text:
    IRONBOUND TRANSPORTATION COMPANY, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL., DEFENDANTS.
    Argued October 8, 1930
    November 22, 1930.

      Before Justices Campbell and Bonnm
    Eor the prosecutor, James F. X. O’Brien.

    Eor the respondent, William II. Speer.

   Pee Cueiam.

The defendants, Public Service Co-ordinated Transport Company entered into a contract with the city of Newark for the removal of its tracks and overhead equipment on Walnut, Elm and Magazine streets, and the city agreed to the suspension of trolley service upon such streets and consented to the operation of buses on such streets and highways or over such other routes as might be determined and approved. At the same time the city of Newark gave consent to the Public Service Co-ordinated Transport Company to operate a bus line in substitution for such trolley service from High and Market streets via Market street, to Eerry, to Union, to Elm, to Pulaski, to Merchant, to Perry, to Magazine streets, to Avenue L, to Wilson avenue, returning by way of the same route to Market street, thence to Springfield avenue, to Thirteenth avenue, to High street, to Market street, subject to the approval of the public utility commissioners. This approval was, after hearing, obtained and it is this approval and the judgment of the board of public utility commissioners that is brought up by this writ for review.

Prosecutor’s first attack thereon is that such board was without jurisdiction under chapter 52 (Famph. L. 1928), to approve of any act or proposed act of the defendant, Public Service Co-ordinated Transport Company, other than the substitution of a bus route for the exact trolley route abandoned.

In this contention we do not concur for the reason that the statute in question, in our estimation, does not warrant and require, such a conclusion.

The second ground urged is that even if it is not to be considered strictly as a substitution there were no proofs upon which the hoard could find and place its conclusion of necessity and convenience.

In this, also, we find ourselves unable to concur. There was abundant proof warranting this finding and, therefore, it will not be disturbed.

The final ground is that the Public Service Co-ordinated Transport Company breached the consent given by the city of Newark.

But this is a collateral atack upon the municipal consent. This prosecutor may not do. Marathon Bus Line v. Public Utility Commissioners, 8 N. J. Mis. R. 319.

Prosecutor also urges what he calls additional, minor, reasons:

(a) The breaking up of the Kinney line will cause a hardship and inconvenience to persons using that line who travel above High street; besides, the inconvenience of a change and the payment of two fares.

(b) Traffic on Market street between the Pennsylvania station and High street is more congested than any other thoroughfare in Newark.

(c) Strenuous objection to the proposed change by the school authorities of Newark.

All of these, however, are grounds that the board should have considered and undoubtedly did consider, under the question of public necessity, and convenience, and, as we have already indicated, we find the proofs upon that question sufficient and ample to justify the finding of the board thereon.

The writ will be dismissed, with costs.


source: Caselaw Access Project

author: Pee Cubiam.

license: Public Domain

text:
    WEST JERSEY AND SEASHORE RAILROAD COMPANY ET AL., PROSECUTORS, v. PUBLIC UTILITY COMMISSIONERS OF NEW JERSEY, RESPONDENTS.
    Argued October 7, 1930
    Decided November 22, 1930.
    Before Justices Campbell and Bodine.
    Eor the prosecutors, Bourgeois & Coulomb and Thompson & Eanstein.

    Eor the respondents, L. Edward Eerrman, Robert K. Bell and Samuel F. Eldredge.

   Pee Cubiam.

The prosecutors petitioned the board of public utility commissioners for leave to eliminate five grade crossings in Elder township, Cape May county, and substitute two others in place thereof. The crossings asked to be vacated are known as Bennett station, Tabernacle road, Bob Hand’s, Taylor road and Sally Marshall’s. The substituted crossings proposed are in the immediate vicinity of the Sally Marshall crossing and the Bennett station crossing. Such substitution practically amounts to the construction of a right angle, instead of a diagonal crossing, now existing at each of these points.

The two railroads run closely to, and parallel to, each other through the section in which these crossings are located and two public roads parallel the railroads, one on each side.

The nearest crossing south of the Sally Marshall crossing is that known as York road. This is to remain. The distanee between such two crossings is three thousand seven hundred to three thousand eight hundred feet.

If the Taylor road, Bob Hand’s and Tabernacle road crossings should be closed, the nearest crossing south of York road would be Bennett station and the distance between them would be about five-sixths of a mile.

The board found that the community in which these five •crossings are located could be adequately and conveniently accommodated by the use of the two crossings; that the' reduction of the number of crossings would promote public safety and reduce the hazard to public travel and would be in the public interest. The board further found that it had no authority to vacate the Taylor road, Bob Hand’s and Tabernacle road crossings because no new crossing was intended to be substituted for each of them, and consequently made its order granting the permission praj^ed for as to the Sally Marshall and Bennett station crossings, and denied the application for leave to abandon the other three crossings. .. This order the prosecutors seek to have reversed and set aside solely because of the finding of lack of jurisdiction by the board.

The authority of the board is to be drawn from the language of Pamph. L. 1913, p. 91, § 1, which is as follows:

“Whenever a public highway and a railroad cross each other at the same level and it shall appear to the board that such crossing is dangerous to public safety, or that public travel or such highway is impeded thereby, the board of public utility commissioners may order the company operating such railroad, within such.time as said board may fix, to alter such crossing according to plans to be approved by said 'board, by substituting therefor a crossing not at the grade -of such public highway either by carrying such public highway under or over such railroad, or by reconstructing such railroad under or over such public highway, or by vacating, relocating or changing the lines, width, direction or location of such highway and the opening of a new highway in the place of the one ordered vacated

It is the latter portion only of this section with which we are here concerned.

It is true that this court in Erie Railroad Co. v. Public Utility Commissioners, 89 N. J. L. 57 (at p. 67), said, referring to the Public Utility act: “This being a remedial statute, it should receive a liberal, rather than a narrow construction. As was said by Mr. Justice Dixon, speaking for the Court of Errors and Appeals, in reference to the first grade crossing statute passed by the legislature (Pamph. L. 1874, p. 45), The avowed object of these statutes is highly beneficent, and, therfore, its provisions tending toward the accomplishment of that object should be liberally construed.’ Read v. Camden, 54 N. J. L. 347 (at p. 373). Subsequently this language was cited with approval, by that court, in the case of Morris Dredging Co. v. Jersey City, 64 Id. 587, 590.”

However, such liberality cannot be extended to the point of reading into a statute powers which its plain language does not give. But notwithstanding this, the control over opening, vacating and altering of public roads is in the legislature under the constitution of 1844 and it may delegate its authority. Hudson County Land Improvement Co. v. Seymour, 35 N. J. L. 47.

The legislature has delegated the power inherent in itself, to the board of public utility commissioners. What it might have done itself it has delegated to a branch of the government created by itself. The powers of the former are coincident and co-equal with that of the granting power.

Giving to the statute the broad construction to which it is entitled and having in mind that the board found, as has been previously stated, “that the community in which these five crossings are located could be adequately and conveniently accommodated by the use of the two crossings,” we think the conclusion reached by the board of public utility commissioners was erroneous.

Under such findings we think, therefore, that the board would have been warranted under the statute in finding that the substitution of the two new crossings in lieu of, and upon the vacation of the five, was proper.

The judgment of the board is therefore set aside.


author: Pee Cueiam.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ALEXANDER G. EDWARDS ET AL., PLAINTIFFS IN ERROR.
    Decided November 28, 1930.
    Before Gummeee, Chief Justice, and Justice Campbell.
    For the plaintiffs in error, George T. Vickers and George S. Holart.

    For the state, Joseph L. Smith, prosecutor of the pleas, and Joseph E. Gordon, assistant prosecutor.
   Pee Cueiam.

The plaintiffs in error were convicted upon an indictment charging them with a conspiracy to cheat and defraud divers persons by making public sale, by means of false pretenses, of the preferred stock of the Universal Finance Company (a small loan company) at a price which was fictitious and far above the actual market value thereof.

Our examination of the proofs submitted in the court below has led us to the conclusion that the one hundred and seventy-six assignments of error and grounds for reversal submitted in this cause are each and every of them without legal merit.

The judgment under review will therefore be affirmed.


author: Peb Cubiam.

text:
    SARAH SALLAJI, PLAINTIFF, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT ET AL., DEFENDANTS.
    Decided November 28, 1930.
    Before Gummebe, Chief Justice, and Justice Campbell.
    Eor the rale, Henry H. Fryling and Carl T. Freggens.

      Contra, Peter J. McGinnis.

   Peb Cubiam.

The present suit was instituted hy the plaintiff to recover compensation for injuries received by her in a collision between a trolley car of the Public Service Co-ordinated Transport and an automobile in which she was riding. The principal injury received by the plaintiff was a fracture of the right arm at the elbow joint, which made the amputation of the arm above the joint necessary. The trial resulted in a verdict in her favor, the jury awarding her $75,000.

In our opinion, the verdict is so excessive as to make it manifest that it could not have been the result of a fair, impartial and dispassionate consideration of the evidence in the case, and, for this reason, we conclude that the verdict should be set aside and a new trial ordered.


author: Pek Ctjkiam.

text:
    ANDRE PALUEL DE MARMON ET AL., PROSECUTORS, v. BOROUGH OF ROSELLE ET AL., RESPONDENTS.
    Argued October 9, 1930
    Decided November 24, 1930.
    Before Justices Campbell and Bodine.
    For the prosecutors, Spaulding Frazer.

    For the respondents, R. Robinson Chance.

   Pek Ctjkiam.

This writ brings up for review an ordinance of the borough of Roselle providing for the construction of a bridge on West Fifth avenue over a cut in which are located the tracks of the Baltimore and New York railroad and also the assessments for benefits placed against the lands of the prosecutors because of the erection of such structure.

Tlie reasons advanced by the prosecutors may conveniently be considered under two heads; those directed at the ordinance and those directed at the assessments.

Those directed at the ordinance:

1. The first ground urged in this direction is that the prosecutors did not have notice of the introduction and adoption of the ordinance for the reason that such notices were published in an obscure local newspaper; that they were not residents of the borough and they received no notice by mail although the statute so required, and their post-office addresses were known to the borough authorities for the purpose of mailing tax bills.

We are compelled to conclude that this point is not well taken in view of the holdings of this court upon the same question in Christie v. Bergenfields, 8 N. J. Mis. R. 629; Deamer v. Bergenfields, Ibid. 627; Specht v. East Orange, Ibid. 647.

