not to be lacking in prudence if formed by a child, but the child is not excused from some duty of observation.” Brady v. Consolidated Traction Co., 64 N. J. L. 373, 375; 45 Atl. Rep. 805.

A backward boy of nine is not excepted from the exercise of care and prudence. North Hudson County Railway Co. v. Flanagan, 57 N. J. L. 696; 32 Atl. Rep. 216.

The judgment under review will be affirmed, with costs.


text:
    BENJAMIN D. MOCKABEE AND CLARA L. MOCKABEE, PLAINTIFFS-APPELLEES, v. JOHN R. ENGLISH, DEFENDANT-APPELLANT.
    Argued May term, 1934
    Decided September 28, 1934.

      Before Brogan, Chief Justice, and Justices Parker and Bodine.
    For the defendant-appellant, J. Howard Conover.

    For the plaintiffs-appellees, Stein & Stern.

   Per Curiam.

This case was tried in the District Court without a jury. The action was on contract to recover $500 rent claimed due under the terms of a written lease for the months of May to September, 1932, inclusive. The plaintiffs waived any excess over $500.

It was stipulated at the trial that the defendant on March 30th, 1932, paid to plaintiffs the sum of $212, the April, 1932, rent, for an apartment and garage, No. 102 Melmore Apartments, East Orange, and served on the plaintiffs a notice of the termination of said lease. The notice assigned the following reasons for the action taken: (1) A tenant or occupants on the second floor of said Melmore Apartments-operated a radio and a vacuum cleaner and walked in such a loud, noisy and disorderly manner as to destroy the peace and quiet of those occupying his apartment; (2) a tenant, or occupants on the second of said apartments shouted to each other in such a loud and noisy manner in the early hours of the morning as to destroy the peace and quiet of the occupants of his apartment and in such a manner as to-awaken the occupants of his said apartment; (3) an infant, occupant of an apartment in the basement of said apartments, cried and yelled so loudly and noisily, between the hours of ten o’clock in the evening to four o’clock in the morning, as to destroy the peace and quiet of the occupants of his apartment and in such a manner as to awaken them from their sleep; (4) a tenant, or occupants of an apartment on the third floor of said apartments made such loud noises as to-destroy the peace and quiet of the occupants of his apartment; (5) a tenant, or occupants of said apartments have made so much noise and given such loud' and piercing shrieks and shouts and in other ways acted in such disorderly manner in leaving the apartments in the early hours of the morning after midnight and early morning parties therein, as to destroy the peace and quiet of the occupants of his apartment, to awaken them from their sleep, and on some occasions to frighten them so that they, or one of them, leaped from their bed and injured themselves.

It appeared that the defendant’s wife was in poor health, lie offered proof to establish the grounds of his complaint. The plaintiffs, however, offered proof in rebuttal and the facts were for the trial judge, who found against the defendant.

The lease provides: “This lease is subject to the express condition nevertheless that if the party of the second part shall deem the said apartment objectionable because of the management, operation or condition of the said Melmore Apartments, or of any part thereof, or because of any conduct of any other tenant or tenants, or occupant or occupants of said Melmore ¿Apartments, and shall give at least twenty days’ previous notice of his intention to terminate this lease, said notice to expire at the expiration of a calendar month and if the said party of the second part shall then have paid the proportionate part of the annual rent due up to the expiration of the said calendar month, then, upon the expiration of the said notice, as aforesaid, this said lease and everything herein contained shall cease, determine and be void, and the said party of the second part shall not be liable to prosecution or damages on any ground whatsoever for having so avoided and determined the lease.”

The trial court found that the matters of annoyance specified under headings 1, 2 and 4 had taken place both prior and subsequent to the date when the lease was renewed; that the annoyance complained of in paragraph 5 did not exist at all; that the annoyance specified in paragraph 3 of the notice terminating the lease occurred subsequent to the renewal of the lease and that the plaintiffs immediately took steps to have the family in the basement of the apartment complained of removed, thus complying with the defendant’s demand. Tt further appeared that defendant shortly before giving the notice to quit had purchased a residence and obviously was looking for a way out.

It is apparent from the record that there was testimony to support the findings of fact as made by the trial court. The issue being for that tribunal and being supported by the evidence, we cannot reverse.

“Where parties to an action try and submit the question at issue upon a theory apparently satisfactory to themselves, and suffer the case to go to the jury upon the legal theory thus adopted, it is too late upon appeal, for either part}1, for the first time to question the legal propriety to the course pursued. Kapherr v. Schmidt, 98 N. J. L. 803; 121 Atl. Rep. 617.” Silver Rod Stores, Inc., v. Bernstein, 110 N. J. L. 120; 164 Atl. Rep. 450.

Certain of the grounds of appeal challenge the court’s rulings on the admission of evidence. It seems to us that the matters admitted were irrelevant and immaterial to the issue being tried; but if not, we are still satisfied from our examination of the whole case that court’s rulings brought before us were in no sense prejudicial.

The judgment is affirmed.


text:
    ABRAHAM GORDON, RESPONDENT, v. CITY OF NEW BRUNSWICK, APPELLANT.
    Decided October 17, 1934.
    Before Brogan, Chief Justice, and Justices Parker and Bodine.

      For the appellant, William F. McGloskey and Thomas H. Hagerly.

    For the respondent, Samuel D. Hoffman.

   Per Curiam.

This appeal was submitted at the same time as the case of Buckelew v. New Brunswick, 113 N. J. L. 338, and on substantially similar evidence. In the JBuckelew ease the respondent was a farmer selling his produce; in the present case, respondent was a huckster, attending at the market to by his daily supply. This is the only distinction between the cases, and it is a distinction without a legal difference.

For the reasons stated in the Buckelew case and applicable here, the judgment under review will be affirmed.


text:
    ROSE JEWELL AND FREELAND JEWELL, PLAINTIFFS-APPELLANTS, v. EVELYN THOMAS PRICE, DEFENDANT-APPELLEE.
    Submitted May term, 1934
    Decided September 28, 1934.
    Before Brogan, Chief Justice, and Justices Pabker and Bodine.
    For the plaintiffs-appellants, Hershenslein, O’Brien é Tarlalsky (Harry Tarialsky).

    For the defendant-appellee, Robert S. Hartgrove.

   Bodine, J.

The plaintiffs appeal from a nonsuit upon the opening. It appears from the printed discussion of court and counsel that the basis of the judgment was the fact that the defendant was not the owner of record of the premises where the plaintiffs alleged they were injured by defective stairs in common use in a tenement. It appears, however, that plaintiff was prepared to prove that defendant had over a period of years maintained the premises and received, as landlord, the rent paid by the plaintiffs and could, by the exercise of care, have remedied the defects complained of.

“The relation of landlord and tenant does not depend upon the landlord’s title, but is created by contract, either expressed or implied, by the terms of which the tenant enters into possession of the land under the landlord, and such relation may be created although the landlord is not the owner of the property. 35 Corp. Jur. 1210.” Ocean City Co. v. Johnstone, 110 N. J. L. 598; 166 Atl Rep. 307.

The judgment is reversed.