The prosecutors attempt to negative such findings and insist that they should be overruled because of an earlier ruling in this court in Root v. Jersey City, 5 N. J. Mis. R. 973, upon the ground that the later holdings do not override this earlier adjudication. We think that they do not overrule it, but, in fact, sustain it. WTe conclude, therefore, that this point is not, in law', well taken, but that we are bound by the former pronouncements in these cases.

2. It is further urged that the ordinance must be set aside because it attempts to provide for an improvement which is beyond the power of the governing body.

It is urged that although general power of erecting such structures exists, nevertheless, here the initial duty to construct and maintain rested upon the Baltimore and New York Eailroad Company under section 26 of the Eailroad act (3 Comp. Stat., p. 4231), and consequently there was no powrer in the respondent to erect the structure at public expense.

Several reasons are advanced by the respondents why this attack upon the ordinance is unsound.

It appears from the arguments of counsel that the question of responsibility to erect the structure is to be determined by the question of whether or not West Eifth avenue was a public highway at the time the railroad was constructed.

We think this is not so.

Section 26 of the Railroad act, supra, provides:

“It shall be the duty of every railroad company * * * to construct and keep in repair good and sufficient bridges and passages, over, under and across the railroad or right of way, where any public or other road, street or avenue, now or .hereafter laid shall cross the same, so that public travel on said road shall not be impeded thereby * * * provided, that this section shall not enlarge the duty imposed by its charter upon any railroad company incorporated by special act and whose railroad was constructed before the second day of April, eighteen hundred and seventy-three.” By a stipulation in the state of the case (page 131), it appears: “* * * That the Baltimore and New York Railroad Company was incorporated under the General Railroad law * * * [act of April 2d, 1873, and supplements] the certificate of incorporation being dated October 27th, 1888, * * * and that its railroad was constructed in 1889 and 1890.”

It seems clear, therefore, that the railroad does not come within the proviso of this section, but that by the plain language thereof the duty to erect and maintain bridges rests upon the company, not only at the crossings of roads existing at the time of its construction, hut also such as shall be “hereafter laid.”

We do not find, and our attention has .not been called to anything limiting or curtailing this duty, unless, perhaps, it may be section 498 of the Road act (4 Oomp. Siat., p. 4597), making it unlawful “for the surveyors of highways or other body having the power to lay out or vacate public roads in this state, to lay out or locate a public road across such railroad and tracks within a distance of five hundred feet of such other public road or crossing * * *.”

Nothing of this character appears in the case before us.

The respondents further urge, notwithstanding the foregoing, that the borough had legal authority to cause the construction of such bridge:

1. Because it contracted with the railroad company so to do under authority of section 30 of an amendment to the Railroad act of 1903. Pamph. L. 1925, p. 377.

We are, however, unable to discover any applicability of this statute to the situation presented by the present case.

2. That, as the result of a joint application of the borough and the railroad company, the board of public utility commissioners approved of the building of the bridge by the borough.

It is strenuously urged upon us by the respondents, that the power bestowed by the legislature upon the board of public utility commissioners to regulate the operation of railroads and protect and abolish grade crossings, is a general legislative scheme superceding previous statutory regulations. The cases cited preclude any other rational conclusion, but this particular proceeding before the board did not have to do with the protection or abolition of a grade crossing and the board made no such finding. What it did do, so far as we can see, was simply to give its permission to the erection of the proposed structure. We are unable "to understand how this lifted a legal burden from the railroad and placed it upon the borough, or, indeed, in anywise settled the question of duty to construct as between the parties.

3. That the borough had power to construct the bridge under subdivision E2, section 1, article 20 of the Home Rule act as amended. Pamph. L. 1924, ch. 206, p. 433.

The provision relied upon is:

“1. A local improvement is one, the cost of which or a portion thereof, may be assessed upon lands in the vicinity thereof benefited thereby. Every municipality may undertake any of the following works as a local improvement. * * * (E2) The constructing, reconstructing, improving and reimproving bridges and viaducts.”

We think the power to authorize the construction of bridges and viaducts, in connection with the duty and power to open, widen, alter, vacate, and generally, control streets and public highways, must be conceded to have been effectually lodged in the municipality by this legislation.

' Whether this power and authority extends to cases as here, where the primary obligation to construct is cast upon a railroad company; whether it exists in the municipality only where duty and power both exist, or whether it exists with such force and to such extent that the governing body may éxercise its judgment and discretion in going forward with the construction even though the initial duty is upon the railroad, may be open and debatable questions which, because of our conclusion upon the next ground urged by the respondents, it seems to be unnecessary for us to decide. In fact our conclusions upon' all of the grounds urged and passed upon up to this point very likely become mere dicta.

The respondents urge that the prosecutors may not be heard to complain because they are in laches in obtaining the present writ in that they delayed obtaining it until the improvement had been completed, public moneys expended therefor and assessments for benefits levied and confirmed.

Section 56 of article 20 of the Home Eule act, as amended (Pamph. L. 1921, p. 511), is relied upon. This provides that no writ of certiorari shall be allowed or granted to review or set aside any ordinance for any improvement after the contract therefor shall have been awarded or to review any assessment after thirty days have elapsed from the date of confirmation.

The contract for the construction of the bridge was awarded August 5th, 1927, and the assessments were confirmed April 9th, 1930. A rule to show cause why a writ should not issue was allowed and the writ was allowed May 15th, 1930.

The proceedings to obtain the writ, so far as it is directed at a review of the assessments, were, no doubt, timely, but on the contrary that was not so with respect to the improvement ordinance.

The prosecutors urge, however, that this statutory restriction, before referred to, has no application to the present proceeding because a constitutional right of theirs would be invaded inasmuch as they had no notice, actual or constructive, o£ the adoption of: the ordinance.

There is no attack made upon the regularity of the proceedings in respect to the introduction and passage of the ordinance except that no notices were mailed to the prosecutors. We have already found, under the cases cited, that this did not constitute such a defect in the proceedings as to permit, or require, a setting aside of the ordinance. Prosecutors had constructive notice through the newspaper publications. It has been held (Cook v. Allendale, 79 N. J. L. 286 and United Owners Realty Company v. Lodi, 99 Id. 529, and the authorities they cite), that such a limitation of the time for review by certiorari is within legislative authority except in cases where the statute providing for the improvement or assessment is, itself, unconstitutional. This is not so here and, in fact, such a contention is not advanced or urged.

We conclude, therefore, for this reason, the writ should be dismissed so far as it is directed at a review of the improvement ordinance.

This brings us to a consideration of those attacks of the prosecutors that are directed at the assessment proceedings and the assessments themselves.

Those directed at the assessments:

1. That the governing body of the borough fixed and established no tentative area of assessment for the improvement..

The prosecutors preface their argument upon this point by the statement, or admission, that the Home Eule act, nowhere, by direct provision, requires the governing body to make a determination of the assessment area of an improvement which in its opinion contains the lands that will be subject to assessment for special benefits flowing from the improvement.

An examination of the statute confirms this statement and we are brought to the conclusion that not only is there no such statutory requirement but, on the contrary, no such power can reasonably reside in the governing body but from and for practical necessity must reside in the commissioners, of assessment.

We conclude, therefore, that this reason is not well founded.

2. The next point is that the lands of the prosecutors are not within the vicinity of the improvement as contemplated by the statute.

This appears to us to be entirely a question of fact and a matter requiring the exercise of judgment and discretion upon the part of the assessment commissioners, who have found against the prosecutors with respect thereto, their judgment affirmed by the borough authorities in confirming the assessments, and if an error with respect thereto has taken place to the injury of the prosecutors, they have full and ample opportunity to obtain relief and secure a correction by the right of appeal to the Circuit Court given them by the statute.

3. This ground is closely connected with the preceding ground and is that prosecutors’ lands were not only not in the vicinity of the improvement but were of such a character that they could not be benefited. In support thereof Beattie Manufacturing Co. v. Little Falls Township, 7 N. J. Mis. R. 161 is cited. But we think that case is not in point with the facts in the present case. There it, uncontrovertedly, appeared that, because of the physical situation and location of the land, it was impossible for it to receive any special benefit from the construction of a sewer. Here the situation is fundamentally and radically different, inasmuch as the question whether prosecutors’ lands are specially benefited and, if so, to what extent, is a matter of open fact and sound judgment. Under such circumstances prosecutors’ remedy is by appeal to the Circuit Court.

4. It is next urged that both the ordinance and the assessments must fall because the ordinance provides “that the cost and expense of said improvement herein provided for and to be made hereunder shall be justly and amicably assessed upon lands in the vicinity thereof benefited thereby, in the manner and to the extent and in the proportion provided by law,” whereas the statute provides that the cost shall be assessed “justly and equitably.” This contention seems to us to be devoid of merit. The word “amicably,” most evidently, was erroneously employed in place of the word “equitably,” but it is explained and qualified and we think legally corrected by the language of the ordinance immediately following, namely: “in the manner and to the extent and in the proportion provided by law.”

5. The next ground is: “The assessments are wholly unreasonable and improper.”

What is urged under this point is that properties located to the northeasterly side of the bridge have not been assessed, but that the assessments have been solely confined to properties to the southwesterly side, including those of the prosecutors. Bespondents’ reply to this 'is that the prosecutors have taken an appeal from the assessments levied against their lands to the Circuit Court under Pamph. L. 192o, p. 233, and that they have a complete remedy in respect to this complaint by such proceeding. But the prosecutors say that upon the facts established, and now before this court, a fundamental legal error upon the part of the assessment commissioners is presented and that their sole remedy is in this court by and through the present writ of review, and in support thereof urge Gross v. Jersey City, 99 N. J. L. 457.

But we think and conclude that the situation presented here is not analogous to that presented in the case cited. It may well be that a landowner is entitled to a diminution of the actual amount of benefit received by his lands through an extension of the assessment area, but proceedings of this character cannot be made “dollar perfect.” And we are unable to see that upon appeal to the Circuit Court just such a situation as here complained of does not become pertinent and a necessary and proper element to be inquired into in determining whether the assessment appealed from “is a just and fair award.” Both the letter and spirit of the act providing for such appeal is to this effect, because it clothes the Circuit Court with power and directs it to make inquiry into all matters relating to the “justness and fairness” of the award and to reduce or correct the assessment. So it was held in Graham v. Ocean City, 98 N. J. L. 426; Breckenridge v. Newark, 94 Id. 361; Burstiner v. East Orange, 4 N. J. Mis. R. 280; affirmed, 103 N. J. L. 174. If the Circuit Court acts without facts to support its findings or proceeds to judgment upon erroneous legal principles, its judgment is then open to review and correction by this court.

6. The next ground is, “the appointment of the commissioners of assessment was so illegal as to void the assessments made.”

Here it is urged:

(a) That the statute (Pamph. L. 1918, p. 485, art. 20, § 18) provides: “The governing body may, by resolution, upon the completion of any local improvement, appoint three discreet freeholders, who shall be residents of the municipality and in no way interested in such improvement,” and that the record in this case shows that the assessment commissioners were not appointed by resolution of the governing body, but by the mayor, and his action concurred in by the governing body.

Now the return to the writ shows that at a meeting of the mayor and council held November 16th, 1928:

“The mayor appointed the following assessment commissioners subject to confirmation by council. Fifth avenue bridge. F. L. Hanks, F. E. Nodocker, F. C. Manley.

Councilman Moore moved that appointments be confirmed, seconded by Councilman Hill, and duly carried.”

This, of course, is not in strict compliance with the statute, but the result is the same, or substantially so, and we see no reason why the assessmentsj for this technical variance, should be set aside.

(b) That nowhere, upon the face of the proceedings, does it appear that the commissioners were discreet persons.

We are at loss to see how this could be made to appear otherwise than by the result of the work of the commissioners. For the nominator to have so declared, or the resolution of appointment to have so stated, would have been merely a statement of opinion. The oath of office taken by each commissioner containing such an averment would have amounted to nothing more.

We conclude that there is nothing in this ground warranting a setting aside of the assessments.

(c) It does not appear that the assessment commissioners were impartial.

It is true that the cases cited by the prosecutors (Brewer v. Elizabeth, 66 N. J. L. 547; State v. Newark, 25 Id. 399, and Batchelor v. Avon-by-the-Sea, 75 Id. 449, and the eases cited under each) hold that the commissioners must be shown, somewhere in the proceedings, either in the proceeding to appoint, oath of office or otherwise, that they are possessed of the qualifications required by the statute authorizing their appointment, otherwise the assessments made by them will be set aside.

There are three qualifications laid down by the statute (Pamph. L. 1918, p. 485, art. 20, § 18), namely: They must be discreet freeholders resident in the municipality and not interested in the improvement. The qualification as to discreetness we have already disposed of.

Prosecutors complain that they are-not disinterested because some one or more of them were members of the borough council during the time the improvement was undertaken and carried on, and some one or more of them is an owner of real estate in an area not assessed but which should have been assessed.

We may here say that the requirement of these cases that the qualification as to impartiality must be shown somewhere in the proceedings appears to have been met and formally satisfied by their respective oaths of office (state of case, page 31, el seq.), and their oaths attached to their report. (State of case, p. 29.) It does not appear that they are freeholders of the borough but this does not seem to be urged to the contrary by the prosecutors.

Prosecutors in citing section 18, article 20 {Pamph. L. 1918, p. 485), did not quote the section in full. There should be added to it this: “* * * none of the commissioners shall be disqualified by reason of the fact that they or any of them may own a property or properties included in such assessment.” This disposes of the contention that any one that may own property so situated is disqualified.

Eurther, section 30, article 20 of the Home Rule act (amended 1924, p. 505) concludes as follows:

“* * * All assessments for local improvements shall be presumed to have been regularly assessed and confirmed, and every assessment or proceeding preliminary thereto shall be presumed to have been regularly made or conducted until the contrary-be shown.”

This seems to us to reach to the qualifications of the assessment commissioners and to effectively dispose of all the reasons urged against them.

Einally, the prosecutors suggest that there are other grounds set forth in their reasons filed in the case which are not specifically referred to or argued and that it is not, for that reason, to be taken that they are abandoned.

However, it is too well known to require citation of authority that reasons filed and not argued are abandoned.

We conclude, therefore, that the proceedings brought up for review must be affirmed and the writ dismissed, with costs.


author: Per Curiam.

text:
    ANTONIA TREUPEL, PLAINTIFF, v. YELLOW CAB, INCORPORATED (A NEW JERSEY CORPORATION), AND HARRY SCHLINGER, DEFENDANTS.
    Submitted May 16,
    December 12, 1930.
    Before Gummeee, Chief Justice, and Justices Teenchaed and Lloyd.

      Por the rule, Turner & 8falter.

    Contra, Frazer & Trimble.

   Per Curiam.

This is defendants’ rule to show cause why plaintiff’s verdict should not be set aside. The only question is as to the amount of the verdict, defendants contending that it is excessive. It was for $7,500.

The testimony reasonably tended to show that plaintiff, a widow about sixty-five years of age, was an interior decorator, having an office on Fifth avenue, New York, and was there conducting a successful business. She was injured while riding in a taxicab as a passenger, the taxicab being owned and operated by the defendant company and being driven by the other defendant, Harry Schlinger. It also appears that while going fifteen or twenty miles an hour, the taxicab collided with a stanchion post, having a concrete base about four feet square, with such force that it moved the post over eleven feet. The plaintiff was thrown forward with terrific force, hitting the front seat and rendered unconscious. She was severely injured about the face, arms, legs, side and back. She was carried out of the wreck to a house near by, where she remained in bed, under medical attention for the most part, for three weeks.

It further appears beyond dispute that prior to the accident plaintiff had an income from her business of about $3,000 a year. The trial was three years after the collision and up to that time the plaintiff had been unable to work, and it appears doubtful, according to the testimony of the medical men and other testimony, that she would ever be able to work again.

While about sixty-five years of age, she had always enjoyed good health, had been quite active up to the time of the accident, and was a woman of remarkable attainments arid capacity for business in her line.

We cannot say that the verdict of $7,500 is excessive.

The rule to show cause will be discharged, with costs.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. ERNEST WASHINGTON, PLAINTIFF IN ERROR.
    Submitted May 16, 1930
    Decided December 15, 1930.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    Eor the plaintiff in error, William B. Burran (Clarence L. Cole, of counsel).
    Eor the defendant in error, Louis A. Bepetlo.

   Per Curiam.

Plaintiff in error is a constable and was convicted on an indictment charging a breaking and entering with intent to-kill, rob and to commit an assault and battery. He was-sentenced to a term of two years in state prison and to-resign his office as a constable.

The case is here on identical assignments of error and reasons for reversal, four of which are argued in the briefs-of counsel. Under these it is urged that the court should have granted a motion instructing the jury to acquit the-defendant, and in any event that the verdict was against, the clear weight of the evidence.

Washington, with a man named Wisler, in an intoxicated condition, went to the home of a woman named Williams,, in Atlantic City, and demanded ■ admittance.. The door not being opened, he and Wisler proceeded to batter their way in, one by -,shooting open the lock and the other smashing; a window. When inside they flourished revolvers in a threatening manner and demanded to know where a certain woman was. Shooting up and breaking a lock, breaking the window and entering the house (unjustified as it all appears) certainly’indicated a breaking and entering; also it would seem to imply an intent to at least assault somebody •and justify the conviction.

It is next urged that the conviction being a general one, it could not be sustained. The court had directed the jury that no conviction could be had on the charge of breaking and entering with intent to rob. This did not affect the other charge or the conviction under it. State v. Huggins, 84 N. J. L. 254.

The sentence is erroneous, however, in so far as it requires that the defendant resign his office of constable, and the judgment will be reversed and the case remanded in accordance with section 144 of the Criminal Procedure act ■of 1898 to the end that a proper judgment may be rendered.


author: Pee Curiam.

text:
    J. MANRIQUE MENDEZ AND FELIX BLANCO, PLAINTIFFS, v. JACOB E. GURTNER, DEFENDANT.
    Submitted May 16, 1930
    Decided December 12, 1930.
    Before Gummere, Chief Justice, and Justices Tren■chard and Lloyd.

      Eor the rule, Heine ■& Laird (M. Casewell Heine, of counsel).
    Contra, Isadore Rabinowitz.

   Pee Curiam.

This suit was tried in the Essex Circuit and resulted in a verdict for the plaintiff J. Manrique Mendez for $7,500. It is here on defendant’s rule to show cause why the verdict should not be set aside.

It is said first that the verdict is against the weight of the evidence, and, secondly, that the judge erroneously refused to direct a verdict in favor of the defendant.

We are not impressed with these contentions. Mendez lost the sight of his left eye in a collision between the car owned and driven by him and an automobile admittedly belonging to and operated by the defendant at an'interseetion of Lindley road (running north and south) and Stevens avenue (running east and west), in the borough of Cedar Grove, in Essex county.

The accident occurred around six o’clock in the afternoon of Sunday, July 23d, 1938. PlaintifE Mendez was driving south on Lindley road and defendant was driving west on Stevens avenue and approaching the intersection of these roads on the plaintiff’s left.

The contention of the defendant is that it was the speeding of the plaintiff that caused the collision, and that he, the defendant, was not negligent. Defendant argues that an examination of the conflicting. testimony will show that the jury’s finding against him on those issues was against the great weight of the evidence and the result of passion, prejudice, sympathy or mistake. To that we cannot agree. Our examination of the testimony and of the proven physical facts of the accident results in the conclusion that the finding of the jury was reasonably supported by the evidence, both with respect to the negligence of the defendant and the- alleged contributory negligence of the plaintiff.

The rule to show cause will be discharged, with costs.


text:
    BILLEE BAKER, PLAINTIFF, v. ANTHONY TURANO, SAM SHAMES, RED TOP TAXICAB CORPORATION, OR IN THE ALTERNATIVE, JOSEPH DUNSKY, DOING BUSINESS AND TRADING AS RED TOP TAXICAB CORPORATION, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS.
    Submitted May 16, 1930
    Decided December 12, 1930.
    Before Gummere, Chief Justice, and Justices Teen-chard and Lloyd.
    For the rule, George F. Seymour, Jr.

      Contra, Eitay & Ereiger (Peter J. McGinness, of counsel).
   Per Curiam.

This is the rule to show cause obtained by the defendants Sam Shames and Red Top Taxicab Corporation, why plaintiff’s verdict for $10,000 should not be set aside.

It is first said that there was error in the refusal to nonsuit. We think not. Plaintiff was a professional singer and dancer. On the night of the accident she had been performing1 at Nutley. After the performance she went to Newark intending to take the tube train to New York. She was accompanied by a girl friend. They had intended to take the train at three-thirty a. m., but they missed that train. The defendant Shames, a taxicab driver, came up and told them that he could make the train to New York by taking them to Journal Square. Plaintiff did not know where Journal Square was but agreed to give him $2 to drive her there. They started in one of defendant’s taxicabs. It had a glass partition between the passengers and the driver.

The. evidence tended to show that the driver drove so fast that the plaintiff became scared and she cautioned him not to go so fast. He slowed down, and later started speeding again; she cautioned him again and he slowed down again and then started speeding.again and ran into an electric light pole on his left-hand side of the road, and in the collision the plaintiff was thrown through the glass partition and severely injured.

Defendants say she should have been nonsuited because she did not get out of the cab when he speeded. But the testimony does not disclose that she had any opportunity to get out, and she says that she thought, having been cautioned twice, he would heed her admonition.

The defendants say that the judge erred in refusing to charge the defendants’ request. We think not. In so far as it was proper it was charged in substance and effect.

The defendants say that the verdict was excessive. We think not. It was for $10,000 and was moderate in amount considering the severity and character of her injuries and their effect upon her earning power, present and prospective.

The rule to show cause will be discharged, with costs.


author: Pek Cukiam.

text:
    ANNA M. YENTZER, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. JOSEPH WIDRA, DEFENDANT.
    Submitted May 16, 1930
    Decided December 12, 1930.

      Before Gtjmmehe, Chief Justice, and Justices Tkenchakd and Lloyd.
    For the rule, Joseph Varbalow and Palmer & Powell.

      Contra, Howard Eastwood (Philip Wendhos, on the brief).
   Pek Cukiam.

This is plaintiff’s rule to show cause why a verdict of $2,000 should not be set aside as inadequate.

Suit was bourght to recover damages under the Death act for the death of plaintiff’s husband. It appears that in the evening of March 14th, 1929, plaintiff’s intestate was about to cross Main street in Maple Shade, Burlington county, when he was struck by an automobile driven by the son of the defendant. Decedent was thrown to the roadway, was picked up unconscious, and lived in an unconscious condition for about one week and then died at the Cooper Hospital in Camden.

This rule to show cause why the verdict should not be set aside and a new trial granted with respect to damages only was granted, and there is thus raised the only question which has been argued.

We think that the verdict is inadequate.

The deceased left him surviving his widow and three children. The children were of full age and self-supporting, and this suit is for the benefit of the widow alone. Deceased for years prior to and at the time of his death owned and ran a feed and grain business, which business was prosperous in a small way, and the profits therefrom the husband devoted to the support of the family, consisting of himself and wife. The deceased was a man in good health. He gave to his wife $25 a week for the table, and that will be deemed to be a contribution for her food of $650 a year. In addition thereto the evidence shows that he paid her doctor bills and furnished her money for clothing and the like. We think that the evidence regarded in the light most favorable to the defendant showed that the wife suffered by her husband’s death a pecuniary loss of approximately $800 a year. Both husband and wife were sixty years old. At that age the expectancy of life was a little more than fourteen years.

In such circumstances we think that the verdict of $2,000 was inadequate. The rule to show cause will be made absolute to the end that a new trial be had limited to damages only.


text:
    PATERSON SASH AND DOOR COMPANY, PLAINTIFF-RESPONDENT, v. MICHAEL LOSCALZO ET AL., DEFENDANTS-APPELLANTS.
    Submitted May 16, 1930
    Decided December 12, 1930.
    Before Justices Case, Daly and Donges.
    For the appellants, Hoolcer I. Goggeshall.

   Pee Cueiam.

This appeal brings up a judgment of the Fourth Judicial District Court of Bergen county in a mechanics’ lien suit brought by the plaintiff against the defendant Jenson, as builder, and against Michael Loscalzo and his wife, as owners. The trial court found in favor of the plaintiff and entered judgment for $93.24 generally against Jenson and especially against the property of the defendants Loscalzo. A single question is involved in this case, namely, whether a failure to particularly describe the lands on which the defendants Losealzo were erecting a house in a contract with the builder, which was filed before work began, deprives the owners of the benefit of section 2 of the Mechanics’ Lien act.

It is admitted that the contract was filed in the county clerk’s office of the county in which the building is situate. ’The reference to the building is as follows: “Building to be erected on the lands of the owner described as follows: A six-room family house according to the drawing and specifications for six-room house made by Charles O. Karlson and copies of said specifications are hereto annexed.” It is admitted that the appellants owned the one plot of ground on which the building is located and no other. The trial judge found as a matter of law that the contract was insufficient to give the appellants the benefit of the statute solely on the .ground that the contract did not contain a sufficient description of the property.

With this conclusion we disagree. The statute in question •does not require either expressly or by implication a description of the land upon which the building is to be erected. What the statute requires is that the contract shall be filed in the office of the county clerk, and not in the office of the register of deeds, if one exist, or in the office of the county clerk in the records in which transfers of title to land are recorded. Obviously, therefore, the purpose of the statute in giving notice is accomplished when one may go to the clerk’s office and find a contract between the parties in question. Thereafter the intending materialman or laborer is required to ascertain whether the contract in fact refers to the building in which he may be interested. The proceeding is entirely statutory and it seems to us it would be a hardship and a strained construction to say that the contract must contain a definite and particular description of the lands in question.

The judgment is reversed.


text:
    GEORGE HOAG AND MARTHA HOAG, PLAINTIFFS-RESPONDENTS, v. MARY MILLER AND FRANK MILLER, DEFENDANTS-APPELLANTS.
    Submitted May 16,
    December 12, 1930.
    Before Justices Case, Daly and Donges.
    For the appellants, Clyde Christie.

    For the respondents, Morris B. Kantoff and W: Stanley Naughright.

   Per Curiam.

This appeal brings up á judgment of the District Court of the First Judicial District of Bergen county in favor of plaintiffs and against the defendants for $500 damages, and costs.

The facts as disclosed are that plaintiffs had agreed to-purchase from the defendants two certain lots in Bergenfield, New Jersey, for the sum of $1,000. By the terms of the agreement plaintiffs were to pay $50 on the execution of' the agreement, and the balance of $950 in monthly installments of' $10 each, beginning with the first day of February,. 1925. The initial payment of $50 and the monthly installments of $10 each were paid up to November 15th, 1928. The plaintiffs likewise paid taxes for several years on the-lots.

The dispute arises over the question of payment of installments beginning on or about December 1st, 1928, when it was alleged on the part of the plaintiffs that certain cheeks to cover several monthly payments were put in the mail addressed to the defendant Mary Miller. These checks, defendants assert, were never received. On or about April 27th, 1929, plaintiff Martha Hoag deposited in the mail an envelope addressed to the defendant Mary Miller, containing a check in the sum of $50, which envelope and check were returned to the plaintiff with the notation “refused,” and thereafter on June 25th, 1929, she mailed a check for $10, which was returned in the same manner.

The question of fact involved was whether there was a default in the payment of installments after November 15th, 1928, the plaintiff asserting that such payment was in advance of the December 1st, 1928, installment, and the defendant Mary Miller insisting that the payment of November 15th was for the installment then overdue as of November 1st. The defendant Mary Miller testified that she did not receive the envelopes and checks prior to April, 1929, and that default having continued for a long time, and the plaintiff Martha Hoag having during November or December, 1928, told her that she did not want the lots and that she did not intend to go forward with the contract, defendant assumed that the plaintiffs had terminated their undertaking.

The state of the case exhibits a situation which raised a question of fact as to whether there had been a default on the part of the purchasers in failing to pay taxes and to pay the monthly installments as they fell due. It would appear from the state of the case that the question of waiver of payment in cash instead of by check was fairly in the case. Brown v. Ely, 92 N. J. Eq. 487; 26 Rul. Cas. L. 638.

There appears, however, one insurmountable objection to the judgment in this case. The state of demand alleges that the failure of defendants to accept payments constitutes the basis of the action, and thereby plaintiffs seek damages for the alleged breach of. contract, that is to say, the refusal of defendants to receive payments. The state of the case is barren of any proof of any damages sustained by plaintiffs. The only proof of any sort was as to the amount of installment payments made by plaintiffs to defendants.. The recovery of these sums was not the basis of the suit.

It appears, therefore, that there is no testimony to sustain a verdict for damages for the alleged failure of defendants to perform their contract. Eor this reason the-judgment of the District Court is reversed and the cas& remanded for a new trial.


text:
    RAYMOND W. SALM ET UX., PLAINTIFFS, v. DAVID A. TIERNEY, DEFENDANT.
    Submitted May 16, 1930
    December 12, 1930.
    Before Justices Case and Donges.
    Eor the rule, McCarter ■& English.

      Contra, Alan Bruce Conlin.

   Pee Cueiam.

This case was tried at Union Circuit and resulted in verdicts in favor of the plaintiff Raymond W. Salm in the sum of $249.38, damages to his automobile, and in favor of the-plaintiff Wilhelmina Salm in the sum of $200 for personal, injuries.

The two plaintiffs testified that as they were proceeding-in a northerly direction on what is known as the Shore road and were on the right-hand or easterly side thereof, near Morgan, the defendant endeavored to pass a truck that was-in front of him, and in so doing went over the middle of the road and upon plaintiff’s side and struck the plaintiff’s car head on. Another witness produced by the plaintiffs, Mrs. Frances M. Wolcott, did not see the accident but testified that after the impact the cars were on her right side as she was proceeding southerly. She said: “Well, they were almost over to the shoulder, I should think, what you call the shoulder of the road, isn’t it, that part?” Another witness produced by the plaintiffs, Drew, did not see the collision but said that the defendant said something about a small truck being involved in the, collision, and that the cars were in the center of the road after the collision.

The defendant Tierney testified that as he was proceeding southerly, plaintiff’s ear came out of line and endeavored to pass a truck ahead of him, and that plaintiff apparently lost control of his car and came over on defendant’s side of the road and struck his car at about the front wheel and front fender, but not head on; and that after the collision both cars were on the extreme westerly side of the road, and that the front wheels of plaintiff’s car were off the paved road on defendant’s side.

There was testimony by several witnesses that the damage to defendant’s car was entirely on the left side and that the front was not damaged.

The defendant’s testimony is supported by the two occupants of his ear, his wife and his nephew, who testified that the plaintiff’s car came across the road and struck the defendant as he was on his own side of the road. Four other witnesses, who were in the vicinity and who testified that they saw the collision, corroborated the defendant’s version, besides which the nature of the damage to defendant’s car, as well as the position of the cars following the accident tend to support the defendant’s version as to how the collision occurred.

A careful review of the testimony leads to the conclusion that the verdicts in favor of the plaintiffs are clearly against the weight of the evidence and should not be permitted to stand. The rule to show cause is made absolute.


text:
    BARBARA D. SLIFER, EXECUTRIX OF THE LAST WILL AND TESTAMENT OF ELIZABETH M. EARL, DECEASED, PLAINTIFF, v. JOSEPH E. JANOSKI, DEFENDANT.
    Submitted May 16,
    December 15, 1930.
    Before Gummeke, Chief Justice, and Justices Trenchakd and Lloyd.
    Eor the rule, Collins & Corbin (Edward A. Marlcley, of counsel).

      Contra, Walter W. Weber.

   Pee Curiam.

The defendant has a rule for new trial and in support of the rule it is said that the learned trial judge erred in his instructions to the jury and that the damages are excessive.

It is claimed that the charge permitted a finding against the defendant, even though negligence or its causal relation to the death of Mrs. Earl were not proved. We think the charge justifies no such criticism. The learned trial judge had with clearness charged that the action was based solely on negligence and this was in nowise modified by the instruction first complained of. As to the proximate relation of such negligence as the jury might find to exist to the death of Mrs. Earl there could be no sort of doubt, and so much was admitted by the defendant’s counsel during the course of the trial.

The damages, however, we deem excessive. The action was to recover the pecuniary loss sustained by the next of kin through the death of Mrs. Earl. Mrs. Earl was fifty-four years of age and left surviving her husband, sixty-one years old, and a son nineteen years old. Beyond the fact that they lived together, there was no proof of pecuniary loss beyond that incident to such relationship. There was an expectancy of life in the husband of fourteen to fifteen years and during this period the jury could anticipate her care of the household and could make its award accordingly. We think the award of $10,000 was too large, and if the plaintiffs will accept a reduction of the verdict to $6,000, the rule will be discharged; otherwise it will be made absolute.


author: Porter, S. C. C.

text:
    ALOJZY KULA, PLAINTIFF, v. JERSEY MUTUAL CASUALTY INSURANCE COMPANY, A CORPORATION, DEFENDANT.
    Eor the plaintiff, Vincent Schultz.

    Eor the defendant, George F. Seymour, Jr.

   Porter, S. C. C.

This case was tried by the court, by consent of the parties, without a jury on an agreed state of facts.

It appears that there was an automobile collision on August 27th, 1927, between an automobile operated by Stanley Kula, a son of the plaintiff, in which his mother, Mary A. Kula, was a passenger, and a taxicab owned by Erank Eernicola. Mary Kula received bodily injury. A suit was brought in this court by the plaintiff and his wife, Mary A. Kula, against said Eernicola for damages to the wife for bodily injuries and to the husband, the plaintiff here, for loss of consortium of his wife, expenses, &c., and a judgment was rendered in their favor against Eernicola in the sum of $750 for the wife and $500. for the husband.

It further appears that the said Eernicola was insured in accordance with the provisions of the statute (Pamph. L. 1926, ch. 231), against loss from liability for damages on account of bodily injuries resulting from the operation of the taxicab and that the insurance carrier was the Jersey Mutual Casualty Insurance Company, the defendant herein. The .said insurance company satisfied the judgment obtained by the said Mary Kula but refused to satisfy the judgment obtained by Alojzy Kula, the plaintiff herein.

This suit is to recover the amount of the judgment held by the plaintiff against Eernicola from the defendant insurance company under the policy of insurance aforesaid. The only question is as to the liability of the defendant to the plaintiff under the said insurance policy.

The policy was written under the authority of the statute referred to and in pursuance therewith. That statute provides that no auto cabs shall be operated upon any street until the owner shall file with the commissioner of motor vehicles an insurance policy in the sum of $5,000 “against loss from the liability imposed by law upon the auto cab owner for damages on account of bodily injury or death suffered by any person or persons as a result of an accident occurring bjr reason of the ownership, maintenance or use of such auto cab upon any public street,” &c. The controlling words seem to be “damages on account of bodily injury or death suffered by any person or persons as a result of an accident.”

The defendant construes this statute to restrict recovery only to those persons actually suffering bodily injury or death by reason of the operation of an auto cab. It seems to me .the legislative intent is much broader than that and allows recovery to anyone who suffers damages “on account of bodilj injuries,” whether to himself, his wife or to his dependent child. The damage to the husband in the case at bar as assessed by the jury aforesaid is recoverable under the statute and policy of insurance issued thereunder.

The judgment will be for the plaintiff and against the defendant in the sum of $500, with interest and costs.


author: Bagues, V. C.

text:
    Julian A. Cohen, complainant, v. Peter Chrissanthis, &c., defendants.
    [Decided December 19th, 1930.]

      Mr. Milton M. Unger, for the complainant.

      Mr. Samuel Kaufer, for the defendants.
   Bagues, V. C.

The bill is to foreclose a mortgage given by Chrissanthis and wife to the complainant. Chrissanthis and wife conveyed the mortgaged premises to Palent Brothers, a corporation, which assumed the mortgage. Palent Brothers conveyed to Meyer Holding Company and the deed to the latter contains an assumption of the mortgage. The bill prays that the defendant be decreed to pay the mortgage debt. Meyer Holding Company counter-claims praying a reformation of the deed and a decree that the deed he declared to be a mortgage to secure $2,000 and that the assumption clause be stricken therefrom because of mutual mistake.

The proofs show beyond question that the deed was given as security for a debt. The premises were scant security and the deed instead of a mortgage was given and accepted pu the suggestion of counsel that it was the advisable course to a more speedy recovery of the debt.

It is equally clear that there was no arrangement that the grantee should undertake to pay the mortgage debt, and that neither grantor nor grantee was conscious of the assumption clause in the deed when the deed was delivered.

It also unmistakably appears that the scrivener—a novice —stupidly appended the assumption clause and perfunctorily copied it from the prior deed, refreshingly ignorant of the load of liability it carried.

The prayer of the counter-claim will be granted, but without costs.


author: Baoebs, y. C.

text:
    Charles Causte, complainant, v. Board of Chosen Freeholders of the County of Essex New Jersey, and A. C. Windsor, Incorporated, a corporation of New Jersey, defendants.
    [Decided December 19th, 1930.]

      Mr. William V. Azzoli, for the complainant.

      Messrs. Sandmeyer c& Meisner, for the defendants.
   Baoebs, y. C.

The defendant A. C. Windsor, Incorporated, had the general contract for the erection of the Isolation Hospital in Belleville. The complainant contracted with the defendant to install the sewer and drain pipes. The price was definite; the quantum of work was indefinite, but included all coming within the general description of sewers and drains. The complainant performed his contract. His performance required changes to conform to the performance of the general contract, and unforseen additional work was required. All extras were ordered by the defendants’ agents in charge of the defendants’ contract with the board of freeholders. Not having been paid, the complainant filed his bill to enforce his lien upon the funds in the hands of the county, notice whereof had been served pursuant to the provisions of the Municipal Mechanics’ Lien act. A reference was made to a special master to state the account, made up of eighty-two items. The master found that there was actually due the complainant $9,308.59, but, his lien claims being for $8,445.30 only, he allowed the latter sums; and after deducting stop-notices filed by creditors the master reported the net amount to be $4,369.19. The defendants filed more than fifty exceptions; the major portion attacking items in the account. The defendants offered no testimony at the hearing before the master; their counsel contenting himself with a cross-examination of the complainant and his witnesses although, it would appear, the officials of his client are as conversant as the complainant with the work for which ho seeks a recovery. On the argument of the exception, counsel relied on the weakness of the complainant’s proof. It was, of course, his privilege to refuse information, but he ought not complain if the master’s findings do not accord with facts he may have withheld. The master labored anxiously and with painstaking care to arrive at a just verdict, as his report indicates, and after carefully reading the testimony the court is unable to see how he could have reached a different conclusion.

That the complainant performed his contract, letter perfect, is not disputed. The objections are to charges for extra work. The extras were mainly for additional depth of trenches. They were not ordered in writing. That is one of the points. The contract provides that there should be no allowances for extras unless authorized in writing. All extras were verbally ordered by the defendants’ two superintendents on the j oh, Eiker and Eoth, as the job progressed, to enable the complainant to do his work in accordance with the requirements of the defendants’ general contract with the county. The authority of the superintendents to order the extras was not' only inherent in their positions, but' it was also recognized and confirmed by the payment of the complainant’s invoices, in the early stages, for work on the contract price and for the extras ordered by the superintendents.

Exceptions taken to the items for extras rest on the alleged insufficiency of proof of the extra work and of the charges. The complainant’s father was in charge of the work. He kept a record in a handbook and the entries were transferred daily into a book kept by the complainant. Both books were in evidence and the items of the contract and of the extra work were verified by father or son ox both, and the actual doing of the extra work was testified to in most instances. Monthly statements were rendered the defendant in the early periods and when adjusted and approved, as to items and charge, were paid. The charges for extras conform, in the main, to the contract price for similar work. There was ample testimony warranting the master’s findings.

The exceptions are overruled.


author: Ikgeesoll, V. C.

text:
    Helen Lafferty McPherson, petitioner, v. William Boyd McPherson, defendant.
    [Decided December 22d, 1930.]

      Messrs. Thompson & Hansiein, for the petitioner.

      Mr. J. Boy Oliver, for the defendant.
   Ikgeesoll, V. C.

The testimony is that the defendant was a farmer and dairyman, conducting said business on property owned by his wife. Petitioner testified that she assisted her husband in the conduct of said business, not only, as she expressed it, "doing the work of two hired men,” but also acted as banker, conducting most of the financial part of the business. The husband insists that he was ordered from the premises. He has disposed of his stock of cattle at prices much below the true value. It is needless' now to determine whether or not such disposition was for the purpose of avoiding payment of alimony to his wife.

It is also true that a mortgage upon the premises is now being foreclosed, but it must be noted that the complainant is the brother or brother-in-law of the petitioner. The court cannot help but believe that this foreclosure is proceeding with the consent of the petitioner.

The only testimony concerning the health of the petitioner is hers, when she testified that she was doing the work of two men, but that her health was not good now.

Without determining any other question, alimony pendente lile at the present time will be refused. Verbeeck v. Verbeeck, 93 N. J. Eq. 17, opinion by the present chancellor, then vice-chancellor, which is most illuminating upon the subject: "If the wife has sufficient separate property, the reason for giving her either temporary alimony or money to defray her expenses in the suit does not exist, and she is not entitled to either.” Westerfield v. Westerfield, 36 N. J. Eq. 195. See, also, Suydam v. Suydam, 79 N. J. Eq. 144.


author: Ingeksoll, y. C.

text:
    John J. Foster and Thomas J. Christensen, complainants, v. Bay Front Land Company, a corporation of New Jersey, et al., defendants.
    [Decided December 22d, 1930.]

      Messrs. Babcock <& Champion, fór the complainant Ezekiel Y. Corson.

      Mr. Max Grossman, receiver for Bay Pront Land Company.
   Ingeksoll, y. C.

Following Bankers Trust Co. v. Maxson, 100 N. J. Eq. 1: A receiver is entitled to impose a lien upon the proceeds of the sale of the mortgaged premises prior to the lien of the complainant’s mortgage for his compensation and costs. Further equities must be reserved until the filing of the receiver’s account and audit.


author: Per Cubiam.

text:
    JOSEPH FEDOR AND STEPHEN MOLNAR, PLAINTIFFS, v. LOUIS SKRIVONEK AND DOOLE’S TAXI SERVICE, DEFENDANTS.
    Submitted May 16, 1930
    Decided December 12, 1930.
    Before Justices Case, Dakt and Donges.
    Eor the rule, John A. Matthews.

      Contra, William Reich.

   Per Cubiam.

Plaintiff Joseph Eedor recovered a verdict against both defendants in the sum of $2,118.05, and plaintiff Stephen Molnar recovered a verdict against both defendants in the sum of $125.

The defendant Lonis Shrivonek did not answer and did not appear at the trial. The defendant Doole’s Taxi Service answered and defended at the trial.

A rule to show cause why the verdict in favor of Joseph Eedor should not be set aside was granted by the trial judge and two reasons are assigned thereon.

1. It is charged that the verdict in favor of plaintiff Eedor is excessive. This plaintiff was painfully injured, having suffered “a separation at the costosternal joint at the fourth and fifth ribs, or fifth rib.” He was under a doctor’s care from April 8th, 1929, to the date of trial on January 29th, 1930, and would require treatment thereafter. He suffered a total loss of earnings for three months and partial loss thereafter for some months. He earned from $40 to $45 a week. His doctor’s bills exceeded $100 at the time of trial.

The verdict is ample, but we are unable to conclude that it is excessive under the proofs.

2. Nor are we able to conclude that the verdict is against the weight of the evidence.

The plaintiffs were passengers of the defendant taxi service for hire. The taxicab and the car of the defendant Skrivonek collided head-on. The two plaintiffs testified in their own behalf and the driver of the taxicab, Joseph La Guardia, testified for defendant as to the happening. Erom their testimony and other corroborating circumstances it was a question of fact for the jury, and we are of opinion that the jury might very properly reach a verdict in favor of the plaintiffs against the defendant Doole’s Taxi Service.

The rule to show cause is discharged.


text:
    JOSEPH COMAR, PLAINTIFF, v. KELLY & McALINDEN COMPANY, DAVID R. KIPP AND FRANK P. STRYKER AND LESTER H. STRYKER, PARTNERS, TRADING AS STRYKER & STRYKER, DEFENDANTS.
    Submitted May 16, 1930
    Decided December 15, 1930.
    Before Gummeke, Chief Justice, and Justices Tkenci-iakd and Lloyd.
    For the rule, Charles Stockdell Gray.

      Contra, Quinn, Parsons & I) or emus.

   Per Curiam.

The action in this case was by Joseph Comar against the three defendants to recover damages for personal injuries. There was a verdict in his favor against all of the defendants, and Kelly & McAlinden Company and Kipp have a rule for new trial. The reasons filed are that the judge should have controlled the case by nonsuit or direction of a verdict in favor of the defendants; that there was error in rulings on evidence and in refusal to charge as requested by defendants.

There was no way in which the judge could have controlled the case by deciding it himself. There was clear proof of negligence on the part of Kipp, the driver of the KellyMcAlinden truck, and therefore on the part of his employer. The accident resulted from a collision between the Stryker truck in which the plaintiff was riding and a telegraph pole along the state highway near Laurence Harbor, caused, it was claimed, by the negligence of the driver of the McAlinden truck. The plaintiff’s version of the occurrence was that a stop street (so marked) called the Lawrence Parkway entered the state highway from his right, and that as plaintiff was proceeding on the night of the accident, the Kelly-Mc Alinden truck came out of that street without warning and forced the Stryker truck to swerve to its left to avoid it and caused the collision with the pole.

The contention of the Kelly-McAlinden Company and Kipp was that at the time of the accident the Kelly-Mc Alinden truck was standing in front of the post office off the highway near the Matawan road, was not at the time on the latter road, and that it did not move from its standing position until after the accident. This presented a question for the jury and not for the court.

While the defendants argue that a portion of the charge and denial of a request for instruction to the jury were erroneous and that the verdict was against the weight of the evidence, no reasons under the rule to show cause covering these phases of the case have been filed. We have nevertheless examined the points argued and find the criticisms of the charge to be without merit and that no request for instruction appears in the state of the ease.

On the weight of the evidence the proofs amply justified the jury’s finding.

The rule for new trial is discharged.


text:
    FRANKLIN WASHINGTON TRUST COMPANY, PLAINTIFF-RESPONDENT, v. BELGIUM REALTY COMPANY ET AL., DEFENDANTS; SAMUEL SILVER, DEFENDANT-APPELLANT.
    Submitted May 16, 1930
    Decided December 12, 1930.
    Before Justices Case, Dalv and Donges.
    Eor the appellant, Charles Handler.

    Eor the respondent,' Charles M. Myers.

   Per Curiam.

This appeal brings up a judgment entered in the Essex County Circuit Court following an order made by Judge Smith striking the answer and counter-claim of the defendant Samuel Silver.

The suit was on a promissory note. Silver’s defense as raised by the answer was that he was an accommodation endorser and that he had no notice of dishonor, and it was this point that was raised in the answering affidavits of Silver on the application to strike out the answer as sham. He counter-claimed for an amount of money which he alleged he had on deposit at the plaintiff hank and which sum the hank applied in satisfaction of the debt.

The plaintiff’s affidavits established that on the day the note fell dne it was presented and demand made for payment at the Eederal Trust Company in Newark, where the note was payable, and upon payment being refused, notice of dishonor was mailed to the defendant Silver at 29 Rose Terrace, Newark, New Jersey, by one A. E. Morlock, a notary public, who made affidavit that he protested the same, and that he sent such notice to the defendant Silver at his place of residence. Silver admits that he did live at 29 Rose Terrace, Newark, New Jersey, at the time. The counter-affidavit of Silver and that of Catherine Brady seek to establish that such notice was sent in care of J. D. Samuelson, who was payee and endorser on the note, at 21 Breitnall Place, Newark, New Jersey.

The affidavits presented on behalf of the defendant do not meet the positive and explicit proof of the mailing of the notice of protest, bnt seek by argument and inference to establish that, because several notices were sent to Samuelson, therefore, none was sent to Silver. The affidavits of defendant, however, do not support the answer and do not raise a question making a trial necessary. The conclusion is irresistible that the trial judge acted correctly in striking out fhe answer and connter-claim.

The judgment is affirmed, with costs.


author: Per Curiam,

text:
    FRANK VAN BLARCOM, ANDREW SCARNICI, THOMAS SCARNICI, BY HIS NEXT FRIEND LOUIS SCARNICI, LOUIS SCARNICI, INDIVIDUALLY, JOHN GALLIVAN, BY HIS NEXT FRIEND EMMA GALLIVAN, EMMA GALLIVAN, INDIVIDUALLY, JOSEPH KADZIK, BY HIS NEXT FRIEND JAKOB KADZIK, AND JAKOB KADZIK, INDIVIDUALLY, PLAINTIFFS, v. PUBLIC SERVICE COORDINATED TRANSPORT, A CORPORATION OF NEW JERSEY, AND CHARLES VANACKE, DEFENDANTS.
    Submitted May 16, 1930
    Decided December 15, 1930.
    Before G-ummere, Chief Justice, and Justices Trenchard and Lloyd.
    Eor the rule, Henry H. Fryling (Harold F. Dorgeval, of counsel).

      Gonira, Aaron L. Simon.

   Per Curiam,

The defendants have a rule for new trial in this case in which there were a number of plaintiffs, occupants of an automobile which collided with defendant’s bus. Plantiffs received verdicts.

The accident happened at night in Passaic at the intersection of Passaic and Colombia avenues, the plaintiffs’ car proceeding north on Colombia avenue and defendant’s bus-going east on Passaic avenue. Colombia avenue is a stop street and it was claimed that the learned trial judge erred in refusing to charge requests covering the law on this point- and the law with regard to the lights carried by an automobile. Both requests were substantially covered in the general charge.

It is next said the verdicts are excessive in amount. We think this is not so. Yan Blarcom received an award of $1,000. He received in the accident injuries to his back, wrist and head, was taken to a hospital and received treatment there and later was attended by a physician. Some of these injuries were still painful at the date of trial, seven months after the accident. He lost $290 in wages and incurred a medical bill of $33. The award does not seem to be so grossly excessive as to justify interference by the court.

The award to Andrew Scarnici for $3,000 seems justified. His injuries consisted of a cut near the eye, lacerations of the leg and a number of cuts on his back, legs and ankle. He was employed as a bricklayer receiving wages of $14 per day and was obliged to remain away from his work for a period of three months. His injuries required medical attendance, particularly the lacerations on the face and legs. We cannot say that this award was excessive.

The verdict awarded to Joseph Kadzik of $2,000 was clearly not excessive. His injuries were severe and the effects in some instances permanent. He was obliged to lose five months at his work and it is claimed that when he returned to work his wages were reduced by reason of his inability to work as before.

To Jacob Kadzik, the father of Joseph, there was an award of $1,000. Here again we think the verdict was not excessive. The loss of wages already accrued, the medical attendance and the prospective diminution of the son’s earning power during; minority evinces that the verdict was not excessive.

It is said in defendant’s brief that the complaint alleged money loss to the father only for medical expenses and that no proof was presented of such payments. The case, however, seems to have been tried upon the theory of a money loss in wages and there was abundant proof of medical attendance which presumably must be paid for.

The remaining awards were small in amount, do not appear to be excessive and call for no special comment.

The rule is discharged.


text:
    JOHN B. NEWBY, PLAINTIFF, v. JAMES LETTS, DEFENDANT.
    Argued May 16, 1930
    Decided December 15, 1930.
    Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
    Eor the rule, George L. Burton.

    Contra, Quinn, Parsons & Doremus (Theodore D. Parsons and Theodore J. Labrecque, of counsel).
   Per Curiam.

The defendant has a rule for new trial and as reasons for making the rule absolute contends that the verdict is against the weight of the evidence and that the damages are excessive.

The claim was for personal injuries received in a collision between an automobile driven by the plaintiff and a car of the defendant, and for the loss of plaintiff’s car valued at $275.

Plantiff was proceeding easterly on his right side of the Atlantic Highlands road when he collided with defendant’s car. The controversy turns upon whether plaintiff struck defendant’s car when in plain view on the highway or whether the defendant struck plaintiff’s car while turning into the highway. Defendant lives on the north side of the highway and proceeded out of his driveway into the road. He testified he did so when plaintiff was five hundred feet distant on his right; that he made a turn to the left and when fully turned and on the south side of Atlantic Highlands road and yet in that highway, he was struck by plaintiff’s car. The plaintiff testified that defendant passed entirely across the road and into the trolley right of way and was hidden from view behind trees on that side, and that when plaintiff reached the place of the accident defendant’s car came out without warning and the collision occurred.

While the number of witnesses preponderates in favor of the defendant’s story, there are circumstances connected with the accident strongly corroborating the plaintiff’s version, and we think a fair jury question was presented.

As to the damage of $5,000 for a hernia and temporary bruises, defendant presented proofs that an inguinal hernia cannot result from injury, but other medical proofs in the case are to the contrary. In addition to the physical pain and loss of his car, the plaintiff had substantial bills for treatment. lie worked regularly up to the time of the accident at his job and has never been able to do so from that time to the date of trial, a period of fourteen months.

The award is not so clearly excessive as to justify the court in disturbing the verdict.

The rule will be discharged.


text:
    ELLA REDFIELD AND ALLAN W. REDFIELD, PLAINTIFFS, v. RAYMOND HURFF, DEFENDANT.
    Submitted May 16, 1930
    Decided December 15, 1930.

      Before Gummeee, Chief Justice, and Justices Teehci-iakd and Lloyd.
    Eor the rule, Norman H. Harlcer.

      Contra, Henry M. Evans and Albert S. Woodruff.

   Pee Cueiam.

This is the defendant’s rule in an accident case in which the woman plaintiff was injured, and damages of $3,500 were awarded to her, and $1,500 to her husband.

It is urged that the court should have granted defendant’s motion for nonsuit, and that in any event the verdicts were against the weight of the evidence. The court could not legally grant the motion and in our view the verdicts are not against the weight of the evidence.

How the accident occurred must be ascertained principally from the testimony of the woman plaintiff and that of the defendant. The case made by the plaintiffs was that Mrs. Redfield was a passenger on a bus proceeding south on Broadway in the city of Gloucester. Alighting she passed in front of the bus intending to cross the street. As she reached the outer edge of the bus she looked and seeing no approaching vehicle started across. When she had taken two or three steps the defendant’s car came from behind the bus without warning and struck her. The accident happened just short of a street crossing with the red light against the defendant.

If this testimony is true, and of its truth the jury were to be the judge, plaintiff had equal rights on the highway with the defendant and the jury could well conclude that the defendant was negligent and that the plaintiff was in the exercise of reasonable care.

The request for instructions was properly denied. Consolidated Traction Co. v. Behr, 59 N. J. L. 480.

Respecting the amount of the verdict of $3,500 for Mrs. Pedfield: She was struck, knocked down, rendered unconscious and taken to the office of a nearby physician. Her injuries were principally to the saero-iliac region, were painful, incapacitated her for work for a considerable period of time and resulted in extended nervousness. She had to wear a belt for a year and a half and is still feeling the effects of the accident; as an indication she fainted on the stand. The award does not seem to us to be excessive. Zito v. Ingersoll, 147 Atl. Rep. 400; 7 N. J. Mis. R. 893.

The award of $1,500 to the husband likewise seems unobjectionable. lie had medical bills, had to employ a housekeeper during the wife’s complete inability and at times thereafter. This, combined with the loss of the normal companionship of a healthy wife, would seem to indicate that, the damages were not excessive.

The rule is discharged.


text:
    FRANCIS B. FARLEY AND ELIZABETH D. FARLEY, PLAINTIFFS, v. PHILADELPHIA INQUIRER, A CORPORATION, AND GEORGE R. PELOUZE, DEFENDANTS. PHILADELPHIA INUIRER, A CORPORATION, PLAINTIFF, v. GEORGE R. PELOUZE, DEFENDANT.
    Submitted May 16, 1930
    Decided December 15, 1930.
    Before Gummebe, Chief Justice, and Justices Tkenchaed and Lloyd.

      Eor the rules, James Mercer Davis.

    Contra, Albert 8. Woodruff and T. Harry Rowland.

   Pee Cueiam.

In these two eases the Philadelphia Inquirer has rules for new trial which were argued together. The Inquirer was (for all practical purposes under the rules), the defendant in the two cases, in one of which Mrs. Earley, an injured woman, recovered a verdict of $7,500, her husband a verdict of $5,000, and Pelouze a verdict of $2,000.

The actions arose out of a collision between the Inquirer’s Eord car and the Cadillac of Pelouze, the latter driven by his son, but claimed to have been borrowed by and at the time under the control of a Mrs. Duffy.

The reasons urged for making the rules absolute are that the verdicts were contrary to the evidence and its weight as to the award to Pelouze, and that there was error in the charge respecting the liability of Pelouze, and the negligence of his son.

The collision occurred on the White Horse pike, perhaps the most traveled highway in South Jersey. The Eord car of the Inquirer was attempting to make a left turn on a straightaway part of that highway when the Cadillac, proceeding north, collided with it. There was proof that Mrs. Duffy borrowed the car and directed its movements on the occasion in question, Pelouze’s son acting as chauffeur'. The learned trial judge submitted to the jury not only the question of the negligence of the son as the servant of the father, but also the question of the responsibility of Pelouze for the operation of his car on the occasion in question, and this is alleged to be error.

We think both questions were fairly in the case and the jury might well have concluded that the son was not negligent, or even though negligent, that the father was not chargeable with responsibility therefor.

The rules for new trial will be discharged.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR. v. ERNEST P. BOND, PLAINTIFF IN ERROR.
    Argued May 16, 1930
    Decided December 15, 1930.
    Before G-raaiEBE, Chief Justice, and Justices Teen■chabd and Lloyd.
    Eor the plaintiff in error, Augustus S. Dreier (John P. Owens, of counsel).
    For the defendant in error, Francis Bergen, prosecutor.
   Peb Cubiam.

The defendant was convicted of carnal abuse of Ruth Dim-mick, a girl child between twelve and sixteen years of age, .and seeks a reversal of the judgment imposed upon him in consequence. The ease is here on both assignments of error and specifications of causes for reversal.

The first of these is that the court permitted a witness to testify to an admission made by defendant as to his age, it being claimed that this was hearsay under the case of Kiely v. Mac Murray, 139 Atl. Rep. 343; 5 N. J. Mis. R. 1091. This is a misconception of the ruling in the case cited. There it was an effort to prove the age of a police officer by the statement of the officer’s aunt. Here it was a statement made by the defendant himself; certainly not hearsay. Being an admission against interest it was proof of the highest order.

It is next urged that there should have been an acquittal directed by the court, and this because the evidence failed to disclose that the age of the complainant was over twelve and under sixteen years, and that the defendant was over the age of sixteen years. There was ample proof of the girl’s age and as we have seen there was proof of the defendant’s, admission of his own age.

It is next urged that the court erred in charging the jury as follows:

“It is proven that this girl is under the age of sixteen years and over the age of twelve years.”

“The evidence justifies that if this act was committed, if it was committed by the defendant at all, was done and took place in the township of Bridgewater, in this county.”

•A reading of the charge clearly evinces on the first point that the judge was simply telling the jury in substance what had been testified to. He was careful to tell the jury that they must be the sole judges of the facts. It was not a trespass upon their prerogative.

There was no error in the second portion of the charge. It was simply a statement that if the act was committed at all, the evidence justified a finding that it took place in the township of Bridgewater, in the county of Somerset, and this was true.

Nor was there error in submitting to the jury whether the defendant was above the age of sixteen. He had admitted to the officer that he was twenty-six years old and he was. not called to the stand to deny that he had so stated.

The requests for instructions, while not specifically charged, were substantially covered in the general instructions to the jury.

Finding no error, the judgment is affirmed.


text:
    PETER N. BETHANIS, PLAINTIFF, v. CELIA SIEGEL AND ISRAEL SIEGEL, DEFENDANTS. SADIE KOTOK AND FRANK KOTOK, HER HUSBAND, AND DAVID KOTOK, PLAINTIFFS, v. ISRAEL SIEGEL, DEFENDANT.
    Submitted May 16, 1930
    Decided December 15, 1930.
    .Before Gummebe, Chibe Justice, and Justices Tben<ci-iabd and Lloyd.
    Eor the rule, Cecil W. Rotzell.

      Contra, Willis Tullis Porch and Leroy W. Loder.

   Pee Curiam.

These cases were brought to recover for personal injuries :and property damage resulting from a collision between the .automobile of the plaintiff Bethanis and that of the defendant Siegel. The cases were tried together and resulted in verdicts against Israel Siegel in favor of the plaintiff Bethanis for $1,000; for Sadie Kotok, $3,000; for her husband, Prank Kotok, $800, and for David Kotok, $10.

The defendant Siegel has a rule for new trial in each case and it is claimed that the verdicts were against the weight of the evidence, that the damages are excessive, and that the court erred in refusing to declare a mistrial and in its ruling on evidence.

Bethanis’ injuries consisted of a cut on the forehead,, bruises on the arm, to his knee cap and scratches on his shin bone and a cut thumb. The head injury left a scar. He-could do nothing for two weeks, had bills of about $100 for assistance in his business and hospital charges and suffered, the loss of his car worth $100. He claimed to have suffered, much pain, is nervous, cannot drive a car and is impaired in-his business activities.

In Mrs. Kotok’s case there was proof of considerable injury and suffering, á resultant miscarriage, and a scar on the-forehead.

The husband’s claim was for his wife’s medical expenses- and for loss of consortium. Actual expenses of $335 were-proved. The verdicts seem to us not to be excessive.

As to the weight of evidence, the jury could well find that, the accident was caused by the defendant crossing from his-own side to the opposite side of the highway on which the two cars were approaching each other, and directly in the face of the Bethanis car, and this would justify an inference-of negligence.

The insurance feature was injected into the case by the-doctor and apparently without the knowledge of plaintiff’s counsel. The judge expressed his readiness to instruct the jury to disregard it, but defendant’s counsel requested him not to do so. The mistrial was, we think, rightly dismissed. Defendant’s offer of the report made by the police sergeant to his department' was incompetent and properly overruled.

The rule for new trial is discharged.


author: Porter, J.

text:
    Essex County Circuit Court.
    PETER DORSA, Jr., BY HIS NEXT FRIEND, PETER DORSA, AND PETER DORSA, INDIVIDUALLY, v. PUBLIC SERVICE CO-ORDINATED TRANSPORT, A CORPORATION.
    For the plaintiff, Stein, McGlynn & Ilannoch.

    For the defendant, Henry II. Fryling.

   Porter, J.

This is an application for an order directing the clerk of this court to issue execution against the defendant on a judgment recovered in this court by the plaintiff as next friend for Peter Dorsa, Jr.

The facts, as agreed to, are as follows:

Peter Dorsa, Jr., is an infant under the age of twenty-one years. Judgment was recovered in his favor against the defendant in the sum of $1,725 damages and $167.50 costs. The attorneys for the plaintiff seek to collect the amount of the judgment, and tender to the defendant a warrant of satisfaction of said judgment executed by them as attorneys. The attorney for the defendant refuses to pay the judgment, and insists upon a warrant executed by a guardian of the estate of the infant duly appointed and qualified.

The question thus presented is whether the next friend has authority to represent the infant after judgment.

The statute (Comp. Stat., p. 4055, § 18), provides for the appointment of a guardian “to prosecute or defend” an action for or against an infant. This guardian is usually called “next friend.” His authority is restricted to the prosecution or defense of the suit, and ends there. He has no authority to act for the infant beyond that, and so cannot collect the judgment.

In this case the next friend is the father of the infant. As such he is the natural guardian of the person of his son. He is not, however, the guardian of the estate of his son, who alone is entitled to the possession of property of the infant. Such guardian must be appointed as required by the Orphans Court act, section 40, and must give security for the faithful performance of his office as provided by section 49 of said act.

The motion is denied.


author: Bodine, J.

text:
    IN THE MATTER OF ELECTION FOR MAYOR, BOROUGH OF LAVALLETTE, NOVEMBER 4TH, 1930.
    Decided December 15, 1930.
    Eor the applicant, Enoch T. YanCamp ot al., Ira F. Smith.

    For Carl B. Wyncoop, Applegate, Stevens, Foster & Reussile.

   Bodine, J.

On November 4th, 1930, an election was held in the borough of Lavalette to fill the office of ma3ror. The count showed that one hundred and forty-eight votes had been cast for Carl B. Wyncoop and one hundred and forty-six for Enoch T. YanCamp. An order for recount was entered and the county board of election met and examined the ballots. The result was that one hundred and fil^-one votes were counted for Wyncoop and one hundred and fifty-four votes for YanCamp. By stipulation, the disputed ballots were submitted to the court after counsel had examined the pertinent authorities. A difference arising as to the significance of the total votes cast, by agreement of counsel all the ballots were again counted by the county board of election in the presence of the court on December 2d, last, with the result that one hundred and fifty-three ballots were counted for W3mcoop and one hundred and fifty-two for YanCamp. There were in all three hundred and twenty-three votes cast.

The sole question reserved was whether any one or more of the votes rejected should have been counted for YanCamp. These votes are of substantially the same form. The voter wrote the name of Mr. VanCamp in the place designed for personal choice, but failed to make a cross or plus to the left of the name as required by law.

Chapter 187 of the laws of 1930 is a general revision of the election laws of this state. On page 733, the legislature has provided the instructions to appear at the head of the ballot. These instructions, so far as pertinent, were given at the head of the ballots used at the election in question: “(1) The only kind of a mark to be made on this ballot in voting shall be a cross X or a plus +. (4) To vote for any person whose name is not printed on this ballot write or paste the name of such person under the proper title of office in the column designated Personal Choice and mark a cross X or plus -f- in the square to the left of the name so written or pasted.”

The legislature provided, page 759, paragraph 191, section 36, for the manner in which the votes should designate his personal choice. Article 15, page 764, requires that the votes shall be based on the ballot markings. Paragraph 304, section 3, subdivision D, is as follows: “Where the name of any person is written or pasted in the column designated Personal Choice, and a cross X or plus + appears in the square to the left of such name, it shall be counted as a vote for such person.”

Subdivision G, page 765, is as follows: “If the mark for any candidate or * * * is substantially a cross X or plus + and is substantially within the square, it shall be counted for such candidate or * * * as the case may be. No vote shall be counted for any candidate in any column or * * *, unless the mark is substantially a cross X or plus + and is substantially within the square.”

It is apparent that the legislative enactment was intended as a general regulation of the whole matter of elections, and that under the legislative scheme no authority exists to count ballots not marked in accordance with law.

The argument in behalf of Mr. VanCamp is that the intention of the voter is defeated by not counting the ballots in which the voter has written in in the column of personal -choice the name of his candidate but has failed to mark to the left thereof any plus + or cross X mark. By the form ■of ballot prevailing in this state, the voter is given ample instructions as to the manner in which he shall express his preference. If he fails so to do, no authority exists to express his purpose.

“The official ballot laws ordinarily provide specifically the manner by which the choice of the voter shall be indicated. These statutory provisions fall into two general groups: (1) Those which require the voter to indicate his choice by separately designating each particular candidate for whom he desires to vote, and (2) those which provide for the grouping of the nominees of each party represented at the election and allowing the whole of such group to be voted for by a single mark placed in a circle following the party name or ■designation of the particular group. Such requirements are as a general rule held to be mandatory.” 20 Corp. Jur. 154.

“Under the statutes requiring the voter’s choice to be indicated by the placing of a cross mark a ballot which contains no cross mark cannot be counted, even though the voter writes names in the blank spaces therefor.” 20 Corp. Jur. 156.

“In order to permit the counting of a ballot, the voter’s intention must be manifested by a cross substantially in the place designated, showing an honest intent to follow the directions of the law.” 20 Corp. Jur. 157.

It is apparent from the recount that all the votes which can be counted for both of the candidates have been allocated to each, and the result is that Mr. Wyncoop has been elected mayor of the borough of Lavalette by a majority of one.


text:
    WILLIAM HUGHES, PLAINTIFF, v. ELIZABETH ENGLISH, DEFENDANT.
    Submitted May 16, 1930
    Decided December 15, 1930.
    Before Gummere, Chiee Justice, and Justices Trenchard and Lloyd.
    Por the rule, James Mercer Davis.

      Contra, William C. French.

   Per Curiam.

The plaintiff recovered a verdict of $7,500 and the defendant has a rule to show cause why a new trial should not be-awarded as to damages only.

Under this rule the defendant has argued five reasons for-setting aside the verdict. These are that the verdict is-against the evidence and its weight, that the court erred- in refusing to grant a nonsuit and to declare a mistrial, and that the damages are excessive.

Whether under such a rule the legal questions can be urged it is not necessary to consider, inasmuch as we think that no-one or all of the reasons justify disturbance of the verdict.

The action was to recover damages for personal injuries-sustained by a policeman as he was about to relieve a feilow traffic officer, resulting from a collision between a truck and ■defendant’s automobile. The evidence justified a finding that the defendant drove her ear west on Linden street in the city of Camden and attempted to cross Eighth street and collided with a truck going north to which the traffic officer had given the right of way. The result was that the truck was thrown out of its course and struck the plaintiff, causing the injuries for which the action was brought.

The motion for nonsuit was predicated on a claim that the plaintiff himself was guilty of contributory negligence under the proofs narrated. The motion could not have been granted. The officer was in the lawful discharge of his duty, about to relieve a brother traffic officer. He was necessarily in the body of the street for that purpose. He could hardly be supposed to anticipate that the defendant would drive her car against the traffic directions and collide with another vehicle and thereby cause injury to one in his situation.

The refusal to declare a mistrial was not error. The plaintiff was asked this question: “I think it was in the testimony that your mind was hazy for how long?” and the court said, “The question is, ‘for long long.’ ” This was objected to and the objection overruled and the witness answered: “For quite some time after that I have a hazy recollection of some conversation, I believe it was from Mrs. English, that the insurance company would take care of me.” Counsel for the defendant then asked for a mistrial. There had been a similar episode in the proofs when counsel for the defendant offended by asking the plaintiff if he had accident insurance ■of any kind, and the court in denying the defendant’s motion for a mistrial immediately directed the jury not to concern themselves with the question of whether or not there was .any insurance involved in the case.

We cannot say that in this there was abuse of the discreton permitted to the trial court. The subject has been elaborately discussed in the Court of Errors and Appeals in Sutton v. Bell, 79 N. J. L. 507, and recently in the case of Patterson v. Surpless and Miller, 8 N. J. Adv. R. 589; 151 Atl. Rep. 754 (not yet officially reported).

In the present case there was nothing to indicate a purpose on the part of either plaintiff or his counsel to prejudice the minds of the jurors and the learned trial judge was alert to-see that no injury resulted from the injection of the remark.

Our examination of the proofs convinces us that the verdict was not against the weight of the evidence and that the damages were not excessive. The proofs already narrated and others to be found in the record amply justified a finding of the defendant’s negligence and that the whole evidence failed to establish that the plaintiff was guilty of negligence contributing to his injuries which were severe and lasting, necessitating his withdrawal from duty as a street officer and his transfer to an office desk in the department.

The rule for new trial is discharged